New Jersey Drug Arrest Series Part I

The Hostile Environment: (1 of 10)

For the first eight months of 2007, the federal and state governments spent over $33,000,000,000 in their efforts to detect and prosecute drug related offenses! During that time, almost 1,030,000 people were arrested in this country for a drug-related offense, which equates to one arrest every 30 seconds. Of those people, 514,204 were arrested for a marijuana-related offense.

Today, we imprison more of our brothers and sisters than any other country in the world, including China, the Soviet Union and South Africa. In November 2006, the U.S. Department of Justice disclosed that one of every 32 people in this country, which is a total of 7 million people, are in prison, on probation, or on parole. In 2003, 55% of all federal prisoners had been convicted of drug-related offenses. Inexplicably, federal sentences are longer for drug-related offenses than for violent felonies, including arson, manslaughter, weapons , extortion or racketeering.

By some projections, the cost of placing a drug dealer behind bars is approximately $450,000, including the cost of investigation, arrest, prosecution and a presumed mandatory prison term of five years. http://www.druglibrary.orgThe government spends more money to investigate and incarcerate drug offenders than to educate our children. The cost per year, just for incarcerating these prisoners, is 3 billion dollars. At one point, in the last few years, Colorado law-makers diverted $59,000,000 originally dedicated to its colleges and universities into paying for prison expansion. Since there are over 20 states under federal court orders to reduce prison over-crowding, it is highly unlikely that our education system will receive the financial attention it so desperately needs.

How did this happen? How did it come to pass that this country which is considered by most to be the "land of the free" and the most progressive of all countries in the world, has committed itself to condemning a vast majority of its citizens to the dark, dangerous and desperate dungeons that law enforcement officials call correctional facilities? The answer is simple, it is the so-called "war on drugs".

The "war on drugs" is not a new political or social phenomenon. It is as old as the commercial proliferation of drugs which began centuries ago. One of its first landmarks was the Opium Wars, where, in the 1880's, the United States attacked China to block the exportation of opium to our country.

The newest version of the "war on drugs" began in the late 1960's, at a time when the Vietnam War was straining the country, both socially and politically. The riots and protests that occurred during that time were emotionally unsettling and produced extremely high levels of anxiety and fear nationwide. The compulsion of the times moved Middle America to press the government to provide better police protection. It was not too long before the "war on drugs" began to compete with the "cold war" in political effort and affect. The mere suggestion that a political candidate was soft on crime spelled certain disaster. Newspapers and other media sources fueled the flames of public anxiety. Some say that this media sensationalization was conceived to enhance circulation and to benefit others who profit from the mass-scale incarceration that soon followed. In 1968, Congress responded with a major anti-crime bill. Shortly thereafter, then-President Richard Nixon added drug dealers and violators to the list of America’s greatest enemies. Even in it early stages, the "war on drugs" produced a significant jump in arrests. In 1964, the entire law enforcement community in the state of New Jersey had developed only 1,618 drug-related arrests. Six years later, there were approximately 23,000 arrests.

In the early 1970's, New York implemented sentencing standards that required drug offenders to receive the harshest penalties. The statute provided a mandatory 15- year term for possession of small amounts of narcotics. Throughout the 1980's lawmakers competed with one another to introduce ever-harsher penalties in the "war on drugs" and its larger counterpart, the "war on crime." The battle escalated into scorched- earth warfare with the introduction of crack cocaine, and a new wave of laws boosting penalties higher and higher soon evolved.

Consistent with the priorities created by this social hysteria, various states began to remove the discretionary prerogative historically provided to judges during the sentencing process. These new laws established mandatory prison terms, with parole disqualifiers for specific crimes, which required a judge to impose specifically defined minimum terms of imprisonment before an inmate became parole-eligible.

Introduction to New Jersey's Drug Statute (2 of 10)

Today, a person charged with a drug-related offense must be prepared to overcome the enormous prejudices created by the negative political and social environment identified above, but also, the enormous wealth that government has committed to this seemingly holy crusade.

New Jersey’s showcase weapon, in a rather large arsenal of weapons implemented to combat its version of the "war on drugs", is called the "Comprehensive Drug Reform Act of 1987" (Drug Statute). The Drug Statute was conceived to wage an aggressive battle against drug-related crimes, to expedite prosecution, and enhance punishment for repeat drug offenders and upper echelon dealers. The express policy of the Drug Statute is to punish drug offenders based on various factors, including the seriousness of the offense, the quantity and purity of the drug involved, the location of the offense, the age of the people associated with the illicit transaction, and the role of the actor in the distribution network.

In a frank disclosure of legislative intent, New Jersey’s Supreme Court has observed that the state’s legislators were not overly-concerned with treating drug dealers "fairly" when they enacted the Drug Statute.

A. The Scheduling Concept

All of the substances covered by the Drug Statute are identified as controlled dangerous substances (CDS) and are categorized into one of five schedules. The placement of a substance into a schedule is influenced by a number of considerations, including the potential for abuse, its history of abuse and its addictive qualities. In order for a substance to find its way into Schedule I, which involves the most serious of violations, there must be a high potential for abuse and no accepted medical use or lacking any safety standards for its use. Remarkably, marijuana has found it way into Schedule I. 1

B. The Weight Concept

The weight of the CDS can increase the grade of an offense. Thus, if one is convicted of the distribution of marijuana, where the weight of the substance is in excess of one pound, the sentence will be as a third degree offender. If it is less than an ounce, the sentence will be as a fourth degree offender.

The Drug Statute makes it clear that in determining the weight of the CDS, a jury can consider any dilutants. Thus, for purposes of determining the weight of cocaine, a jury can consider, not only the weight of the pure cocaine in the sample, but any cutting agents. Similarly, the weight of the stems, stalks and seeds in a container of marijuana will be considered, even though they do not contain much or any hallucinogenic properties.

Moreover, the government does not have to test each and every package or container of the substance to allow a jury to conclude that all of the packages or containers included the substance, subject of its case. In one case, an individual was convicted of possession with intent to distribute cocaine and sentenced to 7 years in prison, where the government’s expert only tested 15 of the 180 vials of the drug uncovered at his apartment. The basis for the court’s ruling was that the random testing of the 15 vials provided was sufficient circumstantial evidence to allow a jury to conclude that the remainder of the containers contained cocaine.

Finally, although the government must prove the weight of the CDS beyond a reasonable doubt, it does not have to prove that one knew the weight of the CDS so long as it is established that the person knowingly possessed the CDS. Thus, if a person distributes a package of marijuana where he/she thought that the weight of the package was less than one ounce, when in reality it was more than one ounce, ignorance as to the actual weight of the substance is not a defense and criminal liability will rise to a more serious crime that will require a more serious sentence.

General Principles Relating to the Sentencing of Drug Offenders (3 of 10)

A. The Grading Concept

In New Jersey, there are two categories of criminal conduct: disorderly persons offenses and crimes. Disorderly persons offenses, which include petty disorderly persons offenses, are the least serious of the two categories. They are prosecuted in the municipal court in which the offense occurred. The maximum penalty for a disorderly persons offense is a $1,000 fine and 6 months in jail. The maximum penalties for a petty disorderly offense is a $500 fine and 30 days in jail. In these cases, a defendant is not entitled to a jury trial, which is a very important consideration in his/her effort to obtain an acquittal. That is so because local judges, unlike jurors, are less likely to question the integrity of the arresting or investigating government agent of the municipality in which they preside.

Crimes, on the other hand, require a jury trial and certain other procedural events required by the Constitution. Crimes can range from a fourth degree crime to a first degree crime. A fourth degree crime is the least serious; a first degree crime is the most serious. The trial court’s sentencing prerogative on certain first degree drug offenses can include life imprisonment with a parole disqualifier of 25 years, which means that a defendant would have to complete 25 years of a prison term before being considered for parole. A fourth degree crime carries a maximum sentence of 18 months. The range of fines is just as disparate. The maximum fine under a first degree crime is $200,000, whereas a fourth degree crime’s maximum is $10,000.

B. The Sentencing Range and Presumption Concepts

For hundreds of years, the trial judges in this country enjoyed wide discretion on sentencing day. With the advent of the "war on drugs" and perhaps a recognition that uncontrolled judicial discretion produced an inequality in the administration of justice, both federal and state legislatures began to control the trial court’s sentencing prerogative.

Today, New Jersey’s criminal code (Criminal Code) structures a trial court’s sentencing options in the form of sentencing ranges and sentencing presumptions. An abbreviated analysis of these concepts as they relate to the various categories of crime is presented below. Before beginning, however, it is important to note that certain sections of the Drug Statute and other parts of the Criminal Code can trump these general concepts with specific sentencing "enhancers" and other exceptions or alternatives.

The Criminal Code specifically fixes a minimum and maximum term of imprisonment for each offense. Absent special circumstances that are defined in the statute, a trial court’s sentence must be within these ranges, which include the following:

1. First Degree Crimes

The sentencing range is 10 to 20 years. The presumptive term of imprisonment is 15 years. The maximum fine is $200,000.

2. Second Degree Crimes

The sentencing range is 5 to 10 years. The presumptive term of imprisonment is 7 years. The maximum fine is $150,000.

3. Third Degree Crimes

The sentencing range is 3 to 5 years. The presumptive term of imprisonment is 4 years. The maximum fine is $15,000.

4. Fourth Degree Crimes

The sentencing range can not exceed 18 months. The presumptive term of imprisonment is 9 months. The maximum fine is $10,000.

Conviction of a first or second degree crime requires a trial judge to impose a prison sentence. For a first-time offender convicted of a third degree crime that does not deal with certain enumerated offenses (i.e. theft of motor vehicle, eluding a police officer, etc.), the sentencing judge must begin his/her analysis with the presumption that the offender should not receive a prison term. This presumption of non-incarceration will be lost if a person has a prior conviction, including a disorderly person offense. 1 Even if the trial court concludes that the offender is entitled to the presumption of non-incarceration, the court can require a county jail term as a condition of probation, which is a judicially-created principle of law that seems to seriously conflict with the purpose of this statutory presumption.

To better understand these concepts, it may be well to proceed with an example that involves a conviction of a first- degree crime. In that situation, the sentencing judge must first presume that the offender will go to prison. Next, the sentencing judge will recognize that the minimum term of imprisonment is 10 years and the maximum term 20 years and absent some exceptional circumstances, he can not depart from this range. The court’s second presumption is to conclude that the sentence should be for a term of 15 years, the presumptive term.

Once these initial perimeters are fixed, the judge will then embark upon a balancing process where the so-called mitigating or good factors are weighed against the aggravating or bad factors. These factors are specifically defined by statute. Generally, they relate to the nature of the person, the nature of the crime and certain social considerations. If the trial court determines that the mitigating factors outweigh the aggravating factors, a sentence that is less than the presumptive term of 15 years can be imposed. On the other hand, if the aggravating factors outweigh the mitigating factors, the presumptive sentence of 15 years can be increased, but may not to exceed 20 years.

Finally, if you are convicted of an Offense under the Drug Statute, you will loose your drivers’s license for an extended term absent special circumstances.

Collateral Penalties Associated with a Drug Conviction (4 of 10)

• If on parole or probation there will probably be a revocation.
• Deportation is probable for a resident-alien or an illegal alien and that is so, even if the conviction is a disorderly persons offense.
• A driver’s license will be suspended for not less than 6 months nor more than 2 years.
• This may be avoided if a specific hardship can be shown and it can be established that there is no alternative means of transportation available.
• Apart from the fines authorized by the Drug Statute, there are other financial sanctions imposed, including drug enforcement penalties that can range from $3,000 for a first degree crime to $500 for a disorderly persons offense and numerous other related expenses.
• For certain defined offenses which have a serious profit element to them, there will be an anti-drug property penalty that can be $200,000, three times the street value of the CDS, or three times the profits received, which ever is greater.
• If the government can prove that an asset was purchased with drug-related money or if the source of the money in one’s bank accounts is drug-related, it will be seized. If a drug transaction occurred in or about one’s home or vehicle or if cash in-hand at the time of the arrest is drug-related, this property may also be subject to forfeiture.
• If a drug transaction occurred in or about leased property, the conviction will be reported to the landlord, who will have the statutory authority to evict you. For a person who lives in a government-sponsored housing project, there is a likelihood of being permanently barred from ever living in any other government-sponsored housing.
• A public employee will lose his/her employment if convicted of a drug- related crime.
• Job forfeiture is mandatory under the law. It may not occur, however, if the conviction is a disorderly person or petty disorderly persons offense and the offense has nothing to do with the workplace or if the prosecutor recommends a waiver of this statutory requirement and the trial judge approves the waiver. If this occurs, the employer may not later terminate the employee because of the drug crime conviction. The employer may still take administrative action against the employee, however.
• There will be a loss of federally funded scholarships or federal aid if convicted while in college or graduate school and that is so even if the conviction is only a possessory offense. The period of ineligibility is for one year for a first-time offender. A third-time offender will lose this assistance permanently.
• There may be a loss or limited access to federal benefits, including food stamps and Section 8 housing benefits. Eligibility for certain other federal grants, licenses and contracts may also be affected. These disqualifications may be waived, however, if you participate in a long-term drug rehabilitation program or cooperation with the government in the prosecution of other drug offenders.
• Upon conviction, there is the risk of being subjected to a civil lawsuit for any injuries sustained by reason of a person’s use of a CDS sold or given to him/her. The plaintiff, may be the user, a relative of the user, or a medical provider and the recovery can include economic damages (i.e. cost of medical treatment, loss of income, etc.), non-economic damages (i.e. pain and suffering, physical or emotional debilitation loss of companionship, etc.), punitive damages, attorney fees and costs of suit. This remedy applies to all drug dealers, even small ones.
• There will be a loss of the right to vote.
• There will be a loss of the right to sit on a federal jury.
• There may be a disqualification from accepting a position of responsibility in a labor organization or employee benefit plan.
• There will be a forfeiture of your passport if the drug-related offense occurred while crossing international boundaries.
• There may be a loss of the right to possess a firearm or denial of the opportunity to purchase one.
• There may be an undesired discharge from the military.
• A lawyer who has been convicted of distributing a CDS for profit will ordinarily be disbarred. If the offense is a possessory one, his/her license to practice law will be suspended for a period of time.
• A conviction can be used to enhance or increase a sentence for a subsequent conviction. It may also be used as an element of a crime in a later case.

An Analysis of Select Offenses (5 of 10)

A. Possession of a CDS

Possession of a Schedule I to IV CDS, which includes even a trace amount of less than .01 grams of cocaine, heroin and other drugs, is a third degree crime with a sentencing range of 3 to 5 years in prison and a fine up to $35,000.

Possession of marijuana, where the weight of the marijuana is more than fifty grams or 5 grams of hashish, is a crime of the fourth degree. The prison potential for this offense is 18 months and the maximum fine is $25,000. If the weight of the marijuana is less than 50 grams or less than 5 grams of hashish, the offense is a disorderly person’s offense. As explained earlier, stems, stalks and seeds count in the weighing process.

When the average citizen thinks about possessing an object, thoughts are ordinarily pointed to actual or manual possession, (viz. I have this book or paper in my hand; therefore, I possess it.) The law’s perception of possession is much broader. Actual possession is not required to be convicted under the Drug Statute.

Possession in the eyes of the law may be actual or constructive. Actual possession is when one has the illegal item in his/her hand or pocket. Constructive possession is established by showing knowledge of the identity of the item, where it is located and the intention and capacity to exercise control over it. If one is shown to be the only person to exert actual or constructive possession of an item, that person is in sole possession of that item. If more than one person can exert control over the item, possession is joint. One can be convicted of a possessory offense if he/she, either alone or with others, has actual or constructive possession of a CDS. All of these possessory concepts can be proven by circumstantial evidence.¹

You can not possess a CDS without knowing its character. Thus, you can not be found guilty of possession of a CDS if you are holding a suitcase but do not know that it contains a CDS. If, however, you know the suitcase has a CDS but do not know the precise nature of the CDS you can be convicted of a crime.

You can possess something without ever owning it. This concept was developed to cover events where a "mule" is used to transport drugs in a vehicle leased by another.

B. Possession etc. of Drug Paraphernalia

It is a crime of the fourth degree to distribute, possess with intent to distribute or advertise for sale drug paraphernalia. The penalty for a crime of this nature is a maximum term of imprisonment for 18 months and a fine of $10,000. If you deliver and or sell drug paraphernalia to someone under 18 years of age, you have committed a third degree offense, which requires a maximum jail term of 5 years and a fine of up to $15,000. It is a disorderly persons offense if you merely possess drug paraphernalia and in that case the maximum term of imprisonment is 6 months and the maximum fine is $1,000.

The term "drug paraphernalia" is broadly defined to include any equipment, product or material that can allow someone to plant, cultivate, harvest, manufacture, produce, prepare, process, package, ingest, inhale, or introduce into the body a CDS. The Drug Statute specifically lists over 10 separate items that can be considered drug paraphernalia including blenders, bowls, balloons, envelops, hypodermic needles, and all types of smoking devices.Some of the facts that can be used to determine whether an item is "drug paraphernalia" are: (1) statements by the owner; (2) the proximity of the object to a CDS; (3) the existence of residue in or on the object; (4) writing instructions relating to the use of the object; (5) advertisement that indicate the objects intended use; (6) the likelihood of using the object for a legitimate use; and, (7) expert witness testimony.

In order to prove that an individual distributed or intended to distribute drug paraphernalia the government must show that: (1) the object was drug paraphernalia; (2) that the individual distributed the object or intended to; (3) that the object was going to be used for some illicit purpose in violation of the Drug Statute; and, (4) that the individual knew that it was going to be used for that illicit purpose.The facts needed to prove that guilt where an individual is charged with mere possession of drug paraphernalia are: (1) that the object was drug paraphernalia; and, (2) that the individual used or possessed the object for an illicit purpose in violation of the drug statute.

The government and the courts are seriously committed to a strict enforcement of this section of the Drug Statute to the extent that a municipal ordinance conceived to allow a municipal social service organization to disseminate clean hypodermic needles to drug addicts was determined invalid because it violated the drug paraphernalia statute and that was so even though the statute seemed to authorize a government agency to distribute hypodermic syringes or needles.

C. Distribution of a CDS

It is against the law to manufacture, distribute or dispense a CDS, or to possess a CDS with the intent to distribute it, without an appropriate license (Distribution Offense). A conviction under this section of the Drug Statute will be influenced by the quantity, type of drug involved and the age of the participants involved in the transaction.

Conviction of distributing heroin or cocaine in the amount of five ounces or more, including dilutants or adulterants, will result in a sentence for a first degree crime, which has a sentencing range of 10 to 20 years. In addition, the court must impose a period of parole ineligibility from between one-third and one-half of the sentence and may impose a fine up to $500,000. On the other hand, the conviction is for distributing marijuana that is less than one ounce you will be guilty of a crime of the fourth degree.

To be convicted of a Distribution Offense, one does not have to sell the CDS for profit. It is sufficient, for example, to give a CDS as a gift, or share it with social guests. Even passing a marijuana cigarette to a friend may be considered a Distribution Offense.

It is also possible to be convicted of a Distribution Offense by possessing a CDS with the intent of distributing it later. The government will look to a whole host of factors to obtain a conviction for possession with the intent to distribute. Some of those factors include: (1) the weight of the CDS; (2) its purity; (3) the nature of the packaging (i.e. 2 or 3 vials of crack cocaine versus 300 vials); (4) the proximity of distribution paraphernalia to the CDS (i.e. scales, cutting-agents packaging, etc.); (5) one’s conduct; and, (6) the amount of money on the person.

The Drug Statute also covers the sale of, or possession with intent to sell, an imitation CDS. Thus, a person can be convicted under the "look-alike" section of the Drug Statute if he/she represents to another during a transaction, that the white powder in a container is cocaine, when it is only aspirin.

There are other serious consequences associated with a conviction for a drug-related offense under the drug statute. Some of those consequences follow in part 2: