New Jersey Section 2C:35B-13 – Ex parte prejudgment attachment order

New Jersey’s Controversial Ex Parte Prejudgment Attachment Law

New Jersey’s ex parte prejudgment attachment law, Section 2C:35B-13, allows prosecutors to seize assets of defendants before trial – without even notifying them. This controversial law aims to disrupt illegal drug operations by letting prosecutors freeze suspects’ bank accounts, seize property and more. But critics argue it violates due process rights and enables abuse. Let’s break down this complex law and the debate around it.

What is Ex Parte Prejudgment Attachment?

Ex parte simply means “by or for one party.” Prejudgment attachment is when assets are seized before trial. So ex parte prejudgment attachment allows prosecutors to get court orders to freeze assets of suspects, without notifying or hearing from the defense first.

The idea is to hit drug rings in the wallet, disrupting their operations. Supporters say it’s needed to stop suspects from hiding or spending illicit funds before trial. But others argue it undermines presumption of innocence and invites abuse.

How New Jersey’s Law Works

New Jersey’s ex parte attachment law was enacted in 1987, during the War on Drugs. It lets county prosecutors go before a judge and get an order to seize assets of suspects charged with certain drug crimes.

Police can then freeze bank accounts, place liens on property, and take other actions – before the suspect even knows what’s happening. There’s no notice or chance to challenge the order until after assets are seized.

The law applies to first- and second-degree drug distribution charges. It’s been used in cases involving tens of thousands up to millions of dollars. Supporters credit it for hobbling major traffickers. But critics say it ensnares small-time suspects too.

The Rationale Behind Ex Parte Seizures

Supporters like the NJ Attorney General’s Office argue ex parte attachment is needed to prevent suspects from hiding assets before trial. If given notice, they claim clever defendants would transfer funds or property and thwart justice.

They say striking fast preserves assets for fines and restitution if convicted. And disrupting finances curbs drug operations. Supporters also contend judges provide sufficient oversight against abuse.

Critics Argue It Goes Too Far

But critics like the ACLU counter that ex parte seizure denies due process. Defendants lose property rights without a chance to argue their side. Some compare it to medieval debtor’s prisons.

Critics also argue it hurts innocent owners of shared assets. And there’s little recourse if mistakes occur, since getting assets back can take months. Some say it pressures defendants to take bad plea deals.

There are also concerns it enables prosecutorial overreach. Critics point to cases like State v. Melendez, where a suspect’s bail money was seized, resulting in detention pretrial.

Reform Efforts and Legal Challenges

Some municipalities have pushed back. Philadelphia enacted reforms in 2018 after abuses, reducing seizures and adding judicial oversight.

In New Jersey, reform bills have stalled in the legislature. But legal challenges to asset seizure have seen some success. Courts have imposed constraints, like requiring prosecutors show probable cause linking assets to crimes. But the law remains intact.

Balancing Justice and Due Process

Asset seizure highlights a difficult balancing act. Stopping illegal commerce is important. But so are property rights and due process. Ex parte orders often spark controversy in this tension.

New Jersey’s law has passionate defenders and critics. But there seems room for compromise, like more transparency and judicial oversight. Reforms could retain the benefits while reducing risks of abuse. With care, we can strike a fairer balance between justice, due process and protecting rights.

What do you think? Does New Jersey’s approach go too far? Or is it a reasonable tool, with sufficient safeguards? This complex issue has good arguments on both sides. But hopefully we can find common ground in principles of justice, fairness and protecting the innocent. The debate continues.