New Jersey’s Drug Offender Restraining Order Act: Giving Cops Discretion on Seeking Restraints

New Jersey’s Drug Offender Restraining Order Act, passed in 1999, aims to create “drug-free zones” around schools and public housing by banning convicted drug offenders from entering those areas. But the law also gives cops leeway in deciding when to actually seek those restraining orders. This article will break down N.J.S.A. 2C:35-5.10 and what it means for defendants and law enforcement.

What is the Drug Offender Restraining Order Act?

First, some background. The Drug Offender Restraining Order Act (DORO) lets courts bar convicted drug offenders from hanging around schools, public parks, and public housing complexes. The idea is pretty simple — stop dealers from peddling their wares near places kids congregate.

Here’s how it works:

• Someone gets busted selling drugs near a school or other “drug-free zone.”
• The cops apply for a restraining order against the defendant as part of the criminal case.
• If convicted, the defendant gets slapped with a court order banning them from the drug-free zone for up to 5 years. Violating the order leads to more criminal charges.

When it was passed, DORO was controversial. Civil liberties groups argued it unfairly punished people twice for the same crime. But supporters said it gave law enforcement a new tool to clean up drug hot spots.

What does N.J.S.A. 2C:35-5.10 do?

While DORO creates these “drug offender restraining orders,” N.J.S.A. 2C:35-5.10 carves out an exception. It gives police and prosecutors the option to not seek a restraining order in certain cases.

Specifically, the law says officers can take a pass on restraints against defendants charged after:

• A routine traffic stop, or
• Using public transportation

Cops can also decide not to pursue orders when:

• Banning someone from an area would cause “serious injustice”, or
• The defendant has a “legitimate need” to go there.

Why give police discretion?

Allowing police discretion serves a couple purposes.

For one, it acts as a safety valve. DORO’s critics worried its broad scope would lead to unfair outcomes. Giving law enforcement flexibility aims to avoid scenarios where restraining orders produce absurd results.

Say someone takes the bus through a school zone and gets arrested with a small amount of pot. Banning that person from public transit would make little sense. The discretion provision helps avoid such scenarios.

It also acknowledges policing realities. Cops simply may not seek orders in cases where they seem pointless. Perhaps the defendant actually lives in the prohibited zone, or has family there.

Rather than forcing officers to get orders that will just get thrown out later, 2C:35-5.10 recognizes their judgement. If restraints seem unwise or futile, police need not pursue them.

What are the limits on discretion?

While 2C:35-5.10 gives law enforcement discretion, it’s not unlimited. Police and prosecutors can decide against seeking orders, but they can’t simply ignore the law altogether.

If someone is busted dealing drugs near a school, the presumption is they’ll face a restraining order. Police would need to articulate clear reasons for not seeking one.

Officers also can’t establish “blanket policies” declining to enforce DORO. They must evaluate each case based on the specific circumstances and people involved.

Prosecutors likewise can waive seeking orders on a case-by-case basis. But their offices must still pursue restraints against dealers as a general rule.

Discretion also does not apply to the courts. Judges must issue restraining orders upon conviction; they can’t cite 2C:35-5.10 as grounds for declining.

How is the discretion provision used in practice?

In reality, law enforcement uses the discretionary authority sparingly. Prosecutors say they rarely see police choose not to seek restraining orders against dealers.

The exceptions mainly come up where defendants live near a school or park. Officers may forego restraints to avoid effectively evicting someone from their home.

Beyond that, cops and prosecutors say they pursue orders aggressively. That’s especially true in urban areas where turf battles between dealers are common. Restraining orders are a tool to disrupt those conflicts.

However, some civil liberties advocates argue discretion allows subtle racial biases to creep in. They claim police are more lenient on white suburban dealers, while pursuing orders rigidly against minorities. It’s difficult to prove definitively, but an issue to watch.

Takeaways

The key points to remember about N.J.S.A. 2C:35-5.10:

• It gives law enforcement discretion to not seek restraining orders under DORO.
• However, that discretion is limited, not a blank check.
• Police and prosecutors must still enforce the law; they can only grant exceptions case-by-case.
• In practice, cops rarely decline to pursue restraining orders against dealers.
• But the provision remains controversial among civil liberties groups.

Giving police flexibility aims to avoid absurd outcomes. But it also relies heavily on officer judgement in deciding when to show leniency. Reasonable minds can disagree on whether that’s sound policy.