New Jersey Passed a Law to Release More Inmates from Prison During the COVID Pandemic

Learn How It Works, and Why it Probably Won’t Help

Article Written by Robert M. Perry, Esq

On October 19, 2020, Governor Murphy signed into law S2519 which “requires public health emergency credits to be awarded to certain inmates and parolees during a public health emergency.”  Sponsors of the legislation proclaimed, “it will go a long way in protecting the state’s prison population.”  In theory, this legislation was long overdue and would allow a significant portion of the prison population to be released about eight (8) months earlier than they would have otherwise.  New Jersey has the highest rate of inmate deaths due to COVID-19 in the United States and there is no indication that the release will increase crime.   

In practice, this law will have minimal impact on the prison population and likely prioritize the release of more serious offenders.   

To understand why this legislation likely won’t accomplish its lofty goals, it is important to generally understand the way parole works.  Very few inmates serve their entire prison sentences in New Jersey.  Most are granted parole – early release from prison.  When they are released, they are closely monitored by the Department of Corrections.  If they violate any terms of their release, they can be returned to prison following a hearing.  In that hearing the inmate does not enjoy the same due process rights as a criminal defendant.   

For some crimes, the law requires an inmate to serve a specific term of incarceration before they are eligible for parole.  For example, a person convicted of a gun crime in New Jersey usually falls within a sentencing enhancement known as the “Graves Act.”  This law requires an inmate to serve three and a half years of a sentence before they can be considered for parole.  Evan an inmate who received, for example, a seven-year sentence as a result of a gun crime conviction might be released after three and a half years and monitored for the remainder of their sentence.  For most inmates, their eligibility for parole is dictated by a complicated Prison Administrative Code that takes into account any job they perform while incarcerated, whether they are incarcerated in a minimum custody facility and other factors.   

While calculating out an inmate’s eligibility for parole is simple math, knowing when they will be released is pure mystery.  One study found that about sixty percent (60%) of inmates receive parole, but Parole Boards are granted nearly unfettered discretion as to who is released.  If an inmate is improperly denied parole, they must appeal but that appeal will likely drag on past their next parole hearing date.   

The recent law was enacted to grant inmates who are serving a sentence during a public health emergency additional “jail credits” and accelerate their release from Prison.  In sum:  an inmate who is within one year of their “scheduled release” receives eight (8) months of additional jail credit thus pushing them closer to their release from incarceration.   

That term, “scheduled release”, is the problem.  

An inmate is only “scheduled” to be released under two (2) circumstances.  First, the Parole Board has granted parole and scheduled a date upon which the inmate is released.  Second, an inmate has “maxed out”, meaning there is a date upon which the inmate must be released because they have served the maximum allowable term of incarceration pursuant to the sentence.  By limiting the additional jail credits to inmates who are “scheduled” to be released, rather than eligible for parole, the law does very little to reduce the prison population. 

For example, an inmate who was convicted of a non-violent crime and received a five (5) year sentence, without any specified period of parole ineligibility, would ordinarily be eligible for parole after approximately one (1) year.  This law does virtually nothing to help that inmate.  While the inmate is eligible for parole after one year the inmate is not “scheduled” to be released after one year.  The inmate is only “scheduled” to be released when the parole board grants parole, which typically occurs about two months before the inmate is actually released.  The only way this law meaningfully impacts the inmate’s release is if the inmate was repeatedly denied parole and had approached the maximum term of their sentence.  On the other hand, an inmate who committed a violent crime and was sentenced to a term requiring them to serve eighty-five percent (85%) of their sentence would also be “scheduled” to be released at that point and would receive the benefit of the law.   

As a result, this law actually prioritizes the release of violent offenders (or those that the parole board has already deemed unsuitable for release) over non-violent offenders and accelerates the release of a much smaller population of inmates than it would seem.  Had the legislation awarded jail credits to inmates who were within one (1) year of their parole eligibility it would have meaningfully reduced the prison population during a pandemic where over 3,000 inmates have contracted the virus and at least 52 inmates have died.   

Robert M. Perry is a partner at Rosenberg Perry & Associates, LLC.  He is a former Assistant County Prosecutor and is certified by the Supreme Court of New Jersey as a Criminal Trial attorney.  If you or someone you know has a question about jail credits, criminal sentencing or appeals, feel free to contact us.  Mr. Perry and the attorneys at our firm can help.