In State v. Johnson, 166 N.J. 523, 766 A.2d 1126 (2001), the Court held that a factual finding as to whether an offense constitutes a "violent offense," for which the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, requires imposition of a mandatory minimum prison term of 85% of the overall sentence, must be made by a jury, and that the jury's finding must be made beyond a reasonable doubt.
NERA does not expressly state whether a finding concerning a factual predicate for a NERA sentence should be made by the court or a jury, nor does it set forth the standard of proof that governs such a finding. 166 N.J. at 539-40, 766 A.2d 1126.
However, to avoid the "fundamental constitutional concerns" which would arise from an interpretation of NERA under which the trial court could find the predicate facts that mandate an enhanced sentence by a preponderance of the evidence, Id. at 543, 766 A.2d 1126, the Court construed NERA to require such findings to be made by a jury beyond a reasonable doubt.
A NERA sentence does not impose an increased maximum prison sentence beyond that otherwise available under the Criminal Code. However, "we have always recognized that real time is the realistic and practical measure of the punishment imposed."
Because of the uncertainty expressed by the U.S. Supreme Court respecting the continuing vitality of McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), and the broad understanding of "punishment" recognized by this Court, we will construe subsection (e) of NERA to require that the "violent crime" condition must be submitted to a jury and found beyond a reasonable doubt. to do otherwise would be to subject NERA to constitutional challenge. Id. at 541, 543-44, 766 A.2d 1126.