2A:4A-44 Incarceration - aggravating and mitigating factors.

25. Incarceration--Aggravating and mitigating factors

a. (1) In determining whether incarceration is an appropriate disposition and in addition to the considerations set forth in subsection i. of section 2 of P.L.1982, c.77 (C.2A:4A-21), the court shall consider the following aggravating circumstances:

(a) The fact that the nature and circumstances of the act, and the role of the juvenile therein, was committed in an especially heinous, cruel, or depraved manner;

(b) The fact that there was grave and serious harm inflicted on the victim and that based upon the juvenile's age or mental capacity the juvenile knew or reasonably should have known that the victim was particularly vulnerable or incapable of resistance due to advanced age, disability, ill-health, or extreme youth, or was for any other reason substantially incapable;

(c) The character and attitude of the juvenile indicate that the juvenile is likely to commit another delinquent or criminal act;

(d) The juvenile's prior record and the seriousness of any acts for which the juvenile has been adjudicated delinquent;

(e) The fact that the juvenile committed the act pursuant to an agreement that the juvenile either pay or be paid for the commission of the act and that the pecuniary incentive was beyond that inherent in the act itself;

(f) The fact that the juvenile committed the act against a policeman or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority, or the juvenile committed the act because of the status of the victim as a public servant;

(g) The need for deterring the juvenile and others from violating the law;

(h) The fact that the juvenile knowingly conspired with others as an organizer, supervisor, or manager to commit continuing criminal activity in concert with two or more persons and the circumstances of the crime show that he has knowingly devoted himself to criminal activity as part of an ongoing business activity;

(i) The fact that the juvenile on two separate occasions was adjudged a delinquent on the basis of acts which if committed by an adult would constitute crimes;

(j) The impact of the offense on the victim or victims;

(k) The impact of the offense on the community; and

(l) The threat to the safety of the public or any individual posed by the child.

(2) In determining whether incarceration is an appropriate disposition the court shall consider the following mitigating circumstances:

(a) The child is under the age of 14;

(b) The juvenile's conduct neither caused nor threatened serious harm;

(c) The juvenile did not contemplate that the juvenile's conduct would cause or threaten serious harm;

(d) The juvenile acted under a strong provocation;

(e) There were substantial grounds tending to excuse or justify the juvenile's conduct, though failing to establish a defense;

(f) The victim of the juvenile's conduct induced or facilitated its commission;

(g) The juvenile has compensated or will compensate the victim for the damage or injury that the victim has sustained, or will participate in a program of community service;

(h) The juvenile has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present act;

(i) The juvenile's conduct was the result of circumstances unlikely to recur;

(j) The character and attitude of the juvenile indicate that the juvenile is unlikely to commit another delinquent or criminal act;

(k) The juvenile is particularly likely to respond affirmatively to noncustodial treatment;

(l) The separation of the juvenile from the juvenile's family by incarceration of the juvenile would entail excessive hardship to the juvenile or the juvenile's family;

(m) The willingness of the juvenile to cooperate with law enforcement authorities;

(n) The conduct of the juvenile was substantially influenced by another person more mature than the juvenile.

b. (1) There shall be a presumption of nonincarceration for any crime or offense of the fourth degree or less committed by a juvenile who has not previously been adjudicated delinquent or convicted of a crime or offense.

(2) Where incarceration is imposed, the court and a panel comprised of at least two members of the Juvenile Justice Commission designated by the executive director and a member of the State Parole Board designated by the chairman shall consider the juvenile's eligibility for release pursuant to the provisions of subsection d. of this section.

c. The following juveniles shall not be committed to a State juvenile facility:

(1) Juveniles age 11 or under unless adjudicated delinquent for the crime of arson or a crime which, if committed by an adult, would be a crime of the first or second degree; and

(2) Juveniles who are developmentally disabled as defined in paragraph (1) of subsection a. of section 3 of P.L.1977, c.82 (C.30:6D-3).

d. (1) When the court determines that, based on the consideration of all the factors set forth in subsection a., the juvenile shall be incarcerated, unless it orders the incarceration pursuant to subsection c. of section 24 of P.L.1982, c.77 (C.2A:4A-43), it shall state on the record the reasons for imposing incarceration, including any findings with regard to these factors, and commit the juvenile to the custody of the Juvenile Justice Commission which shall provide for the juvenile's placement in a suitable juvenile facility pursuant to the conditions set forth in this subsection and for terms not to exceed the maximum terms as provided herein for what would constitute the following crimes if committed by an adult:

(a) Murder under 2C:11-3a(1) or (2) 20 years

(b) Murder under 2C:11-3a(3) 10 years

(c) Crime of the first degree, except murder 4 years

(d) Crime of the second degree 3 years

(e) Crime of the third degree 2 years

(f) Crime of the fourth degree 1 year

(g) Disorderly persons offense 6 months

(2) The period of confinement shall continue until the panel established pursuant to subsection b. of this section determines that the person is eligible for early release on parole or until expiration of the term of confinement, whichever shall occur first; except that in no case shall the period of confinement and parole exceed the maximum provided by law for the offense. A juvenile shall be granted early release on parole when it appears that the juvenile has made substantial progress toward positive behavioral adjustment and rehabilitative goals articulated by the panel established pursuant to subsection b. of this section to the juvenile. However, if a juvenile is approved for parole by the panel established pursuant to subsection b. of this section prior to serving one-third of any term imposed for any crime of the first, second, or third degree, including any extended term imposed pursuant to paragraph (3) or (4) of this subsection, or one-fourth of any term imposed for any other crime the granting of parole shall be subject to approval of the sentencing court. Prior to approving parole, the court shall give the prosecuting attorney notice and an opportunity to be heard. If the court denies the parole of a juvenile pursuant to this paragraph it shall state its reasons in writing and notify the panel established pursuant to subsection b. of this section, the juvenile, and the juvenile's attorney. The court shall have 30 days from the date of notice of the pending parole to exercise the power granted under this paragraph. If the court does not respond within that time period, the parole will be deemed approved.

The panel established pursuant to subsection b. of this section shall determine at the time of release the conditions of parole, which shall be appropriately tailored to the needs of each juvenile. Any conditions imposed at the time of release or modified thereafter as a graduated intervention in lieu of initiating parole revocation proceedings shall constitute the least restrictive alternatives necessary to promote the successful return of the juvenile to the community. The juvenile shall not be required to enter or complete a residential community release program, residential treatment program, or other out-of-home placement as a condition of parole unless it is determined that the condition is necessary to protect the safety of the juvenile.

Any juvenile committed under P.L.1982, c.77 (C.2A:4A-20 et seq.) who is released on parole prior to the expiration of the juvenile's maximum term may be retained under parole supervision for a period not exceeding the unserved portion of the term. The panel established pursuant to subsection b. of this section, the juvenile, the juvenile's attorney, the juvenile's parent or guardian or, with leave of the court any other interested party, may make a motion to the court, with notice to the prosecuting attorney, for the return of the juvenile from a juvenile facility prior to the juvenile's parole and provide for an alternative disposition which would not exceed the duration of the original time to be served in the facility.

(3) Upon application by the prosecutor, the court may sentence a juvenile who has been convicted of a crime of the first, second, or third degree if committed by an adult, to an extended term of incarceration beyond the maximum set forth in paragraph (1) of this subsection, if it finds that the juvenile was previously adjudged delinquent on at least two separate occasions, for offenses which, if committed by an adult, would constitute a crime of the first or second degree. The extended term shall not exceed five additional years for an act which would constitute murder and shall not exceed three additional years for all other crimes of the first degree and shall not exceed two additional years for a crime of the second degree, if committed by an adult, and one additional year for a crime of the third degree, if committed by an adult.

(4) Upon application by the prosecutor, when a juvenile is before the court at one time for disposition of three or more unrelated offenses which, if committed by an adult, would constitute crimes of the first, second or third degree and which are not part of the same transaction, the court may sentence the juvenile to an extended term of incarceration not to exceed the maximum of the permissible term for the most serious offense for which the juvenile has been adjudicated plus two additional years.

(5) The panel established pursuant to subsection b. of this section may impose a term of post-incarceration supervision following the juvenile's release from custody only if it is deemed necessary to effectuate the juvenile's rehabilitation and reintegration into society. Post-incarceration supervision shall not exceed six months, except the term may be extended for an additional six months if the panel established pursuant to subsection b. of this section deems continuation of the post-incarceration supervision necessary to effectuate the juvenile's rehabilitation and reintegration into society. Post-incarceration supervision shall not exceed one year. Post-incarceration supervision shall not be imposed on any juvenile who has completed a period of parole supervision of six months or more. The term of post-incarceration supervision shall commence on the date of the expiration of the juvenile's maximum sentence. During the term of post-incarceration supervision the juvenile shall remain in the community and in the legal custody of the commission. The juvenile shall not be required to enter or complete a residential community release program, residential treatment program, or other out-of-home placement as a condition of post-incarceration supervision. A term of post-incarceration supervision imposed pursuant to this paragraph may be terminated by the panel established pursuant to subsection b. of this section or court if the juvenile has made a satisfactory adjustment in the community while under supervision and if continued supervision is not required.

(6) The commission shall review the case of each juvenile sentenced to a term of commitment with the commission at least every three months and submit a status report to the court, the prosecutor, and the counsel for the juvenile. The commission's review and status report shall include, but not be limited to:

(a) information on the treatment, care, and custody of the juvenile;

(b) whether the juvenile is receiving the mental health, substance abuse, educational, and other rehabilitative services necessary to promote the juvenile's successful reintegration into the community;

(c) any incidents of violence involving the juvenile; and

(d) the juvenile's eligibility for parole.

Counsel for the juvenile shall have the opportunity to respond to the report required pursuant to this paragraph.

The commission shall continue to submit quarterly reports to the court until the juvenile is paroled or released at the expiration of the term of incarceration and shall resume the quarterly reviews if the juvenile is returned to the custody of the commission. The court may conduct a hearing at any time to determine whether commitment with the commission continues to be appropriate pursuant to section 24 of P.L.1982, c.77 (C.2A:4A-43) and section 25 of P.L.1982, c.77 (C.2A:4A-44), and may release the juvenile or otherwise modify the dispositional order. Nothing in this paragraph shall abrogate the court's retention of jurisdiction pursuant to section 26 of P.L.1982, c.77 (C.2A:4A-45).

e. If the panel established pursuant to subsection b. of this section determines there is probable cause to believe that the juvenile has seriously or persistently violated the terms and conditions of parole, the commission shall conduct a hearing to determine if the juvenile's parole should be revoked. The juvenile shall be represented by counsel at the hearing. The hearing shall be conducted by a hearing officer who is licensed as an attorney-at-law in this State. The juvenile shall not be incarcerated prior to the hearing unless the panel established pursuant to subsection b. of this section determines by objective and credible evidence that the juvenile poses an immediate and substantial danger to public safety. If the juvenile is incarcerated prior to the hearing, the hearing shall be held within 72 hours of the juvenile's return to custody and a written decision made and transmitted to the juvenile and the juvenile's counsel within 48 hours of the hearing. Upon request of counsel for the juvenile, the hearing officer shall adjourn the hearing for not more than 72 hours. Subsequent adjournments may be granted upon request of the juvenile and good cause shown.

The panel established pursuant to subsection b. of this section shall not revoke the parole of a juvenile unless the hearing officer determines, by clear and convincing evidence, that:

(1) the juvenile has seriously or persistently violated the conditions of parole;

(2) the juvenile poses a substantial danger to public safety and no form of community-based supervision would alleviate that danger; and

(3) revocation is consistent with the provisions of section 2 of P.L.1982, c.77 (C.2A:4A-21).

The procedures and standards set forth in sections 15 through 21 of P.L.1979, c.441 (C.30:4-123.59 through C.30:4-123.65) shall apply to juvenile parole revocation hearings, unless the procedures and standards conflict with those set forth in this subsection.

Notwithstanding a determination that the juvenile violated a condition of parole, the panel established pursuant to subsection b. of this section may modify those conditions.

f. The panel established pursuant to subsection b. of this section may relieve a juvenile of any parole conditions, and may permit a parolee to reside outside the State pursuant to the provisions of the Interstate Compact on Juveniles, P.L.1955, c.55 (C.9:23-1 to 9:23-4), and after providing notice to the Attorney General, may consent to the supervision of a parolee by the federal government pursuant tothe federal Witness Security Reform Act, Pub.L.98-473 (18 U.S.C. s.3521 et seq.). The panel established pursuant to subsection b. of this section may revoke permission, except in the case of a juvenile under the Witness Security Reform Act, or reinstate relieved parole conditions for any period of time during which a juvenile is under its jurisdiction.

g. The commission shall promulgate rules and regulations governing the commission's duties and responsibilities concerning parole eligibility, supervision, and revocation.

h. The member of the State Parole Board who is designated by the chairman to be on the panel established pursuant to subsection b. of this section shall have experience in juvenile justice or have successfully completed a juvenile justice training program to be established by the chairman. The training program shall be comprised of seven hours of instruction including, but not limited to: emerging scientific knowledge concerning adolescent development, particularly adolescent brain function and how adolescent development relates to incarcerated youth, the influence of peer relationships among adolescents and peer contagion effects, and the effects of juvenile crime on victims.

i. Any decision concerning parole made by the panel established pursuant to subsection b. of this section shall be unanimous.

L.1982, c.77, s.25; amended 1993, c.133, s.2; 1995, c.280, s.11; 2001, c.408, s.4; 2015, c.89, s.3; 2019, c.363, s.3.