Murphy Administration Announces New NJ Clemency Program

Governor Phil Murphy recently issued Executive Order No. 362, which aims to reshape the clemency landscape in New Jersey by prioritizing certain cases for review. The Order does not expand or change the clemency criteria that commonly guide a governor’s pen; it does, however, direct faster review of certain non-violent convictions.

Clemency in New Jersey

While the program has been billed as “new,” clemency has always been on the books in New Jersey. New Jersey’s Constitution authorizes governors to “grant pardons and reprieves in all cases other than impeachment and treason” (N.J. Const. art. V, § II, para. 1). Despite this power, it has been almost eight years since a single petition has motivated a grant of clemency.

Clemency typically comes by way of pardon or commutation and offers an avenue of relief from incarceration, probation or parole, and allows those who have served their sentences to wipe clean their criminal records and remove lingering legal disabilities stemming from the facts of their convictions. Pardons are typically granted after one has already served their sentence. A pardon restores an individual to their status as before they were convicted. In other words, the legal consequences of a conviction vanish. Commutations, on the other hand, are typically granted to individuals who are still serving sentences and reduce the term thereof. A commutation does not necessarily remove the consequences of a conviction.

What’s Changed?

First, the Order establishes a Clemency Advisory Board. The Board, consisting of six members, will consider clemency petitions and make recommendations to the Governor’s office. The Board’s role is strictly advisory, and the governor retains complete discretion in granting or denying clemency. Second, the Order declares that certain clemency petitions are to be given priority over others. Although each clemency application will be given “individualized consideration,” Governor Murphy explained that “certain categories” of petitions are “particularly likely to warrant an exercise of executive clemency and therefore should receive prioritized or expedited consideration.” Priority is determined by the applicant’s status, i.e., whether the applicant has completed the term of supervision, and whether the applicant meets certain time- and offense-based criteria.

Expedited Review Criteria

For applicants who have completed their term of supervision, priority will be given to those who satisfy one or more time-based criteria, for example, those for whom 10 years have passed since having completed their most recent sentence and one or more offense-based criteria, e.g., the offense for which the applicant seeks clemency is no longer illegal. For applicants who are presently serving a term of government supervision, priority will be given to those who are:

1. Victims of domestic or sexual violence or sex trafficking and the crime for which the applicant seeks clemency was either: (i) an offense committed against their abuser or (ii) committed under the duress or coercion of their abuser
2. Subject to an excessive trial penalty
3. Seeking clemency for an offense that is no longer unlawful
4. Seeking clemency for an offense that would result in a lesser sentence under current law
5. Referred by the Conviction Review Unit of the Attorney General’s Office

Regardless of whether a clemency application is expedited, applicants have the chance to identify circumstances they believe support their request for executive clemency.

Conclusion

While renewed spotlight on the need to quickly remedy unjust, extreme and otherwise unwarranted sentences is a welcome development, what ultimately warrants clemency, or expedited review for that matter, is hardly cut and dry (for petitioners and attorneys alike). Only time will tell whether the new clemency program translates into a greater number of reprieves.