(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 21, 1997 -- Decided February 19, 1998
GARIBALDI, J., writing for a unanimous Court.
At issue before the Court is whether the Attorney General's Plea-Bargaining Guidelines
(Guidelines) are adequate to satisfy the separation of powers doctrine, as enunciated in State v, Vasquez, and
to meet the statutory goals of uniformity in sentencing.
Under N.J.S.A. 2C:35-12 (Section 12) of the Comprehensive Drug Reform Act of 1987 (CDRA), a
prosecutor may, through a negotiated plea agreement or post-conviction agreement with the defendant, waive
the mandatory minimum sentence specified for any offense under the Act. To satisfy constitutional
requirements of the separation of powers doctrine, the Court in Vasquez held that the prosecutorial
discretion under Section 12 must be subject to judicial review for arbitrary and capricious action. To further
that review, it was held that prosecutors must adhere to written guidelines governing plea offers and state on
the record their reasons for waiving or not waiving the mandatory minimum in any given case.
In response to Vasquez, the Attorney General in 1992 promulgated plea agreement guidelines (the
1992 Guidelines), which were amended by the Attorney General's 1997 Supplemental Directive and then
again amended by the Uniformity Directive in 1998 (Uniformity Directive). The essential provisions of the
Guidelines remain the same: while prescribing statewide minimum plea offers, the Guidelines also direct
each County Prosecutor's Office to adopt its own written plea agreement policy that may include standard
plea offers that are more stringent than the statewide minimums provided by the Attorney General.
Christopher Brimage was indicted in Somerset County under the CDRA for possession of a
controlled dangerous substance with intent to distribute; possession of a controlled dangerous substance with
intent to distribute within 1000 feet of school property; and possession of a controlled dangerous substance.
All were third degree offenses. In exchange for Brimage's guilty plea, the Somerset County Prosecutor's
Office offered to recommend the presumptive sentence for a third degree crime - four years imprisonment
plus the mandatory three-year period of parole ineligibility for the school zone offense. Brimage accepted
the plea agreement and pleaded guilty to all counts of the indictment, reserving the right to challenge the
validity of the Guidelines and the applicability of the mandatory three-year parole disqualifier to his case.
Brimage's motion for waiver of the mandatory minimum sentence was denied and he was sentenced to four
years imprisonment with a three-year parole disqualifier in accordance with the prosecutor's
recommendation. Brimage's sentence was affirmed on appeal.
Brimage petitioned the Supreme Court for certification, asserting that the Guidelines have resulted
in variant plea-bargaining policies among the counties and have failed to channel prosecutorial discretion
adequately under Section 12, resulting in unjustifiable intercounty disparity in sentencing. The Court granted
Brimage's petition.
HELD: The Attorney General's Plea-Bargaining Guidelines, which authorize intercounty disparity, are
inadequate to satisfy the separation of powers doctrine, as enunciated in State v. Vasquez, and to
meet the statutory goals of uniformity in sentencing. Within ninety days, the Attorney General must
promulgate new plea offer guidelines that all counties must follow.
1. N.J.S.A. 2C:35-7 (Section 7) of the CDRA requires a mandatory minimum custodial sentence of not less
than three years for conviction of the possession of a controlled dangerous substance with intent to distribute
within 1000 feet of school property. Section 12 of the CDRA provides for the waiver of that mandatory
minimum sentence. The Section 12 waiver provision: provides incentive for defendants to cooperate with law
enforcement agencies; and encourages plea bargaining, which reduces the backlog in the State's
overburdened judicial system. (pp. 7-10)
2. As a result of the atypical shift of the sentencing power from the judiciary to the prosecutor, Section 12
has been the subject of various constitutional challenges on separation of powers grounds. The
Vasquez/Lagares line of cases have held that judicial review of prosecutorial decisions through uniform
written guidelines was necessary not only to meet the requirements of the separation of powers doctrine, but
also to comport with the statutory goal of increasing uniformity in sentencing. Despite specific provisions in
the 1992 Guidelines, which governed at the time of Brimage's plea, Section II.4 directs each county
prosecutor's office to adopt and implement its own written policy governing plea and post-conviction
agreements, using the Guidelines as a model, and suggests that the counties may also promulgate their own
"standardized plea offers for typical cases and offenders." By its very language, Section 4 permits different
counties to adopt disparate and varying plea offer policies and the intercounty disparity created by the
Guidelines is evidenced in the actual policies that have been adopted throughout the jurisdictions. (pp. 10-18)
3. The 1997 Supplemental Directive also fails to limit the discretion authorized by Section II.4 and, thus,
maintains the resulting intercounty disparity. The Uniformity Directive, issued in 1998 in response to the
Court's holding in State v. Gerns, raises the base minimum plea offer for a school zone offense, but does no
more to promote uniformity in plea agreement policies. Despite the attempts to address disparity, Section
II.4 of the 1992 Guidelines remains in effect and continues to permit varying plea policies among the
counties. (pp. 18-23)
4. Disparate sentencing fails to comport with the Legislature's intent in enacting the Code of Criminal
Justice (Code) and the CDRA that there be sentencing uniformity. The intercounty disparity authorized by
the Attorney General's Guidelines, both before and after their amendment, violates the goals of uniformity in
sentencing. The Guidelines not only fail on statutory grounds, but also threaten the balance between
prosecutorial and judicial discretion that is required under Vasquez. The Guidelines fail to appropriately
channel prosecutorial discretion, thus leading to arbitrary and unreviewable differences between different
localities. To meet the requirements of the Vasquez line of cases, the plea agreement Guidelines for Section
12 of the CDRA must be consistent throughout the State; prosecutors must be guided by specific, universal
standards in their waiver of mandatory minimum sentences under the CDRA. (pp. 23-29)
5. Differences in available county resources and varying caseload and backlog situations are legitimate
factors that prosecutors may consider in deciding whether or not to waive a mandatory minimum sentence
under Section 12. Any flexibility on the basis of resources or local differences must be provided for and
explicitly detailed within uniform, statewide guidelines. (pp. 29-30)
6. The Attorney General is ordered to review and promulgate, within ninety days, new plea offer Guidelines
that all counties must follow. Provisions that specifically encourage intercounty disparity must be eliminated.
The Guidelines should specify permissible ranges of plea offers for particular crimes and should be more
explicit regarding permissible bases for upward and downward departures. The Attorney General may
provide for differences in treatment among various offenders based on specific factors of flexibility among
the counties. The individual characteristics of the crime and the defendant must be considered. To permit
effective judicial review, prosecutors must state on the record their reasons for choosing whether or not to
waive the mandatory minimum period of parole ineligibility specified in the statute. The reasons for a
prosecutor's departure from the Guidelines must be clearly stated on the record. As amended, the
Guidelines will meet statutory and separation of powers concerns as well as rational basis requirements for
any equal protection challenge. (pp. 30-32)
7. The Court's ruling is to be applied prospectively, except with respect to this case and all cases presently
on direct appeal. In this case, Brimage's sentence should be vacated because of the impermissible
intercounty disparity in plea offer policies. Brimage has the option of vacating his plea or renegotiating his
plea. If he chooses to renegotiate, his plea should be determined under the Guidelines as they stood at the
time of his sentencing. (pp. 32-34)
Judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI'S opinion.
SUPREME COURT OF NEW JERSEY
A-
34 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER BRIMAGE,
Defendant-Appellant.
Argued October 21, 1997 -- Decided February 19, 1998
On certification to the Superior Court,
Appellate Division.
Stephen A. Caruso, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney).
Paul H. Heinzel, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
We are again presented with issues relating to Section 12 of
the Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to
36A-1 (hereinafter “CDRA”). Under N.J.S.A. 2C:35-12 (“Section
12"), a prosecutor may, through a negotiated plea agreement or
post-conviction agreement with a defendant, waive the mandatory
minimum sentence specified for any offense under the CDRA. To
satisfy the constitutional requirements of the separation of
powers doctrine, N.J. Const. art. III, ¶ 1, this Court in State
v. Vasquez held that prosecutorial discretion under Section 12
must be subject to judicial review for arbitrary and capricious
action.
129 N.J. 189, 195-96 (1992). To further that review,
the Court held that prosecutors must adhere to written guidelines
governing plea offers and state on the record their reasons for
waiving or not waiving the parole disqualifier in any given case.
Ibid.
In response to that holding, the Attorney General
promulgated plea agreement guidelines. See Directive
Implementing Guidelines Governing Plea-Bargaining and
Discretionary Decisions in Drug Prosecutions Involving Mandatory
Terms, from Robert J. Del Tufo, Attorney General, to the
Director, Division of Criminal Justice and All County Prosecutors
(Sept. 15, 1992) (hereinafter “Guidelines” or "1992
Guidelines"). Those Guidelines were subsequently amended by the
Attorney General's 1997 Supplemental Directive and then were
again amended by the Uniformity Directive in 1998; however, the
essential provisions of the Guidelines remain the same. See
Attorney General's Supplemental Directive For Prosecuting Cases
Under the Comprehensive Drug Reform Act, from Peter Verniero,
Attorney General, to All County Prosecutors (January 6, 1997)
(hereinafter "Supplemental Directive"); Attorney General
Directive To Enhance Uniformity in Sentencing Under the
Comprehensive Drug Reform Act (January 15, 1998) (hereinafter
"Uniformity Directive"). Although the Guidelines prescribe
statewide minimum plea offers, they also direct each County
Prosecutor's Office to adopt its own written plea agreement
policy, which may include standard plea offers that are more
stringent than the statewide minimums provided by the Attorney
General. Id. §§ 3-4.
Defendant asserts, therefore, that the Guidelines have
resulted in variant plea-bargaining policies among the counties.
According to defendant, the Guidelines fail to channel
prosecutorial discretion adequately under Section 12 and instead
result in unjustifiable intercounty disparity in sentencing.
More specifically, he argues that his sentence of four years with
the presumptive statutory requirement of three years parole
ineligibility should have been vacated because if he had
committed the same offense in some other counties he would have
received a lesser sentence.
We must determine whether the Attorney General's Plea-Bargaining Guidelines are adequate to satisfy the separation of
powers doctrine, as enunciated in Vasquez, supra, and to meet the
statutory goals of uniformity in sentencing.
On May 12, 1995, the Franklin Township Police, armed with a search warrant, conducted a search of the Brimage residence. According to defendant's statements at the plea hearing, during the search defendant turned over to the police eighteen bags of cocaine totaling about six grams. The police arrested defendant
and several other individuals who were present at the time.
Defendant stated at the plea hearing that he had purchased the
cocaine in New Brunswick and intended to resell it in Franklin
Township. Defendant's residence was within 1000 feet of Franklin
Township High School.
In September 1995, defendant was indicted under the CDRA for
possession of a controlled dangerous substance with intent to
distribute, contrary to N.J.S.A. 2C:35-5a(1), b(3); possession of
a controlled dangerous substance with intent to distribute within
1000 feet of school property, contrary to N.J.S.A. 2C:35-7; and
possession of a controlled dangerous substance, contrary to
2C:35-10a(1), all third degree offenses. Four other individuals,
including at least two family members, were also charged in the
last count.
According to the Presentence Report, defendant was twenty at
the time of arrest and living in his grandparents' home with his
grandparents, mother, and siblings. Defendant had not previously
been arrested for an indictable offense, but he had three prior
juvenile adjudications, the last when he was fourteen years old.
The Somerset County Prosecutor's Office offered, in exchange
for defendant's guilty plea, to recommend the presumptive
sentence for a third degree crime - four years incarceration
plus the mandatory three-year period of parole ineligibility
specified in N.J.S.A. 2C:35-7 for the school zone offense. The
prosecutor proffered the following reasons for not waiving the
parole ineligibility term of N.J.S.A. 2C:35-7: the proofs
available to sustain a conviction of defendant were very strong,
including defendant's taped confession that he intended to sell
cocaine for profit; defendant did not offer to cooperate in any
other drug-related investigations; and the Somerset County
Prosecutor's Office had sufficient resources to litigate this
matter, unlike various other counties that were plagued with a
lack of resources or with case management problems.
Defendant moved for additional discovery from the State,
requesting a copy of the applicable written guidelines governing
plea offers for school zone offenses adopted by Somerset County.
The State responded that the County, rather than promulgating its
own guidelines, had adopted the Guidelines promulgated by the
Attorney General. The State further asserted that that adoption
satisfied the requirement that each county adopt a written plea
agreement policy. In view of the State's response, the trial
court declared defendant's application for discovery moot.
Defendant then accepted the prosecutor's original plea agreement
offer and pled guilty to all counts in the indictment, although
he reserved the right to challenge the validity of the Guidelines
and the applicability of the mandatory three-year parole
disqualifier to his case. The court accepted defendant's guilty
plea.
In March 1996, the court conducted a hearing on defendant's
motion for waiver of the mandatory minimum sentence. Defendant
argued that the standard plea offer required by the Attorney
General's Guidelines for a school zone offense was the minimum
offer stated therein - probation conditioned on 364 days in
county jail - and that the prosecutor acted arbitrarily and
capriciously by not making that offer to defendant. Defendant
also maintained that the disparity in plea offers among the
various counties based on the Guidelines was unjustifiable. The
State, however, argued that the standard plea offer under the
Guidelines included the statutory mandatory period of parole
ineligibility and that statewide uniformity in such matters was
not required. Finding that nonwaiver of the mandatory parole
disqualifier was standard policy in Somerset County for school
zone cases and that the Guidelines' lesser plea offer was only
applicable when the prosecutor in his discretion decided to waive
that disqualifier, the court denied defendant's motion.
In the same proceeding, the court held a sentencing hearing.
Observing that defendant had been adjudicated a delinquent on
three separate occasions, that he had previously been on
probation, and that he was still committing crimes, the court
found four aggravating factors against defendant: the risk of
committing another offense, N.J.S.A. 2C:44-1a(3); defendant's
prior criminal record as a juvenile, N.J.S.A. 2C:44-1a(6); the
need to deter defendant and other drug dealers, N.J.S.A. 2C:44-1a(9); and imposition of a fine or penalty without a prison term
would be seen as just another cost of doing business, N.J.S.A.
2C:44-1a(11). The court found only one mitigating factor, the
negative influence of older family members on defendant, N.J.S.A.
2C:43-1b(13). After merging counts one and three into count two,
the court sentenced defendant to four years imprisonment with
three years of parole ineligibility, in accordance with the
prosecutor's recommendation. The court also imposed the
requisite fines and a six-month driver's license suspension.
Defendant filed a notice of appeal to the Appellate
Division, which was heard by an Excessive Sentencing Panel. In a
brief, three-sentence order, the Panel affirmed defendant's
sentence, finding that on the record the sentence was not
manifestly excessive, unduly punitive, nor an abuse of
discretion. The Panel, however, declined to address the
disparity issue within the confines of a single case. We granted
defendant's petition for certification.
149 N.J. 33 (1997).
less than three years for those convicted of dispensing or
possessing with the intent to distribute drugs within a school
zone, and no less than one year for those convicted of the same
offense with less than one ounce of marijuana. Upon signing this
legislation, Governor Thomas H. Kean emphasized the strong
posture of the statute, stating: “This is a declaration of war
and, in this war, we will take prisoners.” Office of the
Governor, News Release (April 15, 1987). That firm stance
comports with the Legislature's intention, as stated in its
Declaration of Policy and Legislative Findings for the CDRA, to
“provide for the strict punishment, deterrence and incapacitation
of the most culpable and dangerous drug offenders.” N.J.S.A.
2C:35-1.1(c); accord State v. Shaw,
131 N.J. 1, 8 (1993);
Vasquez, supra, 129 N.J. at 197. To foster that policy, the
Legislature included in the CDRA mandatory periods of parole
ineligibility for various crimes. See, e.g., N.J.S.A. 2C:35-3
(providing twenty-five year parole bar for leaders of narcotics
trafficking network); N.J.S.A. 2C:35-6 (ordering minimum five
year parole bar for person convicted of employing juveniles in
drug distribution scheme); N.J.S.A. 2C:35-7 (including strict
parole bar for school zone offenses).
Despite the non-discretionary nature of N.J.S.A. 2C:35-7,
that section, like other mandatory parole bar provisions in the
CDRA, contemplates exceptions to its rule as provided by N.J.S.A.
2C:35-12 ("Section 12"). Section 12 allows a prosecutor to waive
the period of parole ineligibility imposed under Section 7 as
part of a plea or post-conviction agreement with a defendant.
Because mandatory sentences usually do not permit judicial or
prosecutorial discretion, the unique Section 7 and Section 12
sentencing scheme has been characterized as “a hybrid, combining
mandatory and discretionary features and delegating sentencing
authority to both the courts and the prosecutors.” Vasquez,
supra, 129 N.J. at 199.
The primary purpose of the Section 12 waiver provision is to
provide an incentive for defendants, especially lower and middle
level drug offenders, to cooperate with law enforcement agencies
in the war against drugs. State v. Bridges,
131 N.J. 402, 408-09
(1993); Vasquez, supra, 129 N.J. at 204; Assembly Judiciary
Committee, Commentary to the Comprehensive Drug Reform Act, at 26
(Nov. 23, 1987) (explaining that “[o]ne of the key objectives of
this section and the act is to provide persons engaged in illicit
drug activities with strong incentives to cooperate with law
enforcement to overcome the perceived and substantial risks
associated with turning State's evidence and exposing their
superiors, suppliers and affiliates"). Another goal of N.J.S.A.
2C:35-12, as enunciated in the Department of Law and Public
Safety's report on the CDRA, is to encourage plea bargaining so
as not to plague the courts with too many defendants who, without
any incentive to plead guilty, demand jury trials and thus
overburden and backlog the system. Department of Law and Public
Safety, Division of Criminal Justice, A Law Enforcement Response
to Certain Criticisms of the Comprehensive Drug Reform Act, at
22-23, 25-26 (Sept. 17, 1990). That view of Section 12 is
consistent with one of the Legislature's stated goals in enacting
the CDRA, namely, the minimization of pretrial delay and the
prompt disposition of criminal charges. N.J.S.A. 2C:35-1.1.
To achieve the Legislature's specific goal of encouraging
cooperation and turning State's evidence and to prevent
sentencing courts from undermining the effectiveness of
prosecutors' strategies, N.J.S.A. 2C:35-12 requires the
sentencing court to enforce all agreements reached by the
prosecutor and a defendant under that section and prohibits the
court from imposing a lesser term of imprisonment than that
specified in the agreement. N.J.S.A. 2C:35-12; Bridges, supra,
131 N.J. at 410; State v. Stewart,
136 N.J. 174, 182 (1994).
That shift in sentencing power from the judiciary to the
prosecutor is uncommon. As stated by the Court in Vasquez,
supra:
The delegation of sentencing power to the
prosecutor is itself exceptional. The
delegation of sentencing power to modify
statutory sentencing standards is highly
unusual. The power in the prosecutor
directly or indirectly to mandate a minimum
prison term is extraordinary.
[129 N.J. at 204 (citations omitted).]
powers grounds. See, e.g., State v. Gerns,
145 N.J. 216, 231-32
(1996); Vasquez, supra, 129 N.J. at 195-96; State v. Peters,
129 N.J. 210, 218 (1992).
We first considered the interaction of Section 7 and Section
12 in the companion cases of Vasquez, supra,
129 N.J. 189, and
Peters, supra,
129 N.J. 210. In Vasquez, supra, although
ultimately ruling on the applicability of the mandatory parole
ineligibility term to resentencing, this Court addressed for the
first time the constitutional validity of Section 12. 129 N.J.
at 192, 195. In that case, we upheld the transfer of sentencing
authority under Section 12, but stated that judicial oversight
was “mandated to protect against arbitrary and capricious
prosecutorial decisions.” Id. at 196. To enable judicial
review, we required prosecutors to state on the record their
reasons for waiving or not waiving the parole disqualifier in any
given case and to promulgate written guidelines governing their
exercise of discretion. Id. at 195-96. The Court held that, if
those conditions were met, the statute would withstand scrutiny
under the separation of powers doctrine, and only those
defendants who showed “clearly and convincingly that the exercise
of discretion was arbitrary and capricious would be entitled to
relief.” Vasquez, supra, 129 N.J. at 196. We maintained those
same requirements in Peters, supra, 129 N.J. at 218.
In reaching our decision in Vasquez, supra, 129 N.J. at 195,
we relied on our previous decision in State v. Lagares,
127 N.J. 20 (1992). Lagares, supra, involved the constitutionality of the
prosecutor's power to invoke the extended sentence requirement
under N.J.S.A. 2C:43-6f. 127 N.J. at 23. Although N.J.S.A.
2C:43-6f requires a court to impose an extended term with a
period of parole ineligibility for repeat drug offenders, the
provision only takes effect upon the application of the
prosecutor. Ibid. Furthermore, once the prosecutor decides to
apply for an extended sentence, the sentencing judge has no
discretion to reject the application. Id. at 31. According to
the Court, the “infirmity in Section 6f is the prosecutor's sole
discretion to select, without standards and without being subject
to the court's review, which defendants will receive an increased
sentence or enjoy favorable treatment.” Id. at 28. Therefore, to
pass constitutional scrutiny, the Court required that
prosecutorial decisions under Section 6f be subject to judicial
review for arbitrariness, that prosecutors state on the record
their reasons for seeking an extended sentence, and that
“guidelines be adopted to assist prosecutorial decision-making.”
Id. at 28-32; Vasquez, supra, 129 N.J. at 195.
Lagares based that decision, in turn, on previous decisions
of this Court in State v. Warren,
115 N.J. 433 (1989), State v.
Leonardis,
73 N.J. 360 (1977) (Leonardis II), State v. Leonardis,
71 N.J. 85 (1976) (Leonardis I), and Monks v. New Jersey State
Parole Board,
58 N.J. 238 (1971). l27 N.J. at 28-31. We held in
Leonardis I, supra, that prosecutorial discretion in dismissing
charges against certain defendants and admitting them into pre-trial intervention (PTI) programs must be subject to uniform
written guidelines and judicial review of the prosecutors'
written statement of reasons. 71 N.J. at 119, 121; Lagares,
supra, 127 N.J. at 28-29.
Similarly, we held in Monks, supra,
that the Parole Board had to provide a statement of reasons to
inmates who had been denied parole in order to meet the needs of
of simple fairness. 58 N.J. at 246; Lagares, supra, 127 N.J. at
29-30. This Court stated in Leonardis II, supra, that although
deference should be given to prosecutors' determinations, “the
prosecutor is not immune from the ban against arbitrariness in
governmental decision-making.” 73 N.J. at 377, 381; Lagares,
supra, 127 N.J. at 29. Furthermore, in Warren, supra, we
prohibited the use of “negotiated sentence” plea agreements
because of the importance of judicial responsibility in
sentencing. 115 N.J. at 449; Lagares, supra, 127 N.J. at 30.
Underlying the Court's decisions in the guidelines cases was
also a concern for uniformity in sentencing. The Leonardis I
Court identified the disparity allowed between counties as one of
two major deficiencies of Rule 3:28, the rule governing PTI, and
suggested that that disparity had constitutional implications.
Leonardis I, supra, 7l N.J. at 120-21. The Lagares Court
emphasized the statutory basis for the goal of uniformity in
sentencing, finding it to be the overarching purpose of the Code
of Criminal Justice. 127 N.J. at 31. The Court concluded:
"Without standards the prosecutorial decision-making process
remains unguided, and the danger of uneven application of
enhanced sentences increases significantly. Such results upset
the principal goal of the Code of Criminal Justice to insure
sentencing uniformity." Ibid. (citing State v. Roth,
95 N.J. 334, 365 (1984)). In Warren, supra, we stressed that
prosecutorial influence on the judicial role could impede the
goals of sentencing uniformity. 115 N.J. at 449. We stated that
“[i]ndividual prosecutors with distinctive perceptions of the
gravity of particular offenses and offenders, and responsive to a
very different constituency from that of the judiciary, would add
undue variability, inevitable inconsistency, and greater
disparity to the sentencing process.” Ibid. Finally, in
Vasquez, supra, we affirmed the importance of uniformity in the
plea agreement process. 129 N.J. at 196. We stated that the
promulgation of standards would “prevent the legislative goal of
uniformity in sentencing from being undermined by unreviewable
prosecutorial discretion.” Ibid.
In summary, the Vasquez/Lagares line of cases held that
judicial review of prosecutorial decisions through uniform
written guidelines was necessary not only to meet the
requirements of the separation of powers doctrine, but also to
comport with the statutory goal of increasing uniformity in
sentencing.
In response to this Court's ruling in Vasquez, supra, on September 15, 1992 the Attorney General promulgated plea
agreement guidelines for charges brought under the Comprehensive
Drug Reform Act.See footnote 1 Those original 1992 Guidelines governed at
the time of defendant's plea.
Recognizing the various goals of the Legislature in enacting
the CDRA as well as the intentions of the Court in Vasquez,
supra, the Introduction to the 1992 Guidelines states:
In order to satisfy the principal goal of the
Legislature to ensure a uniform, consistent and
predictable sentence for a given offense, these
decisions require that the prosecutorial decision-making process must be guided by uniform standards that
channel the exercise of discretion and reduce the
danger of uneven application. The formulation of
uniform standards is required by Directive 9.1 of the
Attorney General's Statewide Action Plan for Narcotics
Enforcement (1988), which called for development of
statewide guidelines governing prosecutorial charging
discretion and plea negotiations.
[Guidelines, supra, § I (citations omitted)
(emphasis added).]
The Introduction also emphasizes that the purpose of Section 12
is to provide incentives to defendants to cooperate with the
State and recognizes that "swiftness" of punishment is also an
important goal. Ibid.
The Guidelines continue by asserting that the “specified
mandatory term of imprisonment and minimum term of parole
ineligibility” should be treated as norms, and that prosecutors
“should exercise caution and reluctance in deciding whether to
waive the minimum sentence or parole ineligibility.” Id. § II.1. More specifically, in Section II.3 of those Guidelines, the Attorney General requires that all plea agreements for a CDRA offense impose on defendants a mandatory minimum term of incarceration, except where the agreement is or was necessary to obtain cooperation of "substantial value" to the State. Id. § II.3. That term must be a state prison term, except in the case of a school zone offense under N.J.S.A. 2C:35-7. Ibid. The 1992 version of the Guidelines provides that the “minimum term of imprisonment for a school zone offense shall include the imposition of 364 days incarceration in a county jail as a condition of probation,” unless the violation involves distributing, dispensing, or possessing with intent to distribute less than one ounce of marijuana in a school zone, in which case the prison term may be waived entirely. Ibid. The 1992 Guidelines are also specific in their mandate of a three-year term of imprisonment without eligibility for parole for defendants who distribute, or possess with intent to distribute, a controlled dangerous substance while actually on school property, or one year in a case involving less than one ounce of marijuana, unless there are compelling reasons to justify a lesser term. Id. § II.6. In Section II.9, the Guidelines specify various requirements for cooperation agreements. Id. § II.7, 9. Finally, in Section II.5, the Guidelines outline criteria for deciding whether to approve or disapprove a plea
agreement that incorporates an upward or downward departure from
any plea agreement policy. Id. § II.5.
Despite those specific provisions in the Guidelines, Section
II.4 directs each county prosecutor's office to adopt and
implement its own written policy governing plea and post-conviction agreements, using the Guidelines as a model, and
suggests that the counties may also promulgate their own
“standardized plea offers for typical cases and offenders.” Id.
§ II.4. The Guidelines state that the counties, in formulating
those plea offers, may consider certain factors such as the
nature and extent of the drug distribution and use problem, the
number and type of drug arrests in the jurisdiction, and the
backlog of drug and non-drug cases in the courts. Ibid. They
should also consider the seriousness of the offense, the role of
the actor in the crime, the amount of time that has passed since
the offense was committed, whether the defendant has previously
been convicted of an offense, and the amount of resources already
expended on the particular case. Ibid. Finally, Section II.4
specifically states that “[n]othing contained in these guidelines
shall preclude a prosecutor from adopting more stringent policies
or standardized plea offers consistent with the needs, resources
and enforcement priorities of each county.” Ibid. Thus, by its
very language, Section II.4 of the Guidelines permits different
counties to adopt disparate and varying plea offer policies.
Not only does consideration of the numerous factors listed in
Section II.4 assure different results in localities with
differing conditions, but the Guidelines themselves direct each
county to adopt their own individual standards and procedures.
Although the Introduction to the Guidelines recognizes the need
to “guard against sentencing disparity,” the Guidelines actually
generated such disparity. Id. § I. The intercounty
diaparity created by the Guidelines is evidenced in the actual
policies that have been adopted throughout the jurisdictions.
The affidavit of Robert A. Gaynor, an Assistant Deputy Public
Defender in Somerset County, estimated, as of March 1996, the
plea offers that a person in defendant's situation would have
received in different counties, based on each county's plea
policies as they existed at that time. Although the standard
plea offer in Gloucester and Hudson Counties would have been
probation with 364 days in jail, the pre-indictment offer in
Mercer and Salem Counties was one year without parole.
Meanwhile, the plea in Camden and Cumberland Counties would have
been three years flat and three to five years flat, respectively.
Even the counties that purported, at that time, to have adopted
the Attorney General's Guidelines without modification differed
in their potential offers. Ocean and Bergen Counties provided in
1996 for probation conditioned on 364 days in jail; Sussex in
1996 required three years imprisonment, one without parole; and
Somerset, the county in this case, provided four years, three
without parole.
Subsequent to Brimage's plea, the Attorney General issued additional guidelines in its 1997 Supplemental Directive; however, the Supplemental Directive fails to limit the discretion authorized by Section II.4 and thus maintains the resulting intercounty disparity. The Supplemental Directive was developed in response to Governor Christine Todd Whitman's Drug Enforcement, Education and Awareness Program, which required the Attorney General to issue new, revised guidelines concerning prosecutorial charging, case disposition, and plea bargaining policies to ensure that the CDRA is aggressively and uniformly enforced in court. Governor's Drug Enforcement, Education and Awareness Program, at iv (Oct. 8, 1996). The Supplemental Directive mandates, among other requirements, that each county reduce its plea policies to writing and review the policies at least once a year; that downward departures shall not be permitted except as provided in the Attorney General's Guidelines; that both downward and upward departures and all cooperation agreements shall be memorialized in writing; that the prosecutor shall seek imposition of the appropriate Drug Enforcement and Demand Reduction penalties and driver's license suspensions pursuant to N.J.S.A. 2C:35-15-16; and that offenders may be sentenced to treatment in lieu of imprisonment only if they meet a long list of explicit conditions. Supplemental Directive, supra, § III. 1-4, 6(a)-(b), 9(a). However, the Supplemental Directive declares that the previous Guidelines, except as expressly provided, are “hereby reaffirmed,” and “shall
remain in full force and effect.” Id. § II. Thus, while the
Directive states that the Guidelines are “intended and shall
hereinafter be interpreted to establish drug prosecution policies
that must be followed by every county prosecutor's office,” the
Directive nevertheless permits each county to adopt their own
standards pursuant to Section II.4. Id. § II.
Just as occurred under the 1992 Guidelines, the discretion
allowed by the Supplemental Directive also led to actual
disparity in the plea offer policies adopted by various counties.
As of May 1997, for school zone cases not occurring on school
property, some counties provided a list of standard plea offers
based on the nature of defendant's criminal history and the
amount or nature of drugs involved in the crime (Mercer and
Middlesex Counties), another established two standard plea
offers, one for all cases involving less than one ounce of
marijuana and one for all other cases (Morris County), and still
others adopted policies reiterating the language in Section II.3
of the Attorney General's 1992 Guidelines, which states that the
minimum term of imprisonment shall be probation conditioned on
364 days in county jail (Ocean and Atlantic Counties).
On January 15, 1998, the Attorney General's office issued its most recent amendments to the plea agreement Guidelines. Those amendments resulted from this Court's mandate in State v. Gerns. 145 N.J. 216 (1996).
In Gerns, supra, this Court heard arguments on the issue of
impermissible sentencing disparities under the Attorney General's
Guidelines. Id. at 231. Although specifically addressing the
question of whether a defendant who signs a plea agreement
calling for “cooperation” in State investigations can satisfy
that agreement by good faith efforts that produce nothing of
value to the State, the Court noted the significance of the
defendant's disparity claims:
[T]he arguments and the statistical data
proffered in support of the claim of
sentencing disparity are impressive. . . .
[T]he indicia of grave sentencing disparities
are sufficient to engender a concern over the
potential for sentencing disparity. That
concern must be addressed in light of the
Code's overriding commitment to assuring
uniformity in criminal sentencing . . . .
Furthermore, in remanding on the primary issue in the case and in anticipation of the defendant's resentencing, the Court urged the prosecutor and the trial court “in the exercise of their respective discretion to be especially mindful of the problem that is posed by the potential of disparity.” Id. at 232. However, the Court chose not to resolve the disparity issue in the context of that case and instead directed the Attorney General to undertake a review of statewide sentencing practices and experience under the Guidelines and to furnish the Court with the results of that review. Id. at 232. The Attorney General promulgated the Uniformity Directive in response to that command. Uniformity Directive, supra, § I.
The Uniformity Directive acknowledges that sentencing
disparity is reflected in the "range of sentences contemplated by
standardized plea offers that have been promulgated by the
twenty-one county prosecutors." Ibid. The Directive also
recognizes that, in some counties, defendants charged with a
third degree school zone offense are routinely sentenced to an
eighteen month period of parole ineligibility, while in other
counties, similarly situated individuals receive 364 days in
county jail as a condition of probation. Ibid. Furthermore,
when parole laws and early release practices are taken into
account, that latter sentence may be reduced to as little as
ninety days of incarceration, which some counties even allow
defendants to serve solely on nights or weekends. Ibid.
The Uniformity Directive notes that parole laws account for
much of the disparity highlighted in Gerns, supra. However, the
Directive also argues that, because of differences in resources
and in the nature of the drug problem in different counties, it
is "neither possible nor desirable to achieve absolute statewide
uniformity in plea negotiation practices." Ibid. As a result,
the Uniformity Directive, unanimously approved by the County
Prosecutors' Association, seeks to "restrict the range of
permissible sentencing outcomes," but only by establishing a new
base minimum plea offer. Ibid.
The Directive provides that Section II.3 of the 1992
Guidelines is superseded to the extent that it conflicts with
Section III of the current Directive. Id. § II. Whereas Section
II.3 states that the minimum period of parole ineligibility for a
school zone offense shall be probation conditioned on 364 days in
jail, the new Section III requires that the minimum parole term
for an offense under N.J.S.A. 2C:35-7 shall be one year. Id. §
III. Similarly, for violations involving less than one ounce of
marijuana, Section II.3 of the 1992 Guidelines provides that a
prison term may be waived entirely, while Section III of the
Uniformity Directive states that the standardized plea offer may
not be less than 364 days of incarceration as a condition of
probation. Ibid.
Although the Uniformity Directive succeeds in raising the
base minimum plea offer for a school zone offense, the Directive
does no more to promote uniformity in plea agreement policies.
Section III clearly states: "Nothing in this Directive shall be
construed to preclude a county prosecutor from establishing and
implementing a plea policy that provides standardized offers
. . .
with a period of parole ineligibility greater than one
year." Id. § III. Furthermore, the Directive maintains that
"[e]xcept as expressly provided, . . . all of the provisions of
the previously-issued Attorney General plea directives . . .
shall remain in full force and effect." Id. § IV. Therefore,
despite the Directive's attempts to address disparity, Section
II.4 of the 1992 Guidelines remains in effect and the Directive
continues to allow for varying plea policies among the counties.
In the Vasquez/Lagares line of cases, we noted that
disparate sentencing fails to comport with the Legislature's
intent, in enacting the Code of Criminal Justice, N.J.S.A. 2C:1-1
to 98-4 and the CDRA, that there be uniformity in sentencing.
Sentencing uniformity is one of the fundamental goals of the
Code of Criminal Justice ("Code"). The Legislature lists among
the purposes of the sentencing provisions of the Code the intent
to “safeguard offenders against excessive, disproportionate or
arbitrary punishment,” and to “give fair warning of the nature of
the sentences that may be imposed on conviction of an offense.”
N.J.S.A. 2C:1-2. State v. Roth, the first case to address in
detail the standards that guide sentencing under the Code,
stated, “[i]t is our view that the Code established an entirely
new sentencing process. It displaced standards established under
prior decisional law, created presumptive terms of imprisonment,
and limited the discretionary power of sentencing courts.”
95 N.J. 334, 340 (1984). The Court continued, “[t]he central theme
of the Code's sentencing reforms is the replacement of the
unfettered sentencing discretion of prior law with a structured
discretion designed to foster less arbitrary and more equal
sentences.” Id. at 345. The Court emphasized that the
“paramount goal of sentencing reform was greater uniformity.”
Id. at 369.
In State v. Hodge, the Court repeated these sentiments.
95 N.J. 369 (1984). The Court in that case stated that “there can
be no justice without a predictable degree of uniformity in
sentencing. We must not forget that the driving force behind
sentence reform was the tragic disparity in sentences inflicted
upon defendants under the old model.” Hodge, supra, 95 N.J. at
379. Governor Brendan Byrne, upon signing the new law, also
commented, “[t]he Criminal Code is intended to make sentencing
more definitive . . . . It is designed to reduce the possibility
of one judge giving a stiff sentence and another a light sentence
for similar crimes.” Roth, supra, 95 N.J. at 354 (citing
Statement of Gov. Byrne, (Aug. 10, 1978)).
To meet those goals, the Code offers specific sentencing
instruction to judges, including detailed guidelines and rules.
In particular, the Code provides for a range of permissible
sentences for each degree of crime, N.J.S.A. 2C:43-6(a); certain
mandatory minimum punishments, such as under the Graves Act,
N.J.S.A. 2C:43-6(c); the imposition of a mandatory extended term
of imprisonment for certain crimes within specified permissible
ranges, N.J.S.A. 2C:43-7(a); a presumption of imprisonment for
all first and second degree offenses, N.J.S.A. 2C:44-1(d); a list
of specific aggravating and mitigating factors to be considered
in sentencing, N.J.S.A. 2C:44-1(a),(b); a list of authorized
sentencing dispositions, N.J.S.A. 2C:43-2; and a list of the
grounds upon which a defendant must be sentenced to a mandatory
extended term, N.J.S.A. 2C:44-3. While the Code still affords
discretion to individual judges in deciding among different
factors and choosing a sentence within a permissible range, that
discretion is guided by specific standards which apply on a
uniform, statewide basis.
Consistent with this statutory scheme, this Court has
repeatedly "acknowledged the dominance, if not paramountcy, of
uniformity as one of the Code's premier sentencing goals." State
v. Pillot,
115 N.J. 558, 571-72 (1989) (citing State v. Jarbath,
114 N.J. 394, 400 (1989); Hodge, supra, 95 N.J. at 379; State v.
Hartye,
105 N.J. 411, 417 (1987)); see also State v. Roach,
146 N.J 208, 231-32, cert. denied,
117 S.Ct 540,
136 L.Ed.2d 424
(1996) (invalidating defendant's sentence where a co-defendant
charged with the same or similar crime received slightly less
onerous terms); State v. Hicks,
54 N.J. 390 (1969) (same).
The goals of sentencing uniformity are also evident in the
CDRA. In the Declaration of Policy for the CDRA, the Legislature
recognized the need for “fair and certain punishment” and that
the imposition of a “uniform, consistent and predictable sentence
for a given offense is an essential prerequisite to any rational
deterrent scheme.” N.J.S.A. 2C:35-1.1(a),(c). To guard against
sentencing disparity, the Legislature, in enacting the CDRA, had
made “sweeping revisions” to the predecessor law contained in the
Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 to -53.
Bridges, supra, 131 N.J. at 407; see also Department of Law and
Public Safety, Division of Criminal Justice, A Law Enforcement
Response to Certain Criticisms of the Comprehensive Drug Reform
Act, at 12 (Sept. 17, 1990) (“The act itself was an explicit
legislative response to sentencing practices under the
predecessor drug law.”). Historically, vast sentencing
discretion in the State's drug laws “[had] fostered unjustified
differences in the way similarly situated defendants [were]
treated.” Governor Thomas H. Kean, Blueprint For a Drug-Free New
Jersey, at 24 (Oct. 1986). Therefore, the Legislature believed
that the CDRA's consolidation of drug offenses and provisions
into the penal code, which established degrees of crimes and
definitive sentencing ranges and presumptive terms for each
degree, would “limit courts' sentencing discretion, and [would]
ensure more uniform, consistent and predictable sentencing
practices.” Bridges, supra, 131 N.J. at 408 (citing Assembly
Judiciary Committee, Statement to Assembly Bill No. 3270 (Dec.
18, 1986)). The mandatory minimums and presumptive terms that
exist throughout the CDRA, and in particular in N.J.S.A. 2C:35-7
for school zone offenses, were a result of that reform.
By permitting each county to adopt its own standard plea offers and policies, neither the former nor the current Guidelines serve as the universal, equitable prototype that the Vasquez line of cases had in mind. Although the guidelines adopted within each county may avoid arbitrariness with respect to decision-making among individual prosecutors, and while we concede that “some disparity in sentencing is inevitable in the administration of criminal justice,” Roach, supra, 146 N.J. at
234, the formalization of disparity from county to county is
clearly impermissible. See State v. Press,
278 N.J. Super. 589,
603 (App. Div.) (Stern, J., dissenting), certif. denied,
140 N.J. 329 (1995), appeal dismissed,
144 N.J. 373 (1996). The
intercounty disparity authorized by the Attorney General's
Guidelines, both before and after its amendment, violates the
goals of uniformity in sentencing and, thus, not only fails on
statutory grounds, but also threatens the balance between
prosecutorial and judicial discretion that is required under
Vasquez, supra.
129 N.J. 189. The Guidelines fail to
appropriately channel prosecutorial discretion, thus leading to
arbitrary and unreviewable differences between different
localities. As stated by the dissent in Press, supra, the
“premise on which the constitutionality of the sentencing scheme
is based falls when the scheme itself promotes or formalizes the
potential arbitrariness by permitting deviation from county to
county.” Press, supra, 278 N.J. Super. at 603 (Stern, J.,
dissenting).
Accordingly, to meet the requirements of the Vasquez line of
cases, the plea agreement guidelines for N.J.S.A. 2C:35-12 must
be consistent throughout the State. To “promote uniformity and
provide a means for prosecutors to avoid arbitrary or abusive
exercises of discretionary power” under the extended sentencing
provisions of N.J.S.A. 2C:43-6(f), the Court in Lagares, supra,
ordered the Attorney General to adopt guidelines “for use
throughout the state.” 127 N.J. at 32. In Leonardis I, supra,
we stated that the future utility of PTI was “dependent upon its
uniform implementation on a statewide basis” and we rejected the
exclusionary criteria adopted by one particular county. 71 N.J.
at 112. Similarly, in Town Tobacconist v. Kimmelman, we held
that the constitutionality of the Drug Paraphernalia Act was
strengthened because of the specific, uniform, statewide
guidelines that had been issued by the Attorney General.
94 N.J. 85 (1993). The same statewide application of the Attorney
General's Guidelines is required here. Just as with the
sentencing guidelines under the Code, which guide judicial
sentencing discretion on a statewide basis, prosecutors must be
guided by specific, universal standards in their waiver of
mandatory minimum sentences under the CDRA.
legislative goal “would not be an abuse of power.” 131 N.J. at
11. Consistent with that authority, we believe that differences
in available county resources as well as varying backlog and
caseload situations are legitimate factors that prosecutors may
consider in deciding whether or not to waive a mandatory minimum
sentence under N.J.S.A. 2C:35-12. See Uniformity Directive,
supra, § I ("County prosecutors . . . must have some discretion
in setting enforcement priorities and prosecution policies to
reflect local concerns and enforcement opportunities.").
However, before a prosecutor may take any such factors into
account, those factors must be explicitly set forth in and
authorized by the Attorney General's Guidelines, just as the
requirements for cooperation agreements are precisely and
distinctly enumerated. Although we agree with the Press majority
and the Attorney General's Uniformity Directive that flexibility
among the prosecutors of different counties may sometimes be
necessary, that does not justify the adoption of different
guidelines in every county in contravention of the goals of
uniformity and the Vasquez line of cases. Any flexibility on the
basis of resources or local differences must be provided for and
explicitly detailed within uniform, statewide guidelines.
choose to continue certain specific provisions of the old
Guidelines or may choose to adopt entirely new guidelines,
including new minimum and standard sentences, he must eliminate
those provisions which specifically encourage intercounty
disparity. The Guidelines should specify permissible ranges of
plea offers for particular crimes and should be more explicit
regarding permissible bases for upward and downward departures.
The Attorney General may, if he chooses, provide for differences
in treatment among various offenders based on specific factors of
flexibility among the counties, such as resources or backlog, in
certain circumstances. As in all plea offers, the individual
characteristics of the crime and of the defendant, such as
whether the defendant is a first or second time offender, must be
considered. Finally, to permit effective judicial review,
prosecutors must state on the record their reasons for choosing
to waive or not to waive the mandatory minimum period of parole
ineligibility specified in the statute. Additionally, for proper
judicial review, if a prosecutor departs from the Guidelines, the
reasons for such departure must be clearly stated on the record.
The Guidelines as amended will not only satisfy statutory
and separation of powers concerns, but will also meet rational
basis requirements for any equal protection challenge. See
Leonardis I, supra, 71 N.J. at 120-21; Lagares, supra, 127 N.J.
at 33. Not only is there a clear rational basis for mandating
uniform guidelines, as evidenced by the wealth of authority on
this point, but there is also a rational basis for permitting a
certain degree of flexibility within those Guidelines, based on
the differing resources and needs of the various counties,
provided those factors are explicitly detailed by the Attorney
General.
Finally, we hold that our ruling today is prospective, except with respect to this case and all cases on direct appeal. Although retrospectivity is the traditional rule, sound policy reasons may persuade a court to accord a judicial decision prospective application. Coons v. American Honda Motor Co., 96 N.J. 419, 425 (1984) ("Coons II"). Those reasons are: (1) justifiable reliance by the parties and the community as a whole on prior decisions, (2) a determination that the purpose of the new rule will not be advanced by retroactive application, and (3) a potentially adverse effect retrospectivity may have on the administration of justice. Id. at 426. How the Court applies those factors depends on the Court's view of what is just and fair and consonant with public policy. Id. at 425.
In this case, the first and third factors are the most significant. Application of those components mandates that today's ruling be applied prospectively. The State, the counties, and numerous defendants have relied on the previous versions of the Attorney General's Guidelines. Moreover, although it is impossible to forecast the exact number of defendants who might be affected if this ruling were applied retroactively, estimates are that more than a thousand defendants
are sentenced annually under Section 12. Accordingly, such an
application would require the review of numerous sentences,
resulting in a great number of sentencing hearings, and would
impose a very substantial burden on the court system and the
administration of justice.
We have, however, chosen to apply a limited retroactive
effect to this case and those cases pending final appeal on the
date this opinion is issued. The cases pending final appeal will
have the same options, discussed below, as defendant in this
case.
We agree that defendant's sentence should be vacated because of the impermissible intercounty disparity in plea offer
policies. Defendant has the option of vacating his plea or renegotiating his plea. If he chooses the latter option, his plea shall be determined under the Attorney General's Guidelines as they stood at the time of his sentencing. If the State's plea offer is not in conformity with those Guidelines, the prosecutor must state on the record his or her