Understanding the New Jersey AG’s Directive Revising Statewide Guidelines – Waiver of Mandatory Minimum Sentences in Non-Violent Drug Cases

Our criminal defense law firm represents individuals charged with illegal drug and narcotics offenses in Pennsylvania and New Jersey.  New Jersey, however, unlike Pennsylvania maintains a number of mandatory minimum sentences when it comes to drugs and narcotics aka – controlled dangerous substances.  In April 2021, the Office of Attorney General, however, issued a directive with regards to mandatory sentencing after Governor Murphy convened a commission to review the State’s sentencing laws and provide specific recommendations “to ensure a stronger, fairer, and more just state.”

The Parole Process in New Jersey

In New Jersey, the State divides a defendant’s sentence into two parts: imprisonment, then parole. For the majority of crimes, the defendant becomes eligible for parole after serving one-third of the sentence, with a strong presumption in favor of release immediately upon eligibility

 For approximately 80 crimes, however, State law requires that the sentencing judge impose a longer period of parole ineligibility that, depending on the offense, must be either a certain percentage of the total sentence—ranging from 33 to 85 percent—or a fixed number of years. Individuals sentenced for these crimes must serve the period of parole ineligibility in custody, and can’t apply any of their commutation or work credits to obtain an earlier release. See N.J.S.A. 30:4- 123.51(a).

As a result, individuals convicted of these mandatory minimum offenses typically spend a greater percentage of their sentences incarcerated than those convicted of crimes subject to the default rule of parole eligibility.

Six of New Jersey’s mandatory minimum crimes relate to non-violent drug activity:

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

In November 2019, the Criminal Sentencing and Disposition Commission (CSDC) issued unanimous recommendations calling on the State to eliminate mandatory minimum sentences for six non-violent drug crimes.  This Directive instructs prosecutors statewide to use existing statutory authority to waive the imposition of those mandatory minimum sentences, establishing rules ensuring the consistent application of such waivers in following four situations:

• during plea negotiations,
• after conviction at trial,
• following violations of probation,
• and in connection with a joint application to modify the sentences of inmates currently incarcerated.

 The Commission that included the Attorney General, the Public Defender, the President of the New Jersey County Prosecutors Association, and the Chairman of the State Parole Board, as well as representatives of the Governor and legislative leaders of both parties, recommended that the Legislature amend the State’s sentencing laws to end the imposition of mandatory parole ineligibility for these crimes and create a mechanism to retroactively modify the sentences of individuals currently incarcerated under mandatory minimum terms.

The Procedure to Waive the Mandatory Sentence

Upon enactment, the State would have 30 days to identify all incarcerated individuals who qualified for a sentence modification. After 30 days, all qualifying inmates would receive retroactive relief, with the court rescinding the mandatory period of parole ineligibility and modifying the sentence as if the defendant had been instead subject to the “default” rule of 33 percent parole ineligibility, minus prison credits, at the time of conviction.

During this 30-day period, however, the State would have the opportunity to file an objection in particular cases.  Where an objection is filed, the court would hold a hearing on whether to grant retroactive relief. If the State established by clear and convincing evidence that rescinding the inmate’s parole disqualifier would pose a substantial risk to public safety, then the court could decline to modify the sentence, or could reduce the parole disqualifier by less than the default. If the State failed to meet its burden, however, then the inmate’s sentence would be automatically modified as if an objection had never been filed.

Why the CSDC made this recommendation

The Commission’s 2019 report described facts and findings that gave rise to its unanimous recommendations. The Commission found that mandatory minimum laws have not simply fueled the significant increase in the State’s prison population over the last four decades but, also, have contributed to the stark racial disparities found in our prisons.

The Commission noted, for example, that Black residents constitute 14 percent of the State’s overall population but 61 percent of its inmate population, many of whom are serving sentences for non-violent drug offenses.11 The Commission argued that by eliminating mandatory minimum sentences for these crimes, New Jersey would take a “significant step” towards addressing the lack of proportionality in the State’s sentencing laws and help undo a system of “mass incarceration”

Commission Report, at 1-2. 9 Once an inmate reached the new date of parole eligibility, the inmate would proceed through the normal parole process, subject to the requirements of the Parole Board, including notification to any victims of the offense.

As a practical matter, the retroactive modification process would only benefit inmates convicted of multiple crimes when the most serious crime of conviction was the mandatory minimum drug crime. Inmates also serving a sentence for an offense with a longer period of parole ineligibility, e.g., an offense subject to the No Early Release Act, would be unlikely to see a change in their parole eligibility date. 10

The Commission also recommended that the Attorney General closely supervise the filing of notices of objection to ensure that they would be issued sparingly and use consistent criteria. 11 Id. at 19-20. Page 5 that has inflicted serious and long-lasting harms on the State’s residents, especially its residents of color. 12 The practical impact of the Commission’s recommendations, if adopted, would be significant.

The retroactivity provision would likely result in hundreds of inmates becoming immediately eligible for parole, with hundreds more reaching eligibility in the subsequent months. And the impact of the changes would grow over time, as the elimination of mandatory parole ineligibility for non-violent drug offenses would reduce the number of inmates sentenced to terms with a lengthy parole disqualifier. These reductions would accelerate efforts to reduce the State’s overall prison population and result in cost-savings over time.13 The Commission’s recommendations received widespread support at the time they were announced in November 2019. The Governor and legislative leaders endorsed the proposals, as did the Public Defender, the Attorney General, and all 21 County Prosecutors.

The Application Process

the State, jointly with an incarcerated defendant, may at any time file an application seeking to change a sentence for good cause, including a request to rescind a mandatory term of parole ineligibility.

This Directive therefore establishes statewide rules that require prosecutors to seek the waiver of mandatory parole disqualifiers for non-violent drug crimes during plea negotiations, following a probation violation, and after conviction at trial. Where the defendant makes a request, prosecutors will also be required to file a joint application to modify the sentences of inmates currently incarcerated.

These new rules essentially remove mandatory parole disqualifiers for all current and future non-violent drug defendants, and allow those currently incarcerated pursuant to such terms an opportunity for early release from custody. possible under current law—the Commission’s recommendation to eliminate the use of mandatory minimum sentences for non-violent drug crimes.

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