New Jersey § 2a:4a-44

§ 2a:4a-44.

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 use disorder , 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 to the 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.