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The core concepts of the New Jersey Comprehensive Drug Reformation Act of 1987 (Act) is to seriously punish and deter drug offenders. Resultingly, the Act is conceived to enhance punishment for multiple drug offenders and other participants of systematic drug sales because they create the greatest danger to social order. The purpose of the strict punishment scheme for these types of offenders is to reduce the availability of illicit substances, as well as drug related offenses. Thus, if an individual who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a CDS or one of its analogs, where that person has sustained a prior conviction of a similar crime, or a crime relating to the maintenance of a CDS production facility, the employment of a juvenile to sell drugs, a narcotics leader or a school zone offense, a prosecutor has the option to request an extended term of imprisonment which can usually double the period of incarceration.

Prior conviction of one of the enumerated offenses can occur under the current form of the Act, its predecessor and other similar statutes of the United States or sister states, where the predicate offenses are “substantially” equivalent to the offenses enumerated above. It does not matter if the prior conviction resulted in a term of imprisonment or even if they relate to a 3rd or 4th degree offense.

Once a prosecutor makes an application for an extended term, the sentencing judge does not have the discretion to reject the application. An extended term of imprisonment under this section of the Act can be denied or vacated only if the defendant can show that the prosecutor’s decision was arbitrary and capricious which is a very difficult standard. The statute is applicable even though the second offense was committed before the first or predicate offense was reduced to judgment or plea. Prior convictions that are remote in time may not be used to extend a term of imprisonment.

When the section of the Act requiring an extended term for repeat drug offenders was first reviewed by the Supreme Court, it was determined to be unconstitutional because it placed absolute and unfettered discretion with the prosecutor. As a result, the court recommended certain guidelines. In 1992, the Attorney General issued those guidelines which required prosecutors to provide notice to both the court and the defendant disclosing the government’s intention to seek an extended terms. It also required the government to prove the predicates associated with the request for an extended term. In addition, certain other factors were established to justify the government’s waiver of the enhanced penalty, including the ability to prove the prior conviction by a preponderance of the evidence, whether the defendant had counsel at the prior conviction, the defendant’s decision to plea guilty under certain circumstances; its ability to cooperate with the government; its ability to proof the current offense; the remoteness of the prior offense; and whether the defendant derived a substantial source of income from his/her criminal conduct. Other compelling circumstances were the seriousness of the present offense and the predicate offense, as well as the nature and the amount of the CDS.

Once it is concluded that a defendant is to receive an enhanced sentence, the trial court must than embark upon its traditional analysis of balancing the aggravating factors against the mitigating factors to determine whether the term of imprisonment should be above or below the presumptive terms. Once the term of imprisonment is established, the court can than fix the period of parole ineligibility that can range between ⅓ and ½ of the term of imprisonment.

In 2006, the Supreme Court addressed an issue raised by a defendant who contended that the fact findings process associated with the extended term options under the Act, including the factors fixed under the Attorney General’s Guidelines and the trial court’s responsibility to balance the aggravating and mitigating factors required an adjudication by a jury under the Sixth Amendment’s right to a jury trial. The court began its analysis with the United State’s Supreme Court decision in Apprendi v. New Jersey, which was a case that analyzed the constitutionality of New Jersey’s hate crime statute which was a law that allowed an enhanced penalty where a defendant committed a crime with the purpose to intimidate an individual because of race, color, gender, handicap, religion, sexual orientation or ethnicity. In Apprendi, the Supreme Court found that the motive for the criminal conduct had to be determined by a jury and since the statute allowed a judge to make that determination, the Court determined that the statute violated the 4th Amendment’s Due Process right to notice and the right to a jury contained in the Sixth Amendment. In the Apprendi case, the Court noted, however, that prior convictions were exceptions to the rule laid down in that case to the extent that they may be used to enhance penalties without a formal adjudication by a jury. Resultingly, the court concluded that since the sentencing court’s sole finding of fact for an extended term was whether the defendant sustained a prior conviction under the Act, the defendant’s right to a jury trial was not abridged.

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