In State v. Brimage, 153 N.J. 1 (1998), the New Jersey Supreme Court was called upon to address the constitutionality of N.J.S.A. 2C:35-12, which the Court characterized as an “atypical” sentencing statute because it shifted sentencing power from the judiciary to the prosecutor. The Court held that to satisfy the constitutional requirements of the separation of powers doctrine, prosecutors must be guided by specific, universal standards in their waiver of mandatory minimum sentences under the Comprehensive Drug Reform Act. Because the then-existing plea negotiation guidelines were not adequate, the Court directed the Attorney General to issue new guidelines – now known as the “Brimage Guidelines” – to promote uniformity and to prevent arbitrariness. The new guidelines became effective on May 20, 1998.
Often times, defense attorneys negotiate plea agreements on behalf of their clients, but still reserve the opportunity to “argue for less” at the time of sentencing – and quite frequently judges agree and render lower sentences than those called for under the plea agreements. However, unlike with ordinary plea agreements, an agreement made under the “Brimage Guidelines” binds judges not to impose a lesser term than that to which the parties agree.
Therefore, the consequences of being charged with a drug offense that may subject you to sentencing under the “Brimage Guidelines” is serious. For example, if you are charged with a violation of 2C:35-5, Distribution/Possession With Intent to Distribute a Controlled Dangerous Substance (“CDS”) and you are first-time offender, you may be eligible to enter a plea agreement that will only subject you to a non-custodial sentence (i.e., probationary sentence). However, if you are charged with a violation of 2C:35-5, Distribution/Possession With Intent to Distribute CDS and you are a repeat offender, the “Brimage Guidelines” will likely be applicable and your sentence will likely be a term of imprisonment in New Jersey State Prison with a mandatory period of parole ineligibility.
“Brimage Guidelines” apply to violations of the following New Jersey drug statutes:
2C:35-3 Leader of a Drug Trafficking Network
2C:35-4 Operating a Drug Production Facility
2C:35-5 Distribution/Possession With Intent to Distribute – First Degree OR
2C:35-5 Distribution/Possession With Intent to Distribute – Repeat Offender
2C:35-6 Using a Juvenile in Drug Distribution
2C:35-7 Distribution/Possession With Intent to Distribute in a School Zone
Most notably, on January 12, 2010, N.J.S.A. 2C:35-7 (Distribution/Possession With Intent to Distribute CDS in a School Zone) was amended to give discretion under certain circumstances to waive or reduce the mandatory term of imprisonment and parole ineligibility in school zone cases. The amendment was intended to address concerns about the broad geographic sweep of the school zone offense. In some jurisdictions, and especially in densely populated urban areas, most locations are situated within 1,000 feet of a school. As a result, the law’s mandatory minimum sentencing provisions can apply even though the conduct did not directly endanger schools or school-aged children.
The circumstances under which courts can waive or reduce the mandatory term of imprisonment and parole ineligibility in school zone cases are set forth in N.J.S.A. 2C:35-7b(1):
a. the extent of the defendant’s criminal record and the seriousness of any prior offenses for which the defendant has been convicted;
b. the specific location of the present offense in relation to school property and the reasonable likelihood of exposing children to drug-related activities at that location;
c. whether school was in session at the time of the offense; and
d. whether children were actually present or in the immediate vicinity when the offense took place.
However, you are ineligible for a waiver or reduction if the offense took place while on school property or a school bus; or if violence was used or threatened during the commission of the offense; or if a firearm was possessed during the commission of the offense.