New Jersey Section 2C:35-12 – Waiver of Mandatory Minimum and Extended Terms

New Jersey has some pretty strict mandatory minimum sentences for drug offenses. But there’s a little-known law called Section 2C:35-12 that gives judges the discretion to waive mandatory minimum terms in some cases. Let’s break it down so you and your clients understand when it could apply.

Overview of Mandatory Minimum Drug Sentences in NJ

First, a quick refresher. New Jersey adopted mandatory minimum sentences for certain drug crimes back in the 1980s and 90s, during the War on Drugs era. The idea was to get tough on drugs and deter people from selling.

Here’s a quick rundown of the main mandatory minimums:

• Distribution, possession with intent to distribute, or manufacturing 5 ounces or more of heroin, cocaine, meth, PCP, etc. – 3 years minimum
• Same for 1 ounce to 5 ounces – 2 years minimum
• Same for 1/2 ounce to 1 ounce – 1 year minimum
• Same for less than 1/2 ounce – 6 months minimum
• Distribution, possession with intent to distribute, or manufacturing 5 pounds or more of marijuana – 1 year minimum
• Same for 1 pound to 5 pounds of marijuana – 6 months minimum

You get the idea. New Jersey doesn’t mess around with mandatory minimums for drug distribution charges. Even small amounts can trigger multi-year prison terms.

What is Section 2C:35-12?

But there’s a ray of hope. Section 2C:35-12 of the New Jersey code provides an “escape valve” from mandatory minimum terms in some cases.

Specifically, it says that if three conditions are met, the court may waive or reduce the mandatory minimum term and impose a lesser sentence:

1. The defendant pled guilty
2. The prosecutor agrees to the waiver/reduction
3. Imposing the mandatory minimum would not serve the interests of justice

That third prong is key – it gives the judge discretion to depart from the mandatory minimum if they feel it would be unjust.

When Can This Law Be Used?

So when might 2C:35-12 come into play? Here are some examples from real cases:

• First-time, low-level offenses – For a defendant with no record charged with a small amount, a multi-year mandatory could be excessive. Judges have waived minimums for “mules” caught with an ounce or less.
• Nonviolent offenders – Those who don’t commit violence or use weapons during drug sales are sometimes good candidates for a waiver. Judges see the injustice in lumping them with violent traffickers.
• Disproportionate impact – Mandatory minimums have a disproportionate impact on minorities. Judges have cited this disparity in waiving minimums for black and Hispanic defendants.
• Peripheral involvement – Those with peripheral involvement like lookouts, drivers, etc. may benefit from a waiver since they weren’t central players.
• Cooperation – Defendants who cooperate with the prosecution by testifying or providing substantial assistance may be rewarded with a waiver.
• Old priors triggering enhancement – If a small amount triggers a mandatory minimum based on old priors, a waiver may be appropriate.
• Changes in law – With marijuana legalization, old marijuana distribution charges can seem less serious today. Some judges have waived mandatory minimums on outdated marijuana offenses.
• Personal circumstances – Factors like a defendant’s background, education, family ties, mental health issues, drug addiction, etc. may warrant a waiver in the interests of justice.

How Is a 2C:35-12 Waiver Requested and Granted?

If a waiver seems appropriate, here is the process:

• The defense attorney files a motion requesting a waiver of the mandatory minimum term under 2C:35-12. This usually occurs during plea negotiations.
• The motion describes why imposing the mandatory minimum would be an injustice – highlighting mitigating factors about the defendant or offense. Supporting documents like letters of support may be attached.
• The prosecutor must consent to the waiver request as part of the plea deal. Their agreement is required.
• At sentencing, the judge reviews the motion and makes a decision. If satisfied a waiver is justified, the judge issues an order waiving the mandatory minimum term and imposing a lesser sentence.
• The judge must state their reasons on the record explaining why the interests of justice call for a waiver. Their discretion is not absolute.
• Appellate courts can review waiver decisions for abuse of discretion, but they afford substantial deference to trial judges. Reversals are rare.

What’s the Bottom Line?

While mandatory minimums are never ideal, Section 2C:35-12 provides an avenue for relief in appropriate cases. Defense lawyers should examine the facts for mitigating factors and be aggressive in requesting waivers. Prosecutors should use discretion in consenting to waivers where injustice would result. And judges should not hesitate to grant waivers when the interests of justice require an exception to the mandatory minimum terms.

With smart use by all parties, 2C:35-12 allows some discretion and proportionality in sentencing for drug offenses. It’s an important safety valve that can literally make the difference between months and years behind bars.