New Jersey Section 2C:35A-4 – Calculation of Anti-Drug Profiteering Penalty

New Jersey has a law called the Anti-Drug Profiteering Act, which allows courts to impose additional monetary penalties on people convicted of certain drug crimes if those crimes were committed for profit. One section of this law, 2C:35A-4, deals specifically with how these monetary penalties are calculated.

Overview of Anti-Drug Profiteering Penalties

The purpose of anti-drug profiteering penalties is to hit major drug dealers in the wallet by making them pay fines equal to the money they made selling drugs. The penalties are imposed in addition to any other criminal penalties like jail time.

To impose these penalties, the prosecutor has to show it’s more likely than not that the defendant meets one of several criteria under 2C:35A-3. This includes being a leader of a drug trafficking network, distributing drugs as a major source of income, being a wholesale drug distributor, or selling drugs to children.

If one of those grounds is proven, then 2C:35A-4 sets how the amount of the penalty is calculated. The court can order the defendant to pay whichever is greater:

• 3 times the street value of the drugs involved
• 3 times the value of any profits or benefits from the drug crimes
• Up to $200,000 for first-degree drug distribution crimes
• Up to $100,000 for second-degree drug distribution crimes

So this law allows huge fines on top of any prison sentence if major drug dealing for profit is proven. Let’s look at how the penalty amounts are determined.

Calculating the Penalty Amount

Section 2C:35A-4 has detailed rules for calculating anti-drug profiteering penalties:

Street Value of Drugs

One way the penalty is calculated is based on the street value of the drugs involved. The court determines the total street value of all the drugs, then triples that number.

“Street value” means the amount the drugs could be sold for illegally, not their legal pharmacy price. The court can consider any drugs “reasonably believed to have been involved” based on the evidence, even amounts from uncharged deals or transactions outside New Jersey.

Profits and Benefits

Another way the penalty is calculated is based on profits and benefits from the drug crimes. The court determines the total value of any profits or benefits like money, property, services etc. that the defendant gained for themselves or others from the drug crimes. That number is then tripled.

This captures profits that may exceed the street value of the drugs. For example, if someone paid the defendant $500,000 to arrange a big cocaine shipment worth $200,000 street value, the profit value would be higher than the drug value.

Choosing the Greatest Amount

The court calculates the penalty using all three methods – street value, profits/benefits, and statutory maximums. Whichever number is greatest, that’s the amount of the anti-drug profiteering penalty imposed.

So this law allows huge fines by tripling illicit profits, in order to take the incentive out of drug dealing. Penalties in the hundreds of thousands of dollars are common when large quantities of drugs or big profits are involved.

Arguments Against Anti-Drug Profiteering Penalties

While these added fines may seem like a great way to punish wealthy drug kingpins, there are some arguments against anti-drug profiteering laws:

• They mostly affect low level dealers, not the big guys who insulate themselves. Street dealers take the fall while kingpins remain unknown.
• The fines can be excessive when based on the street value of drugs, which is often inflated. $50 of cocaine can be “worth” $500 on the street.
• Low income defendants can’t pay huge fines, so they end up serving more jail time. Wealthy kingpins can easily pay.
• The fines create an incentive for more criminal activity to pay them off.
• The standards of proof are low, allowing penalties in many cases without solid evidence of major profits.
• They contribute to mass incarceration and racial disparities. Fines lead to more jail time when unpaid.

So while anti-drug profiteering penalties seem justified in theory, there are good arguments that they are ineffective and unjust in practice. As with many drug war policies, they likely do more harm than good.

Defenses Against Profiteering Penalties

For defendants facing these penalties, some potential defenses include:

• The drugs were for personal use, not distribution.
• The amounts involved were small, for social sharing among friends, not major sales.
• Other people involved made the profits, not the defendant. They were just a courier or low-level seller.
• The estimated drug values or profits are inflated and exaggerated.
• The defendant is indigent and unable to pay large fines. Fines should be waived or reduced based on inability to pay.
• The penalty amounts to cruel and unusual punishment in violation of the 8th Amendment.

An experienced criminal defense lawyer can argue these defenses at the sentencing hearing to try to avoid or limit anti-drug profiteering penalties. While they can involve huge fines, there are often good arguments against imposing the maximum penalties.

Conclusion

New Jersey’s anti-drug profiteering law allows massive monetary penalties against drug dealers in addition to any criminal sentence. But despite the appeal of targeting wealthy kingpins, these fines likely do more harm than good in practice.

The complex rules in 2C:35A-4 give prosecutors broad power to seek inflated penalties that low level defendants can’t afford. And there are often good defenses against the most excessive fines. With smart advocacy, defense lawyers can frequently negotiate more reasonable anti-drug profiteering penalties for their clients.