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New Jersey Directive Provides Relief for Certain Drug Offenders

by Casey J. Bastian

In February 2018, New Jersey Governor Phil Murphy convoked the Criminal Sentencing and Disposition Committee (“CSDC”) to analyze the state’s sentencing laws. The CSDC was tasked with providing specific recommendations “to ensure a stronger, fairer, and more just state.” The CSDC’s initial annual report was published in November 2019. The recommendations of the CSDC garnered the full endorsement of the Governor, legislative leaders, the Attorney General (“AG”) of New Jersey, Gurbir S. Grewal, all 21 County Prosecutors, and the Public Defender.

AG Grewal issued Attorney General Directive 2021-04 (“Directive”), which put the CSDC recommendations into effect as of May 19, 2021. The immediate impact of the Directive is upon those already sentenced to mandatory minimums and parole disqualification for six specific N.J.S.A. non-violent drug activity violations:

• 2C:35-3 “Leader of narcotics trafficking network”;

• 2C:35-4 “Maintaining or operating a facility producing a controlled dangerous substance” (CDS);

• 2C:35-5 “Manufacturing, distributing, or dispensing CDS”;

• 2C:35-6 “Employing a juvenile in a drug distribution scheme”;

• 2C:35-7 “Distributing, dispensing, or possessing with intent to distribute CDS within 1,000 feet of a school”; and,

• 2C:35-8 “Distribution of CDS to persons under age 18”.

The Directive’s retroactive provisions will allow hundreds of prisoners to be immediately eligible for parole; with hundreds more becoming eligible in the coming months. The Directive requires that the state, within 30 days, identify all qualifying prisoners upon its enactment of the retroactive provisions.

The Directive also requires creation of an online portal—njoag.gov/sentencing—for prisoners to apply for relief. Requests for retroactive relief can be made by prisoners who are: (a) currently serving a sentence for an offense listed above that includes a period of parole ineligibility and (b) parole ineligibility at the time of request is due solely to mandatory parole disqualifiers.

Portal submissions will be processed by prosecutors in conjunction with the Office of the Public Defender (“OPD”). The OPD has consented to represent eligible prisoners in the filing of a joint motion to have a period of incarceration reduced via the granting of parole. Prisoners and their families may inquire of the OPD about eligibility and other information through the OPD’s helpline, (833) 947-2127 or at thedefenders@opd.nj.gov.

The Directive’s mandates cure the prior ineligibility of parole for certain offenses. State law formerly required a judge to impose extended periods of parole ineligibility for almost 80 crimes in New Jersey, including the six mentioned above. Almost all other crimes in the state allow for eligibility of parole after only one-third of the imposed term of imprisonment has been served. Now, non-violent, low-level drug offenders may benefit from earlier eligibility.

The Directive is legally permissible under N.J.S.A. 2C:35-12 waivers, known as “Section 12 waivers.” Section 12 provides the court with discretionary authority to waive certain mandatory requirements when imposing or modifying a sentence. Without the legislature having to create new law, Section 12, in conjunction with prosecutorial discretionary authority, facilitates curing sentences that are currently disproportionate to the offense conduct.

Beyond facilitating the joint application process for retroactive sentencing modification, the Directive extends the waiver of mandatory terms of disqualification of parole to three other areas: (1) plea offers and agreements, (2) posttrial agreements made prior to sentencing, and (3) violations of parole. These new Section 12 waiver provisions are to remain in effect until repealed, amended, or superseded by order of the AG.

Two important caveats to the Directive’s mandates are made clear. One, a court must still impose a sentencing order that comports with typical sentencing considerations, i.e.—the nature and circumstances of the offense conduct, the criminal history of the defendant, and any mitigating or aggravating circumstances. Two, if an agreement is reached between the state and the defendant that dictates a lesser term of imprisonment, period of parole ineligibility, fine, penalty, or other disposition, a court may not utilize a Section 12 waiver to go below those agreed upon terms.

Non-violent, low-level, drug offenders deserve these considerations. Excessive terms of imprisonment are not beneficial to offenders, society, or the justice system’s stated purposes and goals. Let’s hope that other jurisdictions follow New Jersey’s lead. 

Source: NJ.gov; capemaycountyherald.com

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