Some Positive News from . . . New Jersey?

I am happy to report that New Jersey’s Attorney General, John Hoffman, has issued a new directive in response to the unnerving practice of NJ prosecutors to fully prosecute individuals for relatively minor infractions and misunderstandings of New Jersey’s firearms laws.  In response to outrage over the case of Shaneen Allen – the Pennsylvania woman charged with possession of a firearm in Atlantic County, NJ last year – Attorney General Hoffman released a directive on September 24, 2014, directing prosecutors not to seek prison terms for individuals merely for unlawfully possessing a firearm.

In the directive, Attorney General Hoffman states that “in the absence of case-specific aggravating circumstances, these defendants should not be sentenced to incarceration,” since “imprisonment is neither necessary nor appropriate to serve the interests of justice and protect public safety.”  Rather than seek harsh penalties – a minimum of 3 1/2 years under the Graves Act – prosecutors are instructed to do one of two things: (1) accept an offer of pretrial intervention (PTI) or (2) “tender an initial plea offer that authorizes the court upon conviction to impose a non-custodial probationary sentence.”

As the law stood between 2008 – when the Graves Act was modified – and the time of this Directive, a prosecutor had sole discretion as to admit a Graves Act defendant to PTI, and the bar was set high: a showing of compelling and extraordinary reasons was required to avoid normal prosecution.  Whether the Graves Act defendant received a shortened prison term or probation also was entirely within the realm of the prosecutor’s discretion.

The recent Directive directs prosecutors to offer PTI if there are no aggravating factors or, if the prosecutor finds PTI inappropriate, it all but mandates a prosecutor to make the plea offer for a non-prison sentence.

Importantly, there are three criteria for this Directive to apply: (1) the firearm was lawfully acquired in another jurisdiction; (2) possession of the firearm, under the same circumstances, would have been lawful in the individual’s jurisdiction; and (3) the individual was mistaken in believing that he or she was lawfully in possession in New Jersey.

In addition to the above factors, in order to gain PTI, the prosecutor must consider the following:

(1) the level of the firearm’s exposure to New Jersey residents would be minimal (i.e was it stored in a trunk or carried on the person in public, and whether the firearm was loaded);

(2) criminal history and/or any other crimes occurring at the moment (i.e. was the possession discovered because the individual was pulled over for a headlight violation, or was the person engaged in a drug deal or assault?);

(3) volunteering the information (as in the Allen case);

(4) checking the firearm in for safe-keeping (for example, checking the firearm into a hotel front desk demonstrates the lack of intent to do harm and the genuine mistake as to NJ firearms law);

(5) did the individual actually know that he or she was in violation of New Jersey law by carrying the firearm?

While certainly less than perfect, and still subject to a fair amount of prosecutorial discretion, this is a step in the right direction for New Jersey.

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