Attorney General Gurbir S. Grewal today issued a statewide directive to law enforcement instructing prosecutors to waive mandatory parole disqualifiers—commonly known as mandatory minimum prison terms—for non-violent drug offenses.
Directive 2021-4 addresses both current and past cases. Going forward, it directs prosecutors to waive the mandatory minimum terms associated with any non-violent drug offense under New Jersey law.
In addition, when requested by an individual who remains in prison solely because of a mandatory minimum term for a non-violent drug offense, prosecutors will file a joint application to rescind the mandatory period of parole ineligibility, so that, in effect, the individual’s modified sentence will be as if no mandatory minimum had been imposed. The Directive essentially takes the imposition of mandatory minimum terms “off the table” for all current and future non-violent drug defendants, and allows those currently incarcerated pursuant to such mandatory terms an opportunity for early release from custody.
In doing so, the Directive achieves—to the greatest extent possible under current law—the 2019 recommendation of Governor Murphy’s Criminal Sentencing and Disposition Commission, which called for, with broad consensus, the elimination of all mandatory minimum terms for non-violent drug crimes. “We cannot stand by and ignore the unjust and racially disparate impact of these mandatory minimum terms on non-violent drug offenders—primarily young persons of color,” said Governor Phil Murphy.
“It’s been well over a year since the Criminal Sentencing and Disposition Commission unanimously concluded that these mandatory minimums must be eliminated, and still justice is delayed and denied. We are through with waiting. My decision to return the bill on my desk to reflect the Commission’s recommendations is made substantially easier because of Attorney General Grewal’s strong action to stop these unfair prison sentences.” “It’s been nearly two years since I first joined with all 21 of our state’s County Prosecutors to call for an end to mandatory minimum sentences for non-violent drug crimes,” said Attorney General Grewal.
“It’s been more than a year since the Governor’s bipartisan commission made the same recommendation. And yet New Jerseyans still remain behind bars for unnecessarily long drug sentences. This outdated policy is hurting our residents, and it’s disproportionately affecting our young men of color. We can wait no longer. It’s time to act.” The Commission’s recommendation to eliminate mandatory minimum terms for non-violent drug offenses received widespread support, including endorsement by the Governor, legislative leaders, the Public Defender, the Attorney General, and all 21 County Prosecutors.
Mandatory minimum laws have fueled the significant increase in New Jersey’s prison population over the last four decades, and have also contributed to the stark racial disparities in the state’s prisons.
The Commission noted that Black residents constitute 14 percent of the state’s overall population, but 61 percent of its inmate population, with many serving sentences for non-violent drug offenses. Under New Jersey law—N.J.S.A. 2C:35-12 (“Section 12”)—prosecutors have the ability to waive the otherwise mandatory period of parole ineligibility for a drug offense. Section 12 states that the parties can enter into an agreement—before or after conviction—that provides for a shorter period of parole ineligibility than that required by the particular drug offense.
The Directive instructs prosecutors to enter into Section 12 waiver agreements in prospective cases, as well as with previously sentenced individuals in order to rescind their mandatory minimums. With the Section 12 waiver agreement in place, a defendant will default to parole eligibility after serving one-third of the sentence imposed—the standard parole ineligibility period for most state crimes. However, under the Directive, prosecutors also remain authorized to seek periods of additional parole ineligibility in non-violent drug cases—as they are in every case—when warranted to protect public safety based on the specific facts of the case.
State law authorizes a judge at sentencing to impose a discretionary period of parole ineligibility for any crime if the judge is clearly convinced that the aggravating factors in the case substantially outweigh the mitigating factors.
The Directive allows prosecutors to continue to seek discretionary periods of parole ineligibility and incorporate them into plea agreements where appropriate. Similarly, the Directive allows prosecutors to seek the continued incarceration of inmates who present a significant public safety risk. While prosecutors must file a joint application to modify the sentence of any inmate who remains in prison solely because of a mandatory minimum term imposed for a non-violent drug offense, they can seek the imposition of a discretionary period of parole ineligibility when the sentence is modified, if appropriate, which may result in continued incarceration.
To ensure such requests are made rarely and in a consistent manner, prosecutors will consult with the Director of the Division of Criminal Justice in such cases. Prosecutors must meet the same standards in court that would have applied at the initial sentencing if there had been no mandatory minimum term. Attorney General Grewal publicly called for an end to mandatory minimum sentences for non-violent drug crimes in a July 15, 2019 op-ed in the Star-Ledger. At the same time, all 21 County Prosecutors signed a letter to the Criminal Sentencing and Disposition Commission endorsing the same policy.