“NERA” The No Early Release Act and its Impact on Crimes involving Weapons in New Jersey
The No Early Release Act, also known as NERA, is a mandatory sentencing provision found in the New Jersey sentencing code. The Act states that when imposing a sentence for certain first and second degree crimes, the court must set a fixed term of conferment wherein, the defendant must serve 85% of his or her sentence before they become eligible for parole. The Act further provides that upon release from incarceration, the defendant must then serve five-years of parole supervision if he or she was sentenced for a crime of the first-degree, or a three year term of parole supervision if the defendant was sentenced for a second-degree offense.
The specific crimes that trigger NERA include the following:
- Aggravated manslaughter
- Vehicular homicide;
- Aggravated assault;
- Disarming a law enforcement officer;
- Aggravated sexual assault;
- Sexual assault;
- Aggravated arson;
- Booby traps in manufacturing or distribution facilities;
- Strict liability for drug induced deaths;
- Producing or possessing chemical weapons, biological agents or nuclear or radiological devices;
- Racketeering, when it is a crime of the first degree;
- Firearms trafficking; or
- Causing or permitting a child to engage in a prohibited sexual act, knowing that the act may be reproduced or reconstructed in any manner, or be part of an exhibition or performance.
What does it mean if Convicted of a NERA Crime in NJ?
In simple terms, if you are found guilty of a NERA offense, the Judge will sentence you to a set prison term and you must serve at least 85% before you can be released. For example, let’s say you were convicted of second-degree aggravated assault and the Judge sentenced you to five years in prison. Under the No Early Release Act, you cannot be released from prison until you spend at least four years and three months in prison. Then, upon being released, the individual must serve three-years on parole.
The Act was passed to prohibit any sentencing Judge from issuing a light prison term and at the same time, to ensure that the Parole Board does not release a defendant too early. For most cases, the Court has some discretion when sentencing an individual. The Judge is allowed to consider the person’s background in juxtaposition to the nature of the underlying offense and from there, impose an appropriate sentence. Also, and most importantly, for the majority of prison sentences, the convicted defendant is eligible for parole after he or she serves a third of the imposed prison term. Meaning, if a person is sentenced to five-years in prison, under a more traditional sentence, he or she may be released in close to two years. This is substantially less than if they are sentenced under NERA. Thus, it is very important to avoid being sentenced under this very severe sentencing mandate.
How does the No Early Release Act Apply to Guns and Weapons Offenses?
As outlined above, the NERA sentencing statute is more aimed at individuals who commit what are considered very cruel and violent offenses such as homicide, sexual assault, kidnapping and the like. The Act itself is not focused on firearm offenses. However, please keep in mind, it is very common for people to utilize weapons and firearms when committing serious crimes. For example, when committing the heinous act of homicide, it is not usual for such an act to be carried out with a gun. Also, offenses such as robbery, kidnapping, carjacking tend to be perpetrated by individuals with weapons. Also, the aggravated assault statute may come into play if a person discharges a firearm and a person is severely injured. Hence, the No Early Release Act may not be targeted towards firearm crimes but, the Act is certainly elicited by gun-induced offenses.
Nonetheless, it is worth noting, the majority of the NERA offenses do not require a firearm to trigger its harsh sentencing mandate. In fact, with the exception of one offense, which will be discussed below, the listed charges do not legally require a firearm to be utilized or even present to initiate charges. For instance, a person will be found guilty of kidnapping if they unlawfully remove a person with the purpose of holding that individual for a substantial period of time, or for ransom or reward. Accordingly, the use of a gun is not an element of the offense. Also, for robbery, a person can be found guilty if he or she commits a theft and inflicts bodily injury or uses force upon another. Again, the use of a firearm is not legally required in order to convict someone of robbery. The same can be said for the other charges. The Act is not a gun-control form of legislation, however, it is important to be aware of it and understand its consequences because it can relate to many criminal offenses involving a firearm.
NERA Sentencing for Firearms Trafficking in NJ
With all that said, there is one particular statute enumerated under NERA that does require a firearm to be involved. The firearm trafficking statute, which is found under N.J.S.A. 2C:39-9i. Unlike the other NERA offenses, this law requires the presence of a gun. The statute provides that is it unlawful for an individual to knowingly transport, ship, or otherwise bring into the State of New Jersey, any firearm for the purpose of unlawfully selling, transferring, giving, assigning, or otherwise disposing of that firearm. This law is especially important for out-of-state residents who visit or travel through New Jersey. Especially residents of Pennsylvania who entered the State, unaware of the drastic shift in the law. The gun laws in the State of Pennsylvania are significantly more liberal and forgiving and tend to favor gun ownership and the ability to freely carry weapons. New Jersey is the complete opposite. The Garden State, generally speaking, forbids carrying guns in public and limits who can sell and transfer firearms. Consequently, if an out-of-state citizen enters the State, let’s say to visit family members for a holiday, and while in New Jersey, transfers a gun, he or she could be facing gun trafficking charges and worse of all, potentially be forced to serve several years in prison.
What to do if You Have been Charged with a NERA Offense in New Jersey
If you are charged with a NERA offense, the first thing you should do is contact an experienced attorney. The No Early Release Act contains no waivers or exceptions. As you may have read on our page dedicated to the subject, gun charges in New Jersey are attached to the Graves Act. The Graves Act is very similar to NERA in that it is a sentencing mandate that requires a mandatory prison term. However, the Graves Act has a specified waiver provision which allows the Court to sentence the defendant to probation or even enroll the individual into PTI, which stands for Pre-Trial Intervention. However, NERA does not contain any language that authorizes leniency. The New Jersey legislature has declared, if you are convicted of one of the offenses listed in the Act, you must serve a significant prison term. It doesn’t matter if you have never been arrested before. It doesn’t matter if you are married, have several young children, and are the sole financial provider for your family. If you commit one of those serious offenses in the State of New Jersey, the nature of the act outweighs everything in your background.
Nonetheless, through the assistance of an attorney, there are some tactics that can be used to either amend the charges or downgrade the severity of the offense. If the charge is amended to a non-NERA offense, then the Act no longer applies. Similarly, if the severity of the charge is reduced to a third or fourth degree offense, then the Act becomes inoperable. As such, the defendant will not have to serve the mandatory prison term. Also, this opens the door to probation and even PTI, which can ultimately lead to a dismissal.
Criminal Attorneys Fighting NERA Charges in NJ
If you or someone you love is facing criminal charges that trigger the No Early Release Act, get in touch with an experienced criminal defense lawyer right away to assess your options and get ahead on defending your case. With thousands of criminal and weapons cases under our belts, you can put your trust in the capable hands of the attorneys at The Tormey Law Firm. We know how to defend against overzealous prosecutors and state laws that jeopardize your freedom and your future. Contact (201)-614-2474 for a free consultation today or send us a message to get personalized guidance and counsel for your case. A member of our defense team is available for your immediate assistance.