New Jersey’s attorney general on Monday effectively ended the use of mandatory minimum sentences for nonviolent drug offenses.
Attorney General Gurbir Grewal’s action, issued as a directive to prosecutors, should help most of those impacted by mandatory sentences, most of whom are Black or Hispanic, and could shortly result in the release of close to 2,000 prisoners, his office said.
But Grewal’s action came as Gov. Phil Murphy conditionally vetoed legislation that would eliminate such penalties, rejecting the bill over a provision that would also waive minimum sentences for public corruption cases.
While welcomed by advocates, they argued Grewal’s directive is only a temporary solution that could be reversed by a future attorney general and urged a statutory end to minimum sentences. But a permanent solution may be a long time coming.
While mandatory minimums still exist in state law, Grewal’s directive essentially ended them for nonviolent drug crimes. The attorney general told prosecutors to waive seeking a minimum sentence for these offenses. His directive also allows anyone currently still incarcerated because of a mandatory period of parole ineligibility to ask for the rescission of the minimum, effectively making the person eligible for parole immediately. This provision could impact as many as 2,000 people currently incarcerated.
‘Disproportionately affecting young men of color’
“New Jerseyans still remain behind bars for unnecessarily long drug sentences. This outdated policy is hurting our residents, and it’s disproportionately affecting our young men of color. We can wait no longer,” Grewal said in announcing the directive.
Alexander Shalom of the ACLU-NJ said Grewal has the power to order the change due to the way the drug sentencing rules were written. He cannot, however, do the same for those convicted of nonviolent property crimes — whom the sentencing commission also recommended no longer be subjected to mandatory terms — or for political corruption offenses. Those two groups comprise a “very small percentage” of nonviolent offenders serving required minimum sentences, he said.
Advocates were both disappointed by Murphy’s conditional veto and thrilled by Grewal’s action. They remain concerned that the directive does not enshrine the end of mandatory minimums in law, and urged Murphy and lawmakers to work together to do that.
“Our state falls short by failing to enact legislation that can promote justice for thousands of New Jerseyans, disproportionately Black and brown people,” said Amol Sinha, executive director of the ACLU-NJ. “In order to make sure people can escape some of the injustices of mandatory minimums, we strongly urge the Legislature to approve the governor’s conditional veto … And, we urge our elected officials to put politics aside, and work together to end all mandatory minimums in New Jersey.”
A standoff between Murphy, lawmakers
Murphy’s veto of S-3456 appears to have provoked a standoff, with two senators introducing a new bill identical to the one the governor vetoed just hours after his veto announcement. So after Murphy had told lawmakers that lightening the sentences of public officials convicted of misconduct is unacceptable, senators told the governor to reconsider his opposition.
The impetus for the bill was a November 2019 report from the New Jersey Criminal Sentencing and Disposition Commission recommending an end to mandatory minimum sentences for nonviolent drug and property crimes. Requirements that individuals convicted of certain crimes serve at least a minimum amount of time before parole eligibility are responsible for much of the racial disparity at the state’s prisons, where the incarceration rate for Blacks compared to whites is among the highest in the nation.
In July, the Assembly passed a bill embodying the commission’s recommendation. But it was amended by the Senate Judiciary Committee to eliminate mandatory minimum sentences for official misconduct charges against public officials at the request of Sen. Nicholas Sacco (D-Hudson), whose girlfriend’s son is facing charges for having an alleged no-show job in North Bergen, where Sacco is the mayor.
Among his reasons for conditionally vetoing the bill, Murphy said it would not provide relief for those currently incarcerated. But he called out the provision that eliminates mandatory minimum sentences for official misconduct for public corruption offenses as going “far beyond the recommendations” of the sentencing commission.
“I am particularly troubled by the notion that this bill would eliminate mandatory prison time for elected officials who abuse their office for their own benefit, such as those who take bribes,” Murphy said. He invoked recent cases of police officers killing people and the trial of former Minneapolis officer Derek Chauvin in last spring’s death of George Floyd, which is now in the hands of the jury. “New Jersey’s robust penalties against public corruption offenses, such as official misconduct, are often the most powerful tools that our prosecutors have to hold bad actors in law enforcement accountable. At a time when our nation is finally reckoning with accountability for abusive policing practices, weakening the penalties used to address police misconduct would send exactly the wrong message.”
But legislators doubled down. Sens. Sandra Cunningham (D-Hudson) and Nicholas Scutari (D-Union) introduced the same bill Murphy vetoed without any changes as S-3658. Rather than introducing a new bill, lawmakers could try to override the veto, but these instances are rare, particularly when the governor and lawmakers are of the same party. And based on the support for the original bill in each house, there would not be enough votes to override Murphy’s veto.
“We want to give the governor the opportunity to fully appreciate the importance of this reform and reconsider his action,” Cunningham said. “This is the same bill but we hope the governor will act differently when it gets to his desk.”
It’s unlikely governor would change his mind
It’s hard to imagine what would get Murphy to change his mind, particularly when some activists oppose eliminating mandatory minimums for public corruption.
Rev. Charles Boyer, founder of the organization Salvation and Social Justice, said Murphy’s decision “was not an easy one, but it was the right one” and called on lawmakers to approve his conditional veto.
“The attorney general’s directive can bring the immediate relief necessary while the Legislature removes the audacious privilege it inserted in this bill,” Boyer said. “In a time where we have seen political figures, law enforcement, and elected officials abuse their power, we need to keep tools in place to check them. The power given to public officials necessitates higher accountability than average citizens. To whom much is given much is required.”
But Senate President Steve Sweeney (D-Gloucester), who has disagreed with Murphy on a number of issues, weighed in and signaled that he, too, has dug in his heels in support of the senators’ efforts.
“The directive covers only six offenses, while the reform legislation introduced today by Senator Sandra Cunningham and Senator Nick Scutari encompasses 29 nonviolent crimes,” Sweeney said. “True justice is served when an individual’s punishment matches the circumstances of the crime, and that is best determined by judges. New Jersey is one of only two states that doesn’t trust the judiciary to determine fair sentences for official misconduct charges. It is time to include that reform along with all other nonviolent offenses.”