Although our legislature mandates that persons convicted of first or second-degree crimes must be sentenced to prison, as opposed to probation, there are limited circumstances where defendant can still receive a sentencing downgrade to probation for a first or second-degree crime. Note that probation as used here refers to “standard probation” as opposed to drug court’s “special probation.” Applicants are often accepted into the drug Court special probation program with second-degree charges (although first-degree charges are a per se bar to admission). Note that “special probation” oversight is much more rigorous than that of standard probation.
The limited exceptions for which a defendant convicted of a first or second-degree crime can receive standard probation are governed by two statutes. The first, and rarest of the two statutory exceptions, the “serious injustice” exception, reads as follows:
The Court shall deal with a person who has been convicted of a crime of the first or second degree . . . by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant , it is of the opinion that her imprisonment would be a serious injustice which overrides the need to deter such conduct by others. N.J.S.A. 2C :44-l(d).
The “serious injustice” standard found in N.J.S.A. 2C:44- l(d) is not the same as the “in the interest of justice ” standard found in section 44-lf(2). State v. Megargel, 143 N .J . 484, 499 (1996). First, the language of the two statutes is different. Id. In 2C :44-l(d) the “character and condition of
the defendant ” are specifically to be considered. Id. In section 44-lf(2), there is no reference to the defendant ‘s character or condition. Id.
The fact that the “serious injustice” standard allows for the character and condition of the defendant to be considered, whereas the “in the interest of justice” standard does not allow for that consideration, would seem to indicate that the “serious injustice” standard is the broader means to achieve a downgraded sentence. However, as the ensuing case law will demonstrate, mental retardation and imminent death are the only two recognized “conditions” that support sentencing downgrade under the “serious injustice” standard. Therefore, the “in the interest of justice” standard remains the broader provision for sentencing downgrades.
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