If you have issues viewing or accessing this file, please contact us at NCJRS.gov. HABITUAL OFFENDER PROSECUTIONS IN NEW JERSEY Albert G. Fredericks Deputy Attorn.ey General Introduction New Jersey's Habitu!t1 Offender Actl is capable of being utilized in a large number of criminal prosecutions" thus playing an important role in determining the length of a convicted defendant's sentence. The statute, however, is rarely invoked ~y the courts and prosecutors of this State. As a result of this lack of utilization) and because of frequent amendments since the enactment of New Jersey's first recidivist statute, the applicability of this law and the procedures to be followed when imposing it are not well settled. This article will describe the habitual offender statute, its scope and applicability and the roles of the courts and prosecutors in its utilization. Cases upholding and interpreting the act will be discussed. Finally, several pI'oposals for change and their potential effects will be examined. The Habitual Offender Act2 provides for enhanced punishment for those convicted of a misdemeanor or high misdemeanor, if they have been convicted of n high misdemeanor on one or more prior occasions. An individual with a single prior high misdemeanor conviction is subject, for a subsequent conviction, to a sentence twice the maximum which could have been imposed had the latter offense been his first) A third offender is exposed to a sentence three times as seveI'e as that provided for the latest conviction4 and a fourth offender is thereby \I declared to be an habitual criminal II and a sentence 1\ for any term of years or for life \I may be imposed.5 For the purposes of this act, convictions of several prior high misdemeanors charged in 1\ one N.J.S.A. 2A:S5-8 to 13 (1953). 2 [d. 3 N.J.S,A. 2A:S5-S sets forth: Any person convicted of a high misdemeanor under the laws of this State, or of a crime under the laws of the United States or any other State or country, which crime would be a high misdemeanor under the laws of this State, and who thereafter is convicted of a misdemeanor or a JIigll misdemeanor under the laws of this State, may be sentenced to imprisonment in the State prison for not more than double the maximum period for which he might have been sentenced for a first offense. Conviction of two or more of such crimes or high misdemeanors cluuged in one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction. 4 N.J.S.A. 2A:S5-9 provides: Any person twice convicted of high misdemeanors under the laws of this State, or of crimes under the laws of tile United States or any other State or country, which crimes would be high misdemeanors under the laws of this State, and who thereafter is convicted of a misdemeanor or a high misdemeanor under the laws of this State, may be sentenced to imprisonment in the State Prison for not more than three times the maximum period for which he might have been sentenced for a first offense. Conviction of two or more of such crimes or high misdemeanors charged in one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction. 5 N.J.S.A. 2A:S5-12 states: Any person convicted on three separate occasions of high misdemeanors in this State, or of crimes under the laws of the United States or any other State or country, which crimes would be high misdemeanors under the laws of this State, or whose convictions for sllch offenses in this State or under tilC laws of the United States or any ·~ther Sta~'.' or country shall total three or morc, and who thereafter is convicted of a misdemeanor or a high misdemeanor under the laws of this State, is hereby declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, may impose upon the person so convicted a sentence in the State Prison for any term of years or for life, Convictiorl of two or more of such crimes or high misdemeanors .:harged in one indictment or accusation, or ill two or mote indictments or accusations consolidated for trial, shall be deemed to be only one conviction. 83 indictment or accusation, or in two or more indictments or accusations consolidated for trial" are considered as only one conviction.6 Constitutionality of the Act Habitual offender laws in this state, as well as in other jurisdictions, have been challenged on numerous grounds, generally without success. In 1901, the United States Supreme Court upheld the constitutionality of a Massachusetts recidivist statute in McDonald v. Massachusetts. 7 The Court held that the statute in question imposed an increased punishment upon the latest crime of a prior offender rather than any additional punislm1ent for the former crimes. It therefore was not an ex post facto law and did not "put the accused twice in jeopardy for the same offense. 1I8 The statute was also held not to deny a defendant the equal protection of the laws and not to impose a cruel or unusual punishment.9 The Supreme Court has reaffirmed these conclusions in subsequent cases.lO The New Jersey courts have also had occasion to consider the validity of their own habitual offender laws. In In re Caruso,l1 the court rejected a claim that a forerunner to the present habitual offender statute violated a defendant's right to due process of law. This State's habitual offender laws have also been challenged on several occasions as ex post facto laws where one or more of the defendant's prior convictions occurred before the effective date of the applicable statute. For example, in In re Zee 12 the defendant was sentenced pursuant to the 1940 habitual offender statute,13 which authorized enhanced punishment for convictions subsequent to any high misdemeanor. The earlier version of the Act14 applied only to prior offenses for which a prison sentence had been served. All of the defendant's prior convictions an tedated the 1940 act and for one of them he had been granted probation. The defendant argued that the 1940 act was ex post facto in that it applied to convictions which would not have fallen within the purview of the law in effect when those convictions were obtained.15 The court dismissed this argument, by emphasizing the purpose and effect of such laws: Habitual offender statutes, such as the one in effect here, do not undertake to punish again for the prior offenses. They enhance the punishment for the subsequent offense. A statute is not constitut.ionally offensive which enhances the punishment for the offense which culminates the repetitive criminal conduct, even though the prior offenses occurred before the statute was enacted or became effective. Such legislation is held not to increase the penalty for the prior crimes, but only to impose punishment for the latter, the gravity of which is increased by the persistence of the accused in criminality. * * * 6 N.J.S.A. 2A:85·8;N.J.S.A. 2A:85-9;N.J.S.A. 2A:85-12. 7 180 u.s. 311 (1901). 8 fd. at 313. 9 fd. It should be noted, however, that in a given situation the application of:. recidivist statute, constitu tional on its face, may serve to impose a punishment which is grossly disproportionate to the severity of the crime, thus constituting cruel and unusual puniShment. See e.g., Rummel v. Estelle, 568 F.2d 493, 1195 (5 Cir. 1978); Hart v. Coiner, 483 F.2d 136 (4 Cir. 1973), cert. den. 415 U.S. 983 (1974). 10 See Oyler V. Boles, 368 U.S. 448 (1962); Gryger V. Burke, 334 U.S. 728(1948); Graham V. West Virginia, 224 U.S. 616 (1912). 11 131 N.J.L. 505 (Sup. Ct. 1944), cert. den. 135 N.J.L. 522 (Sup. Ct. 1947). 12 13 N.J. Super. 312 (Law Div. 1951), aff'd 16 N.J. Super. 171 CAppo Div. 1951), cert. den. 343 U.S. 931 (1952). 13 1940 N.J. Laws, c.219 §§1 - 3. 14 1927 N.J. Laws, c 219 §§1 and 2; 1927 N.J. Laws, c.263, §1. 15 13 N.J. Super. at 317-318. 84 [Tl he punishment for the culminant offense is greatel"not by relation back to the previous offenses, but only because such criminal has brought himself within a class established by law as deserving and requiring a more severe punishmen t and restraint than the class of criminals less hardened to s;rime. The punishment is for the new crime only, but is the heavier if the offender is an habitual criminal. The Statute thus imposes a punishment on none but future crimes and is not ex post jacto. 16 The New Jersey Supreme Court subsequently gave its express approval to this interpretation,17 and the validity of this State's habitual offender laws is now well established. I 8 More recent challenges to the habitual offender laws have been based upon their infrequent utilization. Those defendants against whom such statutes are invoked have claimed that their right to equal protection under the law has thereby been violated. The United States Supreme Court entertained such a claim in Oyler 1'. Boles,19 and held that to establish such a violation the defendant must show that the invocation of the enhanced punishment procedure II was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary c1assification."20 The present New Jersey statute simply authorizes enhanced punishment for prior offenders21 and vests the sentencing court with discretion to invoke the statute when it sees fit.22 The courts of this State have thereby held that rare or infrequent utilization of the statute, in and of itself, will not support an equal protection claim, and that invidious discrimination must be established.