On certification to the Superior Court, Law Division, ISP Panel.
Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
In this matter, the State, the Prosecutors' Association, and the Attorney General contend that the Intensive Supervision Program (ISP) is invalid as applied to first- and second-degree offenders. They assert that the Program conflicts with the legislative command that all such offenders must be imprisoned. We conclude that they are correct. We regret the Conclusion because the Program has been an outstanding success in achieving its important goals: relieving prison overcrowding, and punishing and rehabilitating carefully selected offenders, and doing both with the utmost concern and care for the safety of the public. We hold that absent further confirming legislative approval, first- and second-degree offenders may not be admitted into the Program. Given the consistent long-term prior indications of legislative and executive support, however, we stay the effective date of our judgment until January 1, 1993, in order to give the Legislature the opportunity to enact the appropriate corrective legislation.
Colleen Cannon was a drug addict. To support her habit she stole over $100,000 by forging her employers' checks. She pleaded guilty to various crimes, the only one at issue in this case being theft by deception, N.J.S.A. 2C:20-4, a second-degree crime since more than $75,000 was involved. N.J.S.A. 2C:20-2b(1)(a). Pursuant to a plea bargain she received the minimum sentence provided by statute -- five years imprisonment. Her sentence commenced on May 5, 1989, with a projected parole eligibility date of approximately May of 1991. Having no prior record, she most likely would have been released at that time, after having served about a year in prison. Instead, after having served seven months in prison, she was admitted into ISP and released from prison on December 8, 1989.*fn1
ISP, described in detail later, is a sentencing alternative that removes carefully selected defendants from prison and releases them into the community under standards of supervision so strict as to substantially eliminate any risk to public safety. The goals are reduction in prison overcrowding, appropriate punishment of the offender, and rehabilitation. Cannon remained under the strictures and supervision of ISP until October 4, 1991, when she was discharged from the Program and released by the Resentencing Panel, more than a year later than her probable parole release date.
The two-Judge panel that admitted her into ISP, while expressing some doubt about her ability to complete the Program successfully, concluded that on balance her admission would serve its goals. Implicit in its reasoning was the Conclusion that without ISP, defendant might revert to her drug habit with its adverse impact on her and on society, once released from prison.
The State appealed from Cannon's admission into the Program. The Appellate Division ultimately denied the State's application to stay that admission pending appeal; since Cannon has now successfully completed the Program and has served, in the aggregate, more real time than called for under her original sentence (counting both time served in prison and time served with ISP, all parties agreeing she is entitled to full credit for that time against her prison sentence),*fn2 the outcome of our decision will have no practical impact on defendant. The issues are of great importance, however, and should be disposed of.
The basic issue is whether first- and second-degree offenders may be admitted into ISP. The issue tests this Court's power over sentencing alternatives. The State's position is that N.J.S.A. 2C:44-1d, requiring that all first- and second-degree offenders be sentenced to prison (except when "serious inJustice" would result), is inconsistent with ISP and renders the Program invalid as applied to such offenders.*fn3 The State argues that this Court has no power through rule-making or otherwise to convert a mandatory prison term into probation, no matter how strict the supervision.
Sustaining the State's position would reduce, by 20%, participation in ISP. Indeed, the impact in the future may be even greater since the proportion of first- and second-degree offenders admitted into the Program has been growing. As of April 24, 1992, the Program has been successfully completed by 1,234 prisoners, about 20% of whom were first- and second-degree offenders. At that time there were an additional 625 released prisoners under the Program's supervision. It has been noted that the Program, with a constant population of over 400 defendants who would otherwise be in prison, has saved the State the expense of building at least one more prison; furthermore, its rehabilitative success is indicated in the recidivism rate of its graduates. Administrative Office of the Courts, ISP Fact Sheet, (May 15, 1992) (Fact Sheet). ISP graduates have a recidivism rate following graduation of 4.3% indictable convictions and 4.7% disorderly persons convictions, over an average period of more than four-and-one-half years for each. Administrative Office of the Courts, New Jersey Intensive Supervision Program, Winter 1992 Progress Report 2-5 (1992) (Winter 1992 Progress Report). The general prison population, on the other hand, has a 32.0% comparable recidivism rate for a period of three years following release. Administrative Office of the Courts, 1980 Report at 1. The recidivism rate for first- and second-degree ISP graduates is even lower: 1.1%. See Fact Sheet, supra.
The primary question before us is whether the mandate of N.J.S.A. 2C:44-1d, requiring imprisonment of all first- and second-degree offenders, prevails over the Court-approved ISP standards allowing their release into the community. Related to this question is the propriety of Rule 3:21-10(e), which prohibits appeal from the judicial decision admitting defendants into the Program. Finally, we must determine whether ISP is the functional and legal equivalent of the "imprisonment" mandated by the statute. In order to address these questions, we shall first describe the Program.
ISP is a Court-initiated sentencing alternative designed by the Administrative Office of the Courts (AOC) in the early 1980s. It was developed in consultation with the Executive branch and implemented after Executive approval. See Office of the Governor, Prison Overcrowding: A Plan of Action 9-10 (1982) (Prison Overcrowding). Since its inception in 1983, it has been funded, every year thereafter, by a special-purpose appropriation in the budget submitted by the Governor and approved by the Legislature, entitled simply "Intensive supervision program." See, e.g., L. 1985, c. 209 at 782. In the budget for fiscal year 1993 that appropriation would be dramatically increased from $3,584,000 for fiscal year 1992 to $8,414,000 ($5,847,000 for basic ISP, and $2,567,000 for a new juvenile ISP) for fiscal year 1993. 1993 New Jersey Budget, S1000 [1R] § 98 (1992).
ISP is a Program open only to those sentenced defendants who have served prison time. Defendants accepted into the Program have served an average of about six months. The premise of the Program is that a very limited number of carefully selected defendants, having experienced prison, can be safely released into the community prior to completing their imprisonment term if they are subjected to the strictest supervision. Generally, only non-violent State-sentenced prisoners are accepted. A defendant is not eligible if sentenced to a statutorily mandated period of parole ineligibility. See State v. Mendel, 212 N.J. Super. 110, 113-14 (App. Div. 1986).
ISP is administered by the AOC through specially selected probation officers and other professional staff. The ISP application and admission process is rigorous, and an applicant may be rejected at any point. The initial step makes ineligible any applicant who is currently incarcerated for homicide, robbery, a sex offense, or whose sentence includes a mandatory period of parole ineligibility. The second step screens out all applicants whose offense was of the first- or second-degree or included an act of violence, unless the Screening Board determines that, nonetheless, the offense does not preclude eligibility in the Program. The applicant is interviewed by an ISP officer, who also helps form a case plan with specific goals and means of reaching those goals. The applicant must have community sponsors who are willing and able to assist him or her. The case plan is signed by both the applicant and the community sponsors. The third step consists of the acquisition by the ISP staff of any and all necessary documents and information. In the fourth step, all of the applicant's information, including recommendations from the sentencing Judge, other officials, and any victims, is reviewed by an ISP Screening Board. A Board is made up of three members, one a citizen appointed by the Chief Justice, one from the Department of Corrections, and one an ISP representative. A Board must determine the suitability of the applicant based on the offense, his or her background, and the efficacy of the plan. A Board may reject the applicant, with no right of appeal, or may initiate the fifth step, which is a personal interview in order to better determine whether the applicant is worthy. If deemed worthy, the applicant moves to the sixth step which is a review by the Resentencing Panel, which consists of Judges appointed by the Chief Justice. The Panel reviews the information and holds an eligibility hearing open to all interested persons.
If rejected, the applicant remains incarcerated. If approved, the applicant begins a ninety-day probationary period, after which another hearing may be held. If successful, the applicant enters a second ninety-day probationary period, followed, if necessary, by a further hearing before the Panel. After successful completion of the second probationary period, the applicant enters the Program. Once accepted, the participant is continually monitored and must periodically appear before the Panel. See Winter 1992 Progress Report, supra, at 2-5; Administrative Office of the Courts, Intensive Supervision Program 10-15 (1983) (1983 Report).
The difficulty in obtaining admission is indicated by the fact that of 16,260 applications, only 2,899 have been admitted. Intensive Supervision Program, 1st and 2nd Degree Instant Offense Report (May 1992). In other words, since its inception in 1983 about 83% of all applicants have been rejected. The stringency of the conditions is further indicated by the fact that of the participants admitted to the Program, fewer than half have been able to successfully complete it. All of those unable to graduate from the Program are returned to custody.
In the steps leading to approval or rejection, the panel of Judges reviews the material collected by staff during the approval process and conducts a plenary hearing at which all aspects of the proposed entry into the Program are examined. The Judges hear from the defendant and his or her family, from those people in the community who constitute the support group, from the victim, from the prosecutor, from potential employers, from the ISP staff, from those familiar with the defendant's background and past history, and from others. The standard applied is a blend of factors, the foremost being the safety of the community, and thereafter the amenability of the defendant to rehabilitation, and the likelihood of achieving such rehabilitation in view of the efforts of the Program, the participant, and the community support network. Weighed in the balance is the motivation of the defendant, the strength of his or her desire for rehabilitation, the strength of the community support group, and all other conditions bearing on the likelihood of success of the applicant. As noted earlier, any approval is conditional, and the applicant is subject to two ninety-day probationary periods prior to formal entry into the Program. Appeals are not permitted.*fn4 R. 3:21-10(e).
while the conditions and restrictions of ISP are tailored to fit the needs of each individual case, they are invariably strict and onerous. All participants must be employed full time, submit to urine monitoring for alcohol and illegal substance use; maintain a nightly curfew which is monitored by ISP officers; perform community service; make regular payments toward fines, restitution, penalties, support of dependents, and the cost of being supervised in the Program; actively participate in treatment programs, and keep a daily diary and ...