New Jersey Attorney General Gurbir Grewal has issued a Directive to prosecutors statewide to waive mandatory minimum sentences for six non-violent drug offenses, including providing retroactive relief for currently incarcerated offenders, effective May 19, 2021.
The offenses eligible for relief are:
- 2C:35-3 Leader of narcotics trafficking network
- 2C:35-4 Maintaining or operating a facility producing 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
- 2C:35-8 Distribution of CDS to persons under 18
These offenses carry statutory periods of parole ineligibility from one-half of the sentence to as much as 25 years. The Directive reduces the period of parole ineligibility for these offenses to the “default” of one-third of the period of incarceration typical for most prison sentences.
The Directive relies on the “Section 12” waiver of parole ineligibility pursuant to a “negotiated agreement” between the State and defendant, per N.J.S.A. 2C:35-12, subject to Vasquez and Brimage Guidelines. In addition, Rule 3:21-10(b)(3) allows for a joint application for a modification in sentence, including rescission of a period of mandatory parole ineligibility.
The Directive addresses application of the new policy at four stages of prosecution: plea offers, post-trial agreements, violations of probation, and joint applications for sentence modification.
Plea Offers
All plea offers by state, county, and municipal prosecutors related to the enumerated offenses or any violation subject to a mandatory extended term pursuant to 2C:43-6(f) must include a Section 12 waiver providing for only the “default” period of parole ineligibility – that is, one-third of the sentence, less commutation, minimum custody, and work credits earned while in custody – thereby effectively eliminating the mandatory minimum. Although the offer must include a Section 12 waiver, the parties are to negotiate other terms of an agreement, and courts retain discretion to decide matters not included in agreements. Prosecutors must still consult the Revised Brimage Guidelines, although shall not be bound by them, and supervisors must ensure that plea offers are uniform among similarly situated defendants. The plea agreement may stipulate that the court is authorized to determine that aggravating factors substantially outweigh mitigating factors and impose a longer period of parole ineligibility.
Post-Trial Agreements
After a conviction at trial for one of the offenses, the prosecutor must offer the defendant an agreement that the sentence will include only the “default” period of parole ineligibility, providing that the court retains discretion to impose a longer period if aggravating factors substantially outweigh mitigating factors.
Violations of Probation (VOPs)
Prosecutors must offer a Chapter 12 waiver in all VOPs related to Chapter 35 offenses that have not previously been subject to a Chapter 12 waiver.
Joint Applications for Sentence Modification
Upon the request of the defendant incarcerated for one of the enumerated offenses, a prosecutor must a file a joint motion pursuant to Rule 3:21-10 to rescind the mandatory period of parole ineligibility. The defendant must be parole-ineligible solely because of an enumerated offense to qualify, and the prosecutor must further agree that the aggravating factors do not substantially outweigh mitigating factors. The joint motion must propose that the “default” parole ineligibility apply, and that the parties will jointly oppose any other modification.
If the prosecutor believes that aggravating factors substantially outweigh mitigating factors, he must still offer to file a joint motion for relief from mandatory parole ineligibility but may reserve the additional right to argue for some additional period of ineligibility based on the factors.
By May 19, 2021, the Division of Criminal Justice will publish procedures for prosecutors to review defendants’ requests for relief and to consult with the DCJ. Priority will be given to incarcerated defendants who would be eligible for parole prior to July 1 and thus would stand to benefit immediately from the new policy.
If you believe you or a loved one may be eligible to benefit from the new Directive, consult with an experienced criminal defense attorney who can advise you and advocate for your rights.