“A presumption of incarceration, also known as a presumption of imprisonment, applies to serious crimes in New Jersey that require a prison sentence imposed on those convicted.”

If you’ve been arrested for a crime which bears a “Presumption of Incarceration,” you are unfortunately facing some bad news. A presumption of incarceration simply means that if convicted, it is “presumed” that you will be incarcerated, or given a prison sentence.  A presumption of imprisonment usually pertains to first degree crimes, second degree crimes, and most highly violent crimes. Obviously, everyone is considered innocent until proven guilty, but it is a good idea to understand exactly what you’re facing when making decisions about your criminal case.

Most crimes in New Jersey bear some form of prison sentence. Even disorderly conduct charges can be punished with jail time. Although a prison sentence is available for almost all criminal offenses, it’s not necessarily presumed that a guilty party will actually go to jail if convicted. A charge type for which the party will probably not go to jail bears a “presumption of non-incarceration.” No matter what your charge or it’s severity, it is highly advisable to get in touch with a criminal defense lawyer who can explain the potential consequences and your options.

What does a Presumption of Incarceration Mean?

New Jersey law, specifically N.J.S.A. 2C:44-1(e), applies a presumption of incarceration to certain serious crimes and cases with aggravating circumstances. If you are convicted of a first degree felony offense, a second degree felony, or a third degree offense with aggravating facts, the court should impose a period of incarceration at sentencing under section 2c:44-1. This presumption applies unless the judge determines that incarceration would be a serious injustice which overcomes the need to deter similarly aggravated or serious criminal behavior. Specifically, convictions for the following types of crimes entail a presumption of incarceration:

  • 1st degree felony charges
  • 2nd degree felony charges
  • 3rd degree eluding police
  • Subsequent convictions for 3rd degree auto theft
  • 3rd degree organized crime offenses

You should also be aware that the New Jersey Early Release Act, N.J.S.A. 2C:43-7.2, applies to certain serious crimes like murder, aggravated manslaughter, kidnapping, sexual assault, carjacking, and robbery. This law states that a convicted offender will be ineligible for parole until they have served 85% of their sentence.

Criminal Defense Attorneys Fighting Charges with Presumption of Imprisonment in New Jersey

If you are facing charges for a crime carrying a prison sentence in New Jersey, it is critical to consult an experienced criminal defense attorney about how you may avoid the consequences of a conviction. Sentencing can be incredibly serious and complicated, but the best thing you can do is avoid a guilty finding in the first place. If getting your criminal charge dismissed in not an option, a skilled defense lawyer may also be able to have your charges downgraded or reduced from first or second degree to third or fourth degree, thus avoiding the jail time imposition if convicted. The lawyers at our firm are dedicated to providing the best criminal defense for clients throughout New Jersey. We are available to provide a free consultation about your criminal case anytime. Call (201) 556-1570 or contact us online for help today.


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With unmatched knowledge and experience in the practice of law, the seasoned attorneys at The Tormey Law Firm are committed to serving their clients and tenaciously confronting the allegations against them.

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Learn More About How to Fight Your Charges

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.

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