Additionally, the two statutes address two qualitatively different criminal law situations. Id. 2C :44-l(d) governs imprisonment versus non-imprisonment, a more serious condition, while section 2C :44-lf(2) governs whether or not a defendant convicted of a crime should be sentenced as if convicted of a crime one degree lower. Id. This means that a first or second-degree conviction that is downgraded under the “serious injustice” standard, can be the basis for a sentence of probation with no jail time. On the other hand, a sentence that is downgraded under the “in the interest of justice” standard, must still call for a prison term, albeit for a term of years that is consistent with a crime that is one degree lower than the crime at issue. Thus, a first-degree sentence that is downgraded under the interest of justice standard will fall within the 5 to 10 year prison term range as opposed to the standard 10 to 20 year term. A second-degree sense that is downgraded under the interest of justice standard protocol for a 3 to 5 year prison term, as opposed to 5 to 10 years.
Note the criminal code does not allow for third-degree sentences to be downgraded to the fourth degree sentencing hearing. See 2C :44-lf(2). This prohibition does not have much of a practical effect since every few third or fourth degree criminal law convictions call for mandatory prison time. Therefore, probation without jail time can almost always be given for third or fourth degree offenses without resort to our criminal code’s sentencing downgrade provisions.
Returning to those very rare criminal law cases where the “serious injustice” standard has been held to justify probationary sentences for first and second degree offenders, in State v . Jarbath, 114 N.J. 394 (1989), the twenty-one year old defendant who was mentally retarded and diagnosed as psychotic was charged with the knowing murder of her nineteen-day-old son. Id. at 398. In finding that it would be a “serious injustice” to imprison Jarbath, the Court concluded that as long as she was not a danger to the community and could get adequate care through placement in supervised educational, vocational, and recreational programs, prison was not the appropriate setting for her. Jarbath, at 399. Accordingly, the Appellate Division re-sentenced defendant as a third-degree offender to a five-year probationary term conditioned on: (1) receipt of psychiatric care; (2) participation in an Association of Retarded Citizens Program; (3) regular reporting to the Probation Department; (4) residence with family members; and (5) not living with any child under five years of age in the same house. Id.
In Jarbath, the Appellate Division disagreed with the trial court ‘s determination and reasoning with respect to the existence as well as the balancing of aggravating and mitigating factors. Id. at 403. The Appellate Court found that there was a “lack of any aggravating factors” and instead, the presence of “extreme mitigating factors”, in particular, factors (2), (4), (7), (8), and (9). Id. It then determined that these mitigating factors militated in favor of downgrading the offense and imposing a non-custodial term. Id. The Supreme Court concurred in the conclusion of the Appellate Division. Id. at 404. The New Jersey Supreme Court concluded that, in sum, as determined by the Appellate Division, the “serious injustice”of imprisonment under Jarbath’s circumstances clearly outweighs the needs of general deterrence. Id. at 409.
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