Factors in Evaluating Whether to Approve an Eligible Candidate
Guideline 3 for administration of a Pretrial Intervention Program outlines the considerations in determining whether or not an eligible candidate should be approved for PTI. The guideline reads as follows:
In evaluating a defendant’s application for participation in a pretrial intervention program, consideration shall be given to the criteria set forth in N.J.S.A. 2C:43-12. In addition thereto, the following factors shall also be considered together with other relevant circumstances:
(a) Pretrial intervention is designed to deal only with adult defendants who, in accordance with New Jersey law, are those persons above the age of 18. Also included are those juveniles between the ages of 16 and 18 who are treated as adults under R. 5:9-5.
(b) New Jersey’s PTI program is designed to deal with the problem of crime in New Jersey. Only those defendants are ineligible who reside such distances from New Jersey as to bar effective counseling or supervisory procedures.
(c) Only defendants charged with criminal or penal offenses in the criminal or municipal courts of the State of New Jersey may be enrolled pursuant to R. 3:28.
(d) Defendants should not be eligible for enrollment if the likely disposition would result in a suspended sentence without probation or a fine. Those charged with ordinance, health code and other similar violations are not eligible.
(e) While the pretrial intervention program is not limited to “first offenders”, defendants who have been previously convicted of a criminal offense should ordinarily be excluded. Such defendants who have at any prior time been convicted of a first or second degree crime or who irrespective of the degree of the crime have completed a term of probation, incarceration or parole within five years prior to the date of application for diversion shall ordinarily not be considered for enrollment in PTI except on joint application by the defendant and the prosecutor. Defendants charged with more than one offense may be considered for enrollment.
(f) Defendants who, at the time of arrest, are probationers or parolees should be considered for enrollment under R. 3:28 only after consultation with the Chief Probation Officer or District Parole Supervisor whose departments supervise the defendants, and only after they have agreed that revocation of probation or parole need not be recommended or after the appropriate authority has made the decision not to revoke probation or parole.
(g) Supervisory treatment may occur only once with respect to any defendant who has previously been enrolled in a program of pretrial intervention or conditionally discharged pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1. All applications for enrollment in a PTI program must proceed in accordance with the rules of the Supreme Court and these guidelines after reference to the Pretrial Intervention Registry established pursuant to R. 3:28(e) and N.J.S.A. 2C:43-21(a). No order to expunge or seal records of arrest after dismissal of a complaint, indictment or accusation under paragraph (c) or (d) shall bar the retention of material and information in the Pretrial Intervention Registry for the purposes of determining a defendant’s prior applications to, enrollments in, and the degree of completion of a Pretrial Intervention Program or for statistical reports required of the Administrative Director of the Courts, by law or the Supreme Court.
(h) The statutes set forth the criteria for eligibility and guidelines for exclusion. Defendants eligible for pretrial intervention or conditional discharge pursuant to N.J.S.A. 2C:36A-1 or § 27 of the Controlled Dangerous Substances Act may be placed under the supervision of a pretrial intervention program.
(i) Any defendant charged with crime is eligible for enrollment in a PTI program, but the nature of the offense is a factor to be considered in reviewing the application. If the crime was (1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant’s crime, the defendant’s application should generally be rejected. A defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs as defined in L.1970, c. 226 (N.J.S.A. 24:21-1 et seq.) by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor. However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant’s amenability to the rehabilitative process, showing compelling reasons justifying the applicant’s admission and establishing that a decision against enrollment would be arbitrary and unreasonable.
(j) The impact of diversion on the prosecution of co-defendants is a factor to be considered.
(k) A restitution or community service requirement, or both, may be included as part of an individual’s service plan when such a requirement promises to aid the rehabilitation of the offender. Any such requirement and its terms shall be judicially determined at the time of enrollment following recommendation by the criminal division manager and consent by the Prosecutor. Evidence of the restitution condition is not admissible against defendant in any subsequent civil or criminal proceeding. Admission to the program shall not be denied solely on the basis of anticipated inability to meet a restitution requirement. Where appropriate to further rehabilitation, symbolic or partial restitution may be included in the service.
Comment Guideline 3, in its introductory statement, requires that the statutory criteria of N.J.S.A. 2C:43-12(e) be considered in the evaluation of a defendant’s application for pretrial intervention. That statutory provision requires consideration of those criteria “among others.” Accordingly, the original criteria of this guideline have also been retained as explanatory of and supplemental to the statutory criteria. For convenience in reference, the statutory criteria are as follows:
- The nature of the offense;
- The facts of the case;
- The motivation and age of the defendant;
- The desire of the complainant or victim to forego prosecution;
- The existence of personal problems and character traits which may be related to the applicant’s crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
- The likelihood that the applicant’s crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
- The needs and interests of the victim and society;
- The extent to which the applicant’s crime constitutes part of a continuing pattern of anti-social behavior;
- The applicant’s record of criminal and penal violations and the extent to which he may present a substantial danger to others;
- Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
- Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant’s criminal act;
- The history of the use of physical violence toward others;
- Any involvement of the applicant with organized crime;
- Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;
- Whether or not the applicant’s involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
- Whether or not applicant’s participation in pretrial intervention will adversely affect the prosecution of co-defendants; and
- Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.