Eligibility and conditional release under ISP can
occur only after defendant serves at least 60 days in the
state facility. Each defendant will, therefore, have
experienced some period of confinement, and will have
experienced the deterrent benefit of confinement. Thus,
ISP is a sentencing disposition, “albeit a modification of
a sentence.” State v. Stewart, 136 N.J. 174, 180 (1994).
For a detailed explanation on the mechanics of ISP,
as well as the studies and policies underlying ISP, see State
v. Clay, 118 N.J. Super. at 509, 512-17. (App. Div.
1989).
Procedurally, ISP motions made pursuant to R.
3:21-10(b)(5) are addressed entirely to the sound
discretion of the three judge panel assigned to hear them.
Because of the nature of the program, there is no
administrative or judicial review at the second level of
eligibility established under the program, nor any
appellate review of the panel’s substantive decision. R.
3:21-10(e).
A three-member Screening Board screens applica-
tions for the program, interviews applicants and
recommends placement to the Resentencing Panel for its
review. The Board is composed of a representative of the
Department of Corrections, the Director of ISP, and a
public member appointed by the Chief Justice.
A Resentencing Panel, consisting of three Superior
Court judges, was created to review the ISP application
and case plan of those inmates receiving favorable
recommendations from the Screening Board. If the Panel
determines after a hearing that the defendant is a
desirable candidate for ISP, it grants the application for
resentencing and adjourns the hearing for 90 days while
placing the defendant on recognizance to the community
sponsor. The defendant is thereafter expected to adhere
to his case plan and to the conditions of ISP. After the 90
day period, the defendant may reapply to the
Resentencing Panel for another 90-day release period. If
the Panel is satisfied with his progress, it will continue his
release pending resentence for a second 90-day period.
Successful completion of this period will trigger a
resentencing hearing at which defendant will be
resentenced pursuant to R. 3:21-10(b) to the original
term of incarceration less the time served. Sentence then
will be suspended in accordance with 2C:45-1, subject to
the defendant’s continuing compliance with his plan and
ISP conditions. The maximum period of suspension will
be the maximum term which was initially imposed or five
years, whichever is less, minus credit for time served. All
ISP participants must successfully complete a minimum
of one year of intensive supervision. Thereafter, they may
be transferred from intensive supervision to regular
probation supervision or be discharged entirely at the
discretion of the Resentencing Panel. All decisions are
unanimous by the Resentencing Panel.The Program provides for solicitation of responses
from such sources as the sentencing judge, prosecutor’s
office, probation office, victim/complainant and ISP
officer as to the suitability of the inmates for
participation. The prosecutor’s office has two
opportunities to provide input. Initially, it may respond
after a defendant submits an ISP application. Then, the
prosecutor’s office can respond prior to an ISP
Resentencing Panel hearing. At this second opportunity,
it will review the exact materials to be relied upon by the
Resentencing Panel, including institutional records of
the inmate.The courts do not consider ISP participants to be
under custody, because they are free to be in the
community, although under strict supervision. Thus,
our Supreme Court held that an ISP participant who
leaves the State of New Jersey without appropriate
authorization is not guilty of “escape” under N.J.S.A.
2C:29-5. State v. Clay, 118 N.J. 251 (1990), aff’g 230
N.J. Super. 509, 530 (App. Div. 1989). Rather, the
Legislature currently classifies unauthorized leave from
the state while on ISP as a third-degree crime under
N.J.S.A. 2C:29-5b, the statute which proscribes parole
violations.