NEW JERSEY – Attorney General Gurbir Grewal Wednesday released guidance addressing prosecutions of COVID-19 related offenses, which is designed to ensure that there is accuracy, uniformity and consistency by municipal prosecutors and in municipal courts throughout the state.
“While the vast majority of New Jersey residents followed the Governor’s Executive Orders and helped us to slow the spread of COVID-19 and save lives, and continue to do so, some did not,” said Attorney General Grewal. “We have a duty as law enforcement officers to bring violators to justice, and to do so in a way that ensures uniformity. We also have a responsibility to exercise discretion in the interests of justice, including to use diversion programs and community court if available. My guidance today advises municipal prosecutors on the best ways to achieve those important goals of uniformity and consistency, deterrence, and responsible discretion.”
The guidance emphasizes that no municipal prosecutor may adopt a categorical policy or practice of refusing to enforce COVID-19 related charges, but provides a significant number of options for the exercise of prosecutorial discretion in individual cases to achieve the interests of justice. The guidance notes that a categorical policy of refusing to enforce such charges would be inappropriate because each charge had already been reviewed and approved by a designated county prosecutor or assistant prosecutor—as the Attorney General previously required—and also that such a policy would lead to disparate administration of these laws.
The guidance does provide municipal prosecutors with significant options for using discretion in appropriate cases involving violations of the Governor’s Executive Orders. The guidance makes clear that prosecutors may accept a plea to a lesser or other offense, move to amend an original charge, and request dismissal of a charge. While one reason to do so would be where the prosecutor believes there is insufficient evidence, the guidance adds that other factors include the individual’s age and criminal history, and the nature and circumstances of the offense, including whether the individual had been previously warned, whether their offense jeopardized the health, welfare, or safety of another person, including a minor, and whether their misconduct required a significant law enforcement or first responder response. In general, “a municipal prosecutor may also consider the impact of adverse collateral consequences of a conviction based on the specific circumstances or factors presented by the defendant or elicited by the court.”
The guidance also emphasizes the role of condition dismissals, diversion programs and community court, whenever appropriate in the interest of justice. Factors again would include the nature and circumstances, the actions of the defendant, and the needs and interest of any victim.
The guidance addresses the impact of Executive Order 152. Last week, Governor Murphy announced that, going forward, all outdoor political activity—and all outdoor worship services—would be permitted to gather in any number, in recognition of the lower risks of COVID-19 transmission outdoors and the centrality of these activities to society. The guidance makes clear that in order to “ensure that all outdoor political activities and outdoor worship services receive uniform treatment,” the Attorney General is directing prosecutors to dismiss the limited number of Executive Order violations that were previously filed against organizers of outdoor political protests or outdoor religious services. Based on the information the Division of Criminal Justice has to date, five individuals have been charged with such violations, and no individual protestors or worshipers have been cited.