New Jersey Section 2C:5-4 – Grading of criminal attempt and conspiracy, mitigation in cases of lesser danger.
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New Jersey Section 2C:5-4 – Grading of criminal attempt and conspiracy, mitigation in cases of lesser danger
New Jersey’s criminal code includes provisions for grading criminal attempts and conspiracies as lower level offenses than the completed crime in certain circumstances. Specifically, Section 2C:5-4 allows judges to mitigate sentences for inchoate crimes like attempt and conspiracy when the defendant’s actions posed a lesser danger to the public.
This section provides an important tool for judges to calibrate sentences based on the real harm caused by a defendant’s actions. Rather than imposing the same penalty for incomplete crimes as for completed crimes, judges can reduce sentences when appropriate given the facts of the case.
Lesser Danger Mitigation
Section 2C:5-4(b) states that “If the particular conduct charged to constitute a criminal attempt or conspiracy poses a threat of harm less serious than the crime itself, the criminal attempt or conspiracy is of a lower grade corresponding to the threatened harm.”
This lesser danger mitigation specifically applies to attempt and conspiracy charges. It allows judges to reduce the grade of these inchoate offenses by one or more degrees if the defendant’s conduct posed a less serious risk of harm than the completed crime would have.
For example, if a defendant is charged with attempted murder but took actions that posed little actual danger like sending threatening letters, a judge could mitigate the grade from a first to a second or third degree offense. This allows for more proportional punishment compared to if the full attempted murder charge was pursued.
Requirements for Mitigation
For a judge to apply the lesser danger mitigation under 2C:5-4(b), certain requirements must be met:
- The charge must be for an attempt or conspiracy, not the completed crime.
- The defendant’s specific actions must have posed a less serious risk of harm than the completed crime would have.
- The judge must determine that a sentence reduction is appropriate based on the facts of the case.
This mitigation does not apply automatically. The defense must request it and the judge must agree to reduce the grade of the offense based on an assessment of the evidence regarding danger posed.
Limits on Mitigation
While Section 2C:5-4(b) allows judges significant discretion to reduce sentences for attempts and conspiracies, there are some limits:
- The offense grade can only be reduced a maximum of one degree if it is a first or second degree crime.
- The grade cannot be reduced below the third degree for first and second degree crimes.
- There is no limit on mitigation for third and fourth degree crimes.
So while judges have flexibility in sentencing, there are still minimum penalties that apply in cases of very serious crimes like murder, even if the attempt posed little real danger.
Examples of Lesser Danger Mitigation
Some examples of how the lesser danger mitigation could apply include:
- Attempted murder by sending threatening letters could be mitigated from a 1st to 2nd degree offense.
- Conspiracy to commit robbery with an unloaded fake gun could be mitigated from a 2nd to 3rd degree offense.
- Attempted arson by taking ineffective preparatory steps could be mitigated from a 3rd to 4th degree offense.
In each case, the inchoate crime carried significantly less danger than completion of the offense, allowing for sentence mitigation under 2C:5-4(b).
Contrast With Substantial Step Test
The lesser danger mitigation differs from the substantial step test used to determine if conduct qualifies as an attempt crime in the first place. Under the Model Penal Code approach used in NJ, an attempt requires intent plus a substantial step toward completing the crime.
The substantial step test focuses on how close the person came to completing the crime. But the lesser danger mitigation looks at the specific danger posed by the actions taken toward the crime. Even if those actions met the definition of a substantial step, the mitigation analysis allows judges to then consider the harm risk separately.
So a defendant could be guilty of an attempt but still qualify for a mitigated sentence based on lesser danger.
Policy Basis for Mitigation
The mitigation provision reflects important criminal justice policy goals. Allowing reduced penalties for inchoate crimes that pose less danger helps:
- Punish defendants proportionally based on real harm threatened.
- Avoid excessive punishment for incomplete crimes.
- Incentivize stopping criminal plans before completion.
- Focus resources on serious and violent crimes.
Rather than taking an “all or nothing” approach, the mitigation provision allows a nuanced, evidence-based response to attempt and conspiracy charges.
Criticisms and Counterarguments
There are some criticisms and potential counterarguments to the lesser danger mitigation approach:
- It reduces deterrence against serious crimes by lowering penalties.
- Judges may apply it inconsistently, leading to unfair disparities.
- It could incentivize “fake” attempts designed to trigger mitigation.
- Fact-finding regarding danger may be difficult and subjective.
However, most experts argue the flexibility and proportionality benefits outweigh these concerns when the mitigation is applied carefully to appropriate cases. Guidance for judges on proper use of the mitigation provision can promote consistent application.
Conclusion
New Jersey’s Section 2C:5-4 allows judges to reduce sentences for attempt and conspiracy convictions that posed lesser dangers than the completed crimes. This important provision promotes proportional punishments based on real harm threatened. While not without critics, lesser danger mitigation remains an important tool for calibrated criminal justice when applied judiciously by courts.