Difference Between Presumption of Incarceration and Non-Incarceration

New Jersey Felony Crimes Either Presumptively Require Prison Time or Not

Presumption of Incarceration Attorneys Bergen County NJTo lower the state prison population and unclog the court system, New Jersey legislators proposed a two-tier system categorizing offenses as having a presumption of incarceration, meaning that a prison sentence was required or a presumption of non-incarceration for less serious crimes. To presume something is to suppose that something is the case based on probability, but isn’t always a given fact. This system provides opportunities for lesser sentences for less serious crimes.

First Offenses with a Presumption of Non-Incarceration in NJ

According to  New Jersey section N.J.S.A. 2C:44-1(e), first-time offenders of third or fourth degree crimes, petty disorderly persons offenses, or disorderly persons offenses are unlikely to receive jail time if convicted unless they are deemed a danger to the public or there are aggravating circumstances making their crime more serious. Petty disorderly persons offenses and disorderly persons offenses can be punishable by a jail term of 90 days or 6 months, respectively, in a county jail rather than a state prison, which is why they are still considered non-incarceration offenses. Most third and fourth-degree crimes have a presumption of non-incarceration as long as they are committed by a first-time offender who does not pose a danger to the community. These crimes carry possible prison time of up to 5 years or 18 months, respectively.

Presumption of Incarceration for Serious Offenses

According to N.J.S.A. 2C:44- 1(d), those convicted of 1st or 2nd-degree crimes are subject to a presumption of incarceration. Some third degree crimes, such as repeated domestic violence, domestic violence committed in the presence of a minor under the age of 16, involvement in organized crime, or gang activity, carry the presumption of incarceration. Third-degree crimes such as theft of a motor vehicle, eluding, strict liability vehicular homicide, leaving the scene of an accident that resulted in bodily harm, leaving the scene of a boating accident, possession of 100 or more items depicting the sexual abuse of children, influencing a jury, official misconduct,  distributing drugs to a minor or someone who is pregnant, and interfering with the custody of a child, also have a presumption of incarceration.

Is a Presumption of Incarceration the Same as a Presumption of Detention in NJ?

Notably, presumptions of incarceration versus non-incarceration in the realm of criminal sentencing are not the same concepts as presumptions of detention versus release in the realm of bail. Passed in January 2017, the state of NJ replaced a monetary bail system with one that relies on a risk-based system unrelated to the defendant’s ability to post bail. A Public Safety Assessment is completed to determine if they are dangerous to the community and should not be released. The PSA estimates a defendant’s probability of appearing for all court matters, avoiding further criminal activity, and avoiding violent crimes while on pretrial release.

If the prosecutor on a case moves for detention, this means they are requesting that the defendant be kept in jail pending the conclusion of their case. Some crimes come with a presumption of detention due to their seriousness and the perceived threat that the defendant poses to the safety of the community. The judge at a detention hearing has three main options: release the defendant without conditions, keep them detained, or release them with conditions. Pretrial release conditions can include random drug testing, no contact orders, reporting to a probation officer, no alcohol, house arrest, and curfews depending on the case.

Circumstances that Work in Your Favor for Sentencing

Several criteria are used to determine if a defendant should receive a non-incarceration sentence. These are called mitigating circumstances. They aren’t excuses that justify the criminal act but provide context as to why the defendant’s actions caused less damage than they could have. Some mitigating circumstances are the defendant will or has compensated the victim; there were grounds to justify the defendant’s actions at least partially; the defendant did not think their actions would cause harm; they were provoked; the defendant didn’t hurt anyone nor threaten to do so; imprisonment would cause severe hardship to themselves or their dependents, the defendant cooperated with the authorities when requested, it is doubtful the defendant will re-offend, and the defendant is likely to comply with the requirements of their probation.

Legal Avenues to Stay out of Jail in New Jersey

Pre-Trial Intervention, or PTI, is one alternative to a jail sentence available only to first-time offenders. Before the case is tried, the defendant applies to participate in the program. If accepted, the defendant will be supervised by probation officers. They enroll the defendant in various classes, coordinate community service, find full-time employment, and any other requirements the judge may have put in place, such as drug testing. You could be prosecuted for the original charges if you fail to complete the program, which can last from 6 months to 3 years.

Presumption of Incarceration Difference from Non-Incarceration in Hackensack, New JerseyProbation is assigned after you have been found guilty of a crime. It is an opportunity to avoid prison time and receive support from probation officers who can help you find a job, get counseling, and track your progress for the court. Probationers are typically required to pay their court fines and restitution, perform community service, take drug and alcohol screening tests, receive counseling, and report regularly to their probation officer. Failure to complete all of the probation requirements could land you in jail.

A reduced charge from a crime that carries a presumption of incarceration to one that does not mean you may not do any jail time. A lower charge is always better in terms of whether or not you will have to do time, and it may afford you options that are unavailable for more serious charges.

Trust our Hackensack Criminal Defense Attorneys to Assist You with Avoiding Imprisonment

When you are charged with a crime, it is worrisome and maybe even frightening. You are unsure of what will happen to your life, career, and family. Our job is to provide you with confidence that your case is handled properly and professionally. At our Bergen County criminal defense firm, our attorneys know every case is unique, and we will examine every aspect of your case with a microscope. We will work hard to provide the support you need while fighting tooth and nail to keep you out of prison. Our focus is on your defense. If you need assistance with any criminal law matter in Paramus, Teaneck, Garfield, Palisades Park, Hackensack, Montvale, Lodi, Mahwah, Fort Lee, East Rutherford, or another community in the Bergen County and Northern New Jersey area, don’t hesitate to contact us. Call (201)-330-4979 today or fill out a contact form here for a free consultation.


If you’ve been charged with a criminal offense, disorderly persons offense, or traffic / DWI violation, you have the right to an attorney who will defend you against your charges and fight for your best interests. To learn more about how your attorney can fight to have your charges dismissed or reduced, click a link below to see our video library of legal defenses and strategies.