New Jersey has the strictest gun laws in the United States. The Graves Act governs New Jersey gun charges, and calls for anyone who is convicted of a handgun offense to receive a mandatory minimum sentence of 42 months in prison without parole. For decades prior to this, the mandatory minimum sentence had been fixed at 3 years, but in 2013 the minimum term was increased to 42 months and the degree of the offense was elevated from third degree to second degree.
The Graves Act was expanded in 2008 to include the unlawful simple possession of a handgun. Prior to that, the Graves Act sentencing enhancement only applied to convictions for possession of a firearm for an unlawful purpose or possession of a firearm during the course of committing certain specified crimes such as murder, manslaughter, aggravated assault, kidnapping, sexual assault, aggravated sexual assault, robbery, burglary and escape.
When the Graves Act was reworked substantially in 2008 to include simple possession of a firearm, the Attorney General issued a general directive to ensure the uniform enforcement of the Graves Act throughout New Jersey. This Graves Act directive created only two distinct means by which a defendant may avoid the mandatory minimum sentence, which are at the sole discretion of the prosecutor.
- A defendant may plead to a 12-month period of parole ineligibility or receive non-custodial probation. This exemption depends on the discretion of the prosecutor to offer it.
- A prosecutor may allow a defendant to apply for PTI (pre-trial intervention), a diversionary program which would allow defendant to eventually have the charges dismissed without having a criminal record. The PTI exemption is only available in extremely limited situations. The defense must establish compelling and extraordinary reasons to justify diverting the case from ordinary prosecution.
This policy has created many injustices due to overly strict interpretations of the intended purposes of the directive. A law abiding citizen from another state who lawfully purchased a gun in his home state and who is lawfully permitted to carry the gun in that state would face 42 months in prison for bringing that gun into New Jersey. Under the law, that defendant needs a compelling and extraordinary reason to justify diverting the case from ordinary prosecution. The best chance to avoid the minimum is to choose a criminal defense lawyer who has seen enforcement from the other side.