Setting the Timer: How Judges Determine Sentences

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

This blog will consider State v. M.S. decided on June 17, 2014 by the Superior Court of New Jersey, Appellate Division. This is a case in which the State of New Jersey appealed an order establishing a Krol term of eleven years for a defendant who was found not guilty by reason of insanity (NGI). A Krol term references the case State v. Krol, 68 N.J. 236 (1975) which established that a defendant who is found NGI may be committed for the maximum ordinary aggregate terms that the defendant would have received if convicted of the offenses they were charged with. In other words someone who is found to be insane will serve out what the maximum sentence would have been in a mental health facility rather than a prison, but they will not just walk away free.

Because so few defendants will ever be found NGI this case is more relevant as an examination of how criminal sentencing works in New Jersey because in order to determine whether the period of Krol commitment should have been eleven years the appellate judge had to examine the maximum sentencing guidelines. Firstly different maximum sentences are assigned depending on the degree of the crime and different degrees are assigned to different types of crimes. For example first degree crimes can include murder, manslaughter and rape, whereas most drug offenses are second degree crimes, but possession of drugs may only be a third degree crime. A DUI may only be a fourth degree crime depending on the circumstances. However, the lines are not set in stone and other factors such as the mental state of the criminal at the time of its commission can affect what degree a crime becomes. The MAXIMUM term of imprisonment for each degree in New Jersey are as follows:

First Degree = 20 years

Second Degree = 10 years

Third Degree = 5 years

Fourth Degree = 18 months

            Sentencing would be simple if defendants were convicted of only one crime at a time but the reality is most defendants face convictions for multiple offenses at once. When there are multiple sentences to consider then the judge must decide whether to run sentences concurrently or consecutively. State v. Yarbough, 100 N.J. 627 (1985) set forth factors to be considered by judges. Firstly, it must be considered whether the multiple offenses occurred in the same place and around the same time and if so whether they were part of a single period of aberrant (bad) behavior. If they were part of a single period of bad behavior then a judge may consider making the sentences concurrent as to not over-punish a defendant for one bad decision. But, if it is found that the offenses are not part of a single period of bad behavior then the judge may consider consecutive offenses, especially if the crimes involve separate acts of violence or the objectives are predominantly independent of each other. The cumulative years of consecutive sentences should not exceed the sum of the longest terms that could be imposed for the two most serious offenses. So, if a defendant was convicted of a first degree, second degree and several third degree offenses, generally the judge should not sentence consecutive sentences to exceed thirty years (not considering extended terms). There is also something called the Merger Doctrine which can be complex, but put simply it merges a lesser offense that is necessary in order to commit the greater offense. For example, if assault led to murder, then the assault is merged into the murder offense.

In the present case the trial judge assigned an eleven year Krol term to an NGI defendant but this was not calculated based on maximum sentencing guidelines as it should have been. Because the judge did not provide any explanation for his calculation the case was remanded.