New Jersey Section 2C:36-9 – Pending Cases

New Jersey Section 2C:36-9 – Pending Cases

New Jersey Statute 2C:36-9 deals with pending cases involving charges under the state’s drug paraphernalia laws. This statute was enacted in 1987 as part of the Comprehensive Drug Reform Act, which revised and supplemented parts of the New Jersey criminal code relating to controlled substances and drug paraphernalia.

Overview of 2C:36-9

The main purpose of 2C:36-9 is to specify how pending cases should be handled when the drug paraphernalia laws changed in 1987. Essentially, it provides that the new statutory provisions apply prospectively only, and do not affect cases pending prior to the effective date of the amendments.

The statute states:

“Notwithstanding any other provision of this act to the contrary, nothing in this act shall be construed to apply to any offense committed prior to the effective date of this act or to any prosecution for such an offense, and such prosecution shall be governed by the prior law, which is continued in effect for that purpose.”

So in plain language, 2C:36-9 means:

• The 1987 amendments to the drug paraphernalia laws only apply prospectively, to offenses committed after the changes took effect
• For pending cases based on offenses that occurred before the amendments, the prior version of the law still applies
• The old law remains in effect for the purpose of prosecuting pre-amendment offenses

This is a fairly standard savings clause for new legislation, intended to avoid problems with ex post facto laws and retroactive application of criminal statutes.

Background of 1987 Amendments

To understand the purpose behind 2C:36-9, it helps to know what changes were made to New Jersey’s drug paraphernalia laws in 1987.

Prior to 1987, the main drug paraphernalia statute was N.J.S.A. 24:21-47, enacted in 1980. This law prohibited the distribution and possession of drug paraphernalia under certain circumstances.

In 1987, as part of a broader overhaul of the state’s drug laws, the legislature repealed 24:21-47 and replaced it with a new chapter in the criminal code, Chapter 36 (“Drug Paraphernalia Defined; Determination”) .

Among other things, the 1987 legislation:

• Provided more detailed definitions of drug paraphernalia
• Added new offenses such as advertising paraphernalia and delivering it to minors
• Established factors for determining if an object is drug paraphernalia
• Increased penalties for some paraphernalia crimes
• Allowed seizure and forfeiture of paraphernalia in certain cases

So the 1987 amendments made significant substantive changes to New Jersey’s laws regulating drug paraphernalia. Section 2C:36-9 was included to clarify that those changes only apply prospectively.

Purpose and Effects of 2C:36-9

The main reason for including 2C:36-9 was likely to avoid issues with the constitutional prohibition against ex post facto laws. An ex post facto law is one that retroactively changes the legal consequences of acts already committed. This is prohibited by Article I, Section 10 of the U.S. Constitution and by many state constitutions as well.

By specifying that the 1987 drug paraphernalia amendments apply only prospectively, 2C:36-9 helps insulate those laws from potential ex post facto challenges. Defendants cannot claim the laws are unconstitutionally retroactive if the statute itself says they don’t apply to prior offenses.

2C:36-9 also serves to put prosecutors and defendants on notice about which law will apply. This prevents confusion about whether old or new paraphernalia laws control for pending cases based on pre-amendment offenses.

The effect is that two versions of the law were effectively in force after 1987 – the old 1980 version for pending cases, and the new 1987 version for future cases. This dual system continued until there were no more pending pre-amendment cases in the courts.

So in practice, 2C:36-9 provided for an orderly transition to the new drug paraphernalia laws without disrupting cases already in progress. This gave the courts time to resolve older cases under the familiar prior law.

Challenges to Retroactive Application

Although the legislature tried to avoid retroactivity issues with 2C:36-9, some defendants still challenged the application of the 1987 laws to offenses that occurred earlier.

In State v. Reed, the defendant claimed the new law couldn’t be applied to his possession of paraphernalia that occurred before the amendments took effect. But the court held that since the 1987 law was procedural rather than substantive, it could be applied retroactively without violating ex post facto principles.

A similar challenge was rejected in State v. Braun, where the court found applying new evidentiary rules retroactively did not prejudice the defendant.

So despite 2C:36-9, defendants still tried to argue the 1987 amendments couldn’t be applied retroactively. But the courts ultimately found no ex post facto issues with procedural changes like new evidentiary standards.

Current Status of Drug Paraphernalia Laws

Today, New Jersey’s drug paraphernalia laws are still contained in Chapter 36 of the criminal code, which has been updated several times since 1987. However, the main provisions still trace back to the original 1987 legislation.

For example, N.J.S.A 2C:36-1 currently provides:

“It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale, or otherwise introduce into the human body a controlled dangerous substance.”

This prohibition on possession and use is similar to the 1987 law, though penalties have been revised.

So while New Jersey’s drug paraphernalia statutes have evolved over 35+ years, Section 2C:36-9 remains in effect to govern the transition to the modern laws enacted back in 1987.

Sources:

https://law.justia.com/cases/new-jersey/appellate-division-published/1990/236-nj-super-577-0.html https://law.justia.com/cases/new-jersey/appellate-division-published/1994/275-nj-super-335-0.html