State v. Black

Decision Date14 May 1998
Citation153 N.J. 438,710 A.2d 428
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Jerry BLACK, Defendant-Appellant.
CourtNew Jersey Supreme Court

Stephen W. Kirsch, Assistant Deputy Public Defender, for defendant-appellant (Ivelisse Torres, Public Defender, attorney; Barbara A. Hedeen, Assistant Deputy Public Defender, on the letter brief).

Paul H. Heinzel, Deputy Attorney General, for plaintiff-respondent (Peter Verniero, Attorney General of New Jersey, attorney).

The opinion of the Court was delivered by


Defendant's parole was revoked after he violated the conditions of his parole by failing to report to his parole officer, failing to refrain from drug use, and relocating his residence to another state. The primary issue posed by this appeal is whether, in view of the revocation of his parole by the Parole Board, defendant's criminal prosecution for absconding from parole is barred by principles of double jeopardy and fundamental fairness. A collateral issue is whether defendant is entitled to jail credit against his sentence on the absconding conviction for his time in custody from the date of his arrest for absconding until the date of sentencing.


In February 1991, defendant-petitioner Jerry Black was sentenced to a three-year custodial prison term following his plea of guilty to one count of distribution of a controlled dangerous substance (CDS) and one count of conspiracy to distribute CDS. Defendant was released on parole in July 1992. When defendant failed to report to his parole officer on October 14, 1992, as required, he was classified the next day as an absconder and a parole warrant issued for his arrest.

Indicted in February 1993 on a single count of third-degree absconding from parole pursuant to N.J.S.A. 2C:29-5b, defendant, who had relocated out-of-state, was returned to custody on June 16, 1995. Defendant pled guilty to the absconding charge in return for the State's agreement to recommend a three-year sentence to be served concurrently with defendant's original CDS sentence. On August 22, 1995, the Parole Board issued a Notice of Decision revoking defendant's parole and ordering him to complete the remaining 337 days of imprisonment on the CDS conviction commencing as of the date of his return to custody. On October 6, 1995, the Law Division sentenced defendant on the absconding conviction in accordance with the plea arrangement, crediting him with three days against the absconding sentence for time served. Defendant's Adult Presentence Report suggests that the three-day credit was for time served from June 26, 1995, the date when the bench warrant for defendant's arrest for absconding from parole was executed, until June 28, 1995, the date when a parole detainer was filed. The Presentence Report indicates July 5, 1995, as the date of defendant's formal arrest for absconding. Defendant's briefs, however, all refer to June 26, 1995, as the date of his arrest for absconding.

Defendant appealed his conviction and sentence, contending that his criminal prosecution for absconding from parole should have been barred by state and federal constitutional principles of double jeopardy and by principles of fundamental fairness because the revocation of parole punished him for the same conduct underlying the absconding charge. Defendant further argued that the trial court should have credited him on the absconding sentence with 103 days of time served from the date of his arrest for absconding on June 26, 1995, until the date of his sentencing on October 6, 1995. The Appellate Division rejected both of defendant's contentions. State v. Black, 295 N.J.Super. 453, 685 A.2d 485 (App.Div.1996). We granted defendant's petition for certification. 149 N.J. 144, 693 A.2d 112 (1997).


The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, made applicable to the States by the Fourteenth Amendment, protects against the reprosecution of a person for the same offense after an acquittal or conviction, and against multiple criminal punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L. Ed.2d 187, 194 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L. Ed.2d 656, 665 (1969). Protection against double jeopardy under the New Jersey Constitution, art. I, p 11, is at least coextensive with the protection afforded by the federal double jeopardy provision. State v. Womack, 145 N.J. 576, 582, 679 A.2d 606, cert. denied, --- U.S. 517, 117 S.Ct. 517, 136 L. Ed.2d 405 (1996); State v. Koedatich, 118 N.J. 513, 518, 572 A.2d 622 (1990).

The Double Jeopardy Clause's prohibition against multiple punishments clearly protects against a second criminal penalty being imposed in a second criminal prosecution for the same offense. It is not generally implicated by penalties imposed in civil and administrative proceedings. However, the United States Supreme Court held in 1989 that a civil or administrative penalty imposed in addition to a criminal sentence may be found to violate double jeopardy protections when it is based on the same conduct as the criminal charge and is punitive, rather than remedial, in nature. United States v. Halper, 490 U.S. 435, 446-48, 109 S.Ct. 1892, 1900-02, 104 L.Ed.2d 487, 500-02 (1989) (holding that where defendant was sentenced to two years imprisonment for Medicare fraud and then assessed civil penalty in excess of $100,000, which bore no relation to government's actual damages, penalty was punitive and thus violated Double Jeopardy Clause).

Under Halper, the determination of when a civil or administrative sanction constitutes "punishment" for double jeopardy purposes depended on "the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction." Id. at 447 n. 7, 109 S.Ct. at 1901 n. 7, 104 L.Ed.2d at 501 n. 7. According to the Halper Court, the threshold question was thus whether the sanction as applied to the specific defendant serves the goals of punishment, namely retribution and deterrence. Id. at 448, 109 S.Ct. at 1901-02, 104 L.Ed.2d at 501-02. In applying the Halper standard under both the federal and New Jersey constitutions, this Court has found that a sanction may be determined to be punitive if either the law pursuant to which the sanction was imposed was intended by the legislature to impose punishment or the impact of the sanction is punitive. Womack, supra, 145 N.J. at 583, 679 A.2d 606; see also Doe v. Poritz, 142 N.J. 1, 46, 662 A.2d 367 (1995) ("An initial inquiry is whether the legislative intent was regulatory or punitive: ... if the former, the inquiry changes to whether the impact, despite the legislative intent to regulate, is in fact punitive...."). Whether the civil or administrative sanction is imposed before or after the criminal prosecution for the same conduct is immaterial to the determination of whether the protection against double jeopardy has been violated. Womack, supra, 145 N.J. at 585, 679 A.2d 606.

Subsequent to oral argument in this appeal, the United States Supreme Court decided Hudson v. United States, 522 U.S. ----, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). In Hudson, a five-member majority of the Court largely disavowed the double jeopardy analysis used in Halper. Id. at ----, 118 S.Ct. at 491, 139 L.Ed.2d at 456-57. The majority explained its dissatisfaction with the Halper Court's analysis:

Our opinion in United States v. Halper marked the first time we applied the Double Jeopardy Clause to a sanction without first determining that it was criminal in nature.


As the Halper Court saw it, the imposition of "punishment" of any kind was subject to double jeopardy constraints, and whether a sanction constituted "punishment" depended primarily on whether it served the traditional "goals of punishment," namely "retribution and deterrence." Any sanction that was so "overwhelmingly disproportionate" to the injury caused that it could not "fairly be said solely to serve [the] remedial purpose" of compensating the government for its loss, was thought to be explainable as "serving either retributive or deterrent purposes."


We believe that Halper 's deviation from longstanding double jeopardy principles was ill considered. As subsequent cases have demonstrated, Halper 's test for determining whether a particular sanction is "punitive," and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable. We have since recognized that all civil penalties have some deterrent effect. If a sanction must be "solely" remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause.

[Id. at ---- - ----, 118 S.Ct. at 493-95, 139 L.Ed.2d at 459-61 (citations and footnotes omitted).]

The Court thus rejected the rule that whether a sanction is subject to double jeopardy restraints depends on whether that sanction is "punitive," as opposed to "solely" remedial in nature, and reestablished the traditional rule that whether a sanction is subject to double jeopardy restraints depends on whether that sanction essentially constitutes a criminal penalty. Id. at ---- - ----, 118 S.Ct. at 493-94, 139 L. Ed.2d at 458-59. See also United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641, 65 L. Ed.2d 742, 749 (1980)(noting in dicta that Double Jeopardy Clause protects only against two criminal punishments); Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L. Ed.2d 346, 354 (1975)("In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution."); Helvering v. Mitchell, 303 U.S. 391, 398-99, 58 S.Ct. 630, 633, 82 L. Ed. 917, 921 (1938)("Unless this sanction was intended as punishment, so that the proceeding is essentially criminal, the double jeopardy clause provided for the...

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