By now most attorneys in New Jersey are aware of the consent order of the New Jersey Supreme Court, entered on the evening of March 22, 2020, which released low-risk offenders from the county jails because of concerns caused by the coronavirus. Under the order, entered with consent of the attorney general, county prosecutors, public defender and ACLU, following mediation with Judge Phillip S. Carchman, retired Appellate Division judge and former acting administrative director of the courts, defendants serving a sentence in county jail as a condition of probation (which could be up to 364 days for a criminal offense) or as a result of the municipal court conviction (which could be up to six months for a disorderly persons offense or 30 days for a petty disorderly persons offense) were to be released by March 24. The custodial aspect of probation would be served at a later time or converted to “time served,” and the terms of those serving terms as a result of municipal convictions would be served later or deemed satisfied. Inmates serving other custodial sentences in county jails were to be released after an opportunity of the Prosecutor to be heard. Their sentences were to be deemed served or served after the health crisis is over.
Much of the order is not revolutionary. Case law permits a sentencing judge to make the custodial aspect of probation to be served at the end of the probationary term and vacated in advance thereof if the defendant makes progress and shows improvement and good behavior during the course of his or her probation. Moreover, under Rule 3:21-10(b)(3) changing or reducing a custodial sentence (except, by case law, to the extent required by a statutory mandatory sentence) can be changed or reduced at any time on a joint application of the prosecutor and defendant. Nevertheless, the achievement by representatives of all components of the criminal justice community and the Supreme Court must be commended for implementing a protocol for the release of prisoners without the time and resources necessitated by an application and hearing. Entry of an order affecting all covered inmates and providing the procedures for release is remarkable and praiseworthy. All citizens of our state should recognize and acknowledge the work of everyone involved in drafting, executing and implementing the consent order and appreciate the ability of all components of the criminal justice community for being able to work together so expeditiously in these unfortunate circumstances. Hopefully, it is a sign of an ability to work jointly when necessary for the common good.
