Mandatory Minimum

By William Riback

The end of mandatory minimum prison sentences for non-violent drug cases enacted by the Murphy Administration has been stopped by a court in Union County.

The Union County Court Criminal Court in State v. Arroyo-Nunez has upended the New Jersey Attorney General’s Directive.

In April, then-New Jersey Attorney General Gurbir Grewal directed all prosecutors to waive imposing mandatory minimum sentences for non-violent drug offenses, including cannabis possession within 1,000 feet of a school zone, which has a mandatory minimum of one year in prison.

The Attorney General had broad discretion in deciding on when to waive the mandatory minimum. So, recognizing the racist impact, he utilized his statutory authority to direct a blanket waiver eliminating mandatory minimums.

The State submitted that the mandatory minimum has “a troubling lack of “proportionality” to the offense. “The parties also contended that these disparate sentences promote a system of mass incarceration, which inflicts serious and long-lasting harms on the State’s residents.”

Diego Arroyo-Nunez was sentenced for possession of cocaine and received eleven years with a mandatory 24-month parole ineligibility. Abiding by the New Jersey Attorney General’s Directive, the prosecutor agreed with the defendant that his 24-month parole ineligibility would not be enforced, making him a free man. The prosecutor agreed that the sentence was excessive.

However, Superior Court Judge Susan Steele said the State overstepped its authority. The court’s opinion disregarded the most profoundly relevant fact in the case.

The court’s opinion actually continued the War on Drugs that began under former President Richard Nixon in the 1970s, which was designed to hurt minorities and liberal activists.

(More on Nixon’s launch of the War on Drugs can be found in my book Cannabis 101!)

In 2019, the New Jersey Sentencing Commission convened by Governor Phil Murphy (D) recommended eliminating all mandatory minimums for non-violent drug offenses because 80 percent of imprisoned individuals for non-violent drug offenses are Black and Hispanic. Systematic racism then must be a substantial factor in policing and the like.

The Sentencing Commission rightfully found racism to be intolerable, unnecessary, and negatively impacting New Jersey as a whole.

Unfortunately, the New Jersey Legislature was unable to pass this law because of a political rider unrelated to non-violent drug offenses. State Senator Nick Sacco (D-Hudson) wanted the bill to protect corrupt politicians as well.

The New Jersey Sentencing Commission of 2005 also found the law “profoundly discriminatory” because it did nothing to protect children and “ensnared” people of color. The Sentencing Commission recommended reducing the size of the school zone from 1,000 feet to 200 feet to eliminate the “profoundly discriminatory” impact. Yet, nothing has been done.

Mandatory Minimum Continued with War on Drugs Mentality

The trial court also quoted the anachronistic purpose section of the Comprehensive Drug Reform Act of 1986, which doubled down on Nixon’s racist strategy:

“[T]he battle against drug abuse and drug-related crime must be waged aggressively at every level along the drug distribution chain, but in particular, our criminal laws must target [people of color] for expedited prosecution and enhanced punishment those repeat drug offenders and upper echelon members of organized narcotics trafficking networks who pose the greatest danger to society. It is the intention of the Legislature to provide for the strict punishment, deterrence, and incapacitation of the most culpable and dangerous drug offenders.”

The law went on to sweep possession of cannabis and low-level offenders into its definition of those who are the most dangerous drug offenders for enhanced punishment designed to incapacitate them.

The Court’s Opinion also ignores the Commission to Study and Review the Penalties Imposed upon Individuals Convicted of Using Certain Substances Subject to the Provisions of the New Jersey Controlled Dangerous Substances Act, and the New Jersey Attorney General report which preceded it, which referred the drug hysteria underlying the Comprehensive Drug Reform Act as propaganda. The breadth of the Comprehensive Drug Reform Act and its enforcement remains a stain on New Jersey’s history.

This opinion would sit well with Harry Anslinger, who led efforts to make cannabis illegal in the 1930s as the head of what would become the Drug Enforcement Agency (DEA).

The basis of the trial court’s opinion was that the Legislature intended to allow mandatory minimum sentencing despite the trial court’s recognition of the statute’s plain meaning giving the Attorney General authority to waive the mandatory minimum.

The trial court under Constitutional Avoidance should have never reached separation of powers when the opinion recognized that Mr. Arroyo had “good cause” to be released from his 24-month stipulation of parole ineligibility:

“It is unequivocal the term “good cause” is undefined by either the rule or in case law. Nevertheless, it appears the bar for the good cause standard is a low, reasonable standard. The rule left ample room for interpretation, giving the court the latitude to evaluate each application on the merits of its good cause basis. In considering the position of the parties, it does appear this threshold has been met.”

The notion that this is a separation of power issue as opposed to anti-discrimination misses the mark. The New Jersey Attorney General has broad authority over prosecutors and police to ensure New Jersey’s criminal justice system has non-discriminatory laws.

The Appellate Division should soundly reject the trial court’s opinion. Not doing so be immoral to Arroyo-Nunez, his family, his community, and to the taxpayers of New Jersey who fund this mass incarceration to the tune of at least $60,000 per inmate per year.

By headynj

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