New Jersey’s Strict Laws Against Weapons of Mass Destruction

New Jersey has some of the strictest laws in the country prohibiting the development, production, transfer, receipt, stockpiling, retention, ownership, possession or use of chemical weapons, biological agents, nuclear devices, and radiological devices. These laws are intended to prevent acts of terrorism and protect public safety. While the penalties are severe, there are legal defenses available. This article will summarize the key provisions of N.J. Stat. Section 2C:38-3, analyze its implications, and discuss potential defenses.

What the Law Says

Section 2C:38-3 of New Jersey’s criminal code deals with “Producing or possessing chemical weapons, biological agents or nuclear or radiological devices.” Under this law, it is a serious crime to intentionally develop, produce, transfer, receive, own, possess or use chemical weapons, biological agents, nuclear devices, or radiological devices outside of proper legal authorization. Let’s break it down:

• Chemical Weapons – This refers to toxic agents like nerve gas, blister agents, choking agents, blood agents, incapacitating agents, riot control agents, or herbicide agents intended for use in warfare or terrorism.
• Biological Agents – This means microorganisms, viruses, infectious substances, or biological products intended to cause death, disease, or other biological malfunction in a human, animal, plant or other living organism.
• Nuclear or Radiological Devices – This refers to any nuclear explosive device, radioactive material dispersal device, or radiation-emitting device intended to cause destruction, damage, or injury.
• The law prohibits not just possession, but also developing, producing, transferring, receiving, stockpiling, retaining, or using these materials outside of authorized contexts like research, medicine, etc.
• Mere possession is enough – the law does not require an intent to use the weapons or devices for terrorism or other crimes.
• Violations are extremely serious crimes. Depending on the circumstances, they can be first-degree or second-degree crimes under New Jersey law, punishable by 10-20 years or 5-10 years in prison, respectively.

The law does carve out exceptions for legitimate uses like medical research, pharmaceutical development, and other lawful purposes. But outside of those authorized contexts, developing or possessing chemical weapons, biological agents for harm, or nuclear/radiological devices can lead to very severe criminal penalties.

Implications of the Law

The obvious goal of Section 2C:38-3 is to prevent and punish the unlawful development, stockpiling, and use of weapons of mass destruction that could be used in acts of terrorism or other crimes. Following the 9/11 attacks and anthrax mailings, many states enacted laws to crack down on terrorist WMD capabilities.

However, civil liberties advocates have raised concerns about the potential breadth of such laws. Could overzealous prosecutors charge well-intentioned researchers studying pathogens? Could harmless radioactive antiques be considered banned “radiological devices”? The law tries to avoid this by requiring intentional misconduct and including exceptions for legitimate purposes. But critics argue the language is still too vague in places.

The law also raises concerns about discrimination. Critics point out that these types of laws could be used to target and disproportionately punish certain minority groups through racial profiling. There is also concern that the severe penalties could be applied unevenly. These are valid issues to consider regarding the law’s real-world application.

Overall though, Section 2C:38-3 seems to be a reasonable measure to prevent and deter unlawful WMD capabilities. The law aims to stop genuinely dangerous weapons from getting into the hands of criminals or terrorists who would misuse them. But as with any broad security law, care must be taken to implement it in a fair and non-discriminatory manner.

Possible Defenses

For persons charged under Section 2C:38-3, there are defenses that may apply in certain circumstances:

• Lack of intent – If the prohibited items came into your possession unwittingly or without your knowledge, then you may lack the requisite intent to be convicted.
• Research/pharmaceuticals – If you possessed restricted agents or materials for legitimate scientific research, medical, or pharmaceutical purposes, the statutory exceptions apply.
• No harm intended – If you possessed devices for innocent reasons like historical interest, without any intent to use them unlawfully, this defense may negate the intent required under the law.
• Entrapment – If you were improperly induced or coerced by police into acquiring prohibited devices, you may have an entrapment defense.
• Constitutional violations – If evidence was obtained via illegal searches, or your confession was coerced, such constitutional violations may provide a defense.
• Mistake of fact – If you mistakenly believed the materials were not chemical weapons or banned devices, this may defeat the intent requirement.

The availability of defenses always depends on the specific facts and circumstances of each case. If you have been charged under Section 2C:38-3, it is critical to retain an experienced New Jersey criminal defense attorney to protect your rights. An attorney can carefully examine the evidence and determine if any viable defenses may apply to your situation.

Section 2C:38-3 imposes very harsh penalties for developing or possessing weapons of mass destruction without proper authorization. While critics rightly worry about potential misuse, the law aims to serve the important public safety purpose of restricting access to extremely dangerous weapons. Persons charged under the statute have legal defenses available in appropriate circumstances. But overall, Section 2C:38-3 sends a strong message – New Jersey takes WMD crimes very seriously.