New Jersey Section 2C:36-8 – Severability

New Jersey’s Severability Clause for Drug Laws: Implications and Analysis

New Jersey’s comprehensive drug laws, found in Title 2C, Chapter 36 of the New Jersey Code, contain a severability clause in 2C:36-8. This provision states that if any part of the chapter is found to be invalid or unconstitutional, the remaining portions will still be valid and enforceable.

New Jersey’s Severability Clause for Drug Laws

New Jersey’s severability clause for drug laws is found in 2C:36-8. It states:

If any one or more sections, clauses, sentences or parts of this chapter shall for any reason be questioned in any court, and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provisions so held unconstitutional or invalid.

This clause clearly expresses the legislature’s intent for the drug laws to remain workable, even if certain portions are struck down. It aims to preserve the overall statutory scheme regulating controlled substances and illegal drug activities.

New Jersey’s severability provision also applies broadly to the “sections, clauses, sentences or parts” of Chapter 36. This shows the legislature recognized the complex, interwoven nature of drug statutes. By including a severability clause, lawmakers hoped to keep as much of the regulatory framework operational as possible.

Severability Clause in Action: State v. Ivory

The severability clause for New Jersey’s drug laws was applied in the 1979 case State v. Ivory. In this case, the New Jersey Superior Court considered the constitutionality of the state’s mandatory minimum sentencing for drug distribution near schools. At the time, the law imposed a mandatory 3-year minimum sentence for distributing drugs within 1,000 feet of school property.

The defendant challenged the mandatory sentencing, arguing it violated the separation of powers doctrine by limiting judicial discretion over sentencing. The court agreed the rigid mandatory minimum was unconstitutional. However, citing the severability clause, the judge struck down only the mandatory sentence provision, leaving the enhanced 1,000 foot drug-free zone intact.

Ivory demonstrates how New Jersey’s severability clause achieved its purpose. Instead of striking the entire drug-free school zone law, the court eliminated only the specific unconstitutional portion. The severability clause allowed the overall legislative intent of deterring drug sales near schools to remain.

Severability Clause Allows Flexibility and Evolution of Drug Laws

New Jersey’s severability provision for drug statutes promotes flexibility and gradual evolution of the laws over time. Without a severability clause, if one significant provision was found unconstitutional, it could bring down the entire statutory scheme. The legislature would then face the monumental task of re-writing all the drug laws at once.

However, with the severability clause, minor fixes can be made incrementally as needed. Specific problematic portions can be surgically removed, while leaving most regulations in place. This allows drug laws to adapt to changing societal views, emerging drug threats, and judicial feedback on constitutional rights.

Severability Allows Controversial Laws to Remain Partially Intact

Severability clauses also allow controversial laws opposed by some lawmakers to remain partially in effect. Without severability, politically divisive laws often face repeal if found partially unconstitutional. However, with a severability clause, the surviving portions of the law can remain operative.

For instance, many politicians and advocacy groups have called for repealing New Jersey’s entire drug-free school zone law based on penalizing addiction and disproportionate impact on minorities. But the severability clause has allowed the framework to stay active, despite objections and recognized flaws. Eliminating only the most objectionable components has enabled the law’s general drug deterrence purpose to continue near schools.

Critics Argue Severability Undermines Legislative Intent

Despite their utility, severability clauses also have critics. Some argue severability undermines the legislature’s intent when courts strike down significant provisions but uphold only a shell of the law. In reality, lawmakers may not have passed the attenuated remnant standing alone.

With New Jersey’s drug statutes, critics contend stripping unenforceable mandatory minimums guts the intended deterrent effect. They argue the weakened surviving laws do not reflect legislative goals, yet remain in place solely due to the severability clause.

Conclusion

New Jersey’s severability clause for drug laws serves the important purpose of preserving as much of the statutory scheme as constitutionally permissible. This provision allows incremental refinements over time, keeping most regulations operable even if certain components get invalidated. However, critics argue severability can undermine legislative intent by upholding only a shell of the original law. Overall, severability promotes flexibility and judicial restraint, but does not guarantee the surviving law will match lawmakers’ goals.