PROSECUTORS GIRD FOR TURF WAR OVER DRUG SENTENCING POWER; (147
N.J.L.J. 1) by Tim O'Brien
Copyright (c) 1997, American Lawyer Newspapers Group, Inc.

As New Jersey moves toward the use of diversionary
programs to break the seemingly intractable link between
crime and drug addiction, a battle is shaping up between
courts and prosecutors over how "drug courts" are run.

Drug courts offer advantages for all sides. Defendants
can avoid prison by entering a plea bargain and enrolling
in a rehabilitation program. And if the defendants overcome
their addiction, the state can lower the crime rate and
save money.

But what should be done with the defendant who enters a
treatment facility only to relapse? Should he or she be
required to serve the mandatory sentence: three years with
no possibility of parole? More important, according to an
internal memorandum by a top state prosecutor, is who
should make the call: the prosecutor or the court.

The issue has not arisen in New Jersey, where drug
courts are new in concept. Only one is in operation in
Camden County and others are planned for Essex, Passaic
and Hudson counties soon.

But Assistant Attorney General Ronald Susswein, in a
memo dated Feb. 10, warns an assistant Camden County
prosecutor that a 1987 state Supreme Court decision, State
v. Vasquez, <2> 129 N.J. 189, could be applied to strip
the state of the power to ensure that drugcourt dropouts
get the mandatory minimum sentence. Susswein, the policy
chief of the Division of Criminal Justice, said that
without stern punishment for defendants who "flunkout" of
their drug treatment program, legislators and the public
might perceive the drug courts to be "soft on crime." Such
a characterization, he wrote, must be "vigorously
dispelled," or else support for the program could wane.

The 10page memo to Sally Smith, the Camden assistant
prosecutor who handles cases referred to the drug court,
deals primarily with the crime of using or selling drugs
within 1,000 feet of a school. Much of it is devoted to the
impact of the 1987 ruling on the resentencing of those who
have been dropped from Camden's drug court program, or, as
Susswein puts it, the state's "Vasquez problem."

A copy of Susswein's memo also was sent to Criminal
Justice Director Terrence Farley, Deputy Attorney General
Mark Cronin of the division's Legislation Unit, and Bruce
Stout, a senior policy adviser in Gov. Christine Todd
Whitman's office. Chuck Davis, the attorney general's
spokesman, says Farley and Cronin will not comment. Stout
did not return a telephone message left at his office.
Legislative Intent at Issue

Susswein's memo lays out arguments and strategy that
could be used to ensure that prosecutors retain the
authority to require such defendants to serve their
threeyear mandatory terms.

At issue is the intent of the Legislature in adopting
the 1987 Comprehensive Drug Reform Act. Specifically, while
N.J.S.A. 2C:357 calls for a mandatory term without parole
for anyone found guilty of selling drugs within 1,000 feet
of a school, N.J.S.A. 2C:3512 allows the mandatory term to
be waived through a plea bargain, before trial or after
conviction.

And, under N.J.S.A. 2C:3514, the judge can parole a
defendant found guilty of selling drugs near a school, and
send him or her to a drug rehabilitation facility, if the
prosecutor and defense agree.

Susswein wrote that in Vasquez, the Court said that
where a prosecutor waives the mandatory sentence and allows
the defendant to receive a probationary sentence, with a
364day jail term in county jail as a condition of
probation, the waiver remains binding and is irrevocable at
a resentencing triggered by a probation violation. As a
result, a prosecutor cannot enter into a plea agreement
under section 3512 that says a probation violator must be
resentenced to the mandatory term and be ineligible for
parole.

Susswein wrote that Vasquez was dealing only with
section 3512, which permits the waiver of the mandatory
term in favor of a lesser jail term, and has nothing to do
with section 3514, which sets forth rehabilitation
programs for drugdependant defendants in lieu of prison.

In an interview on Friday, he acknowledged that some
could interpret the case law as applying to the drug courts
and those who enter treatment programs rather than jail,
saying, "That would be very bad for the drug courts because
the number one priority has to be the public's safety."

Avoiding 'Unearned Benefits' In the memo, Susswein told
assistant prosecutor Smith:

"The policy of imposing the mandatory parole
disqualifier at resentencing would send a clear message to
p rogram participants and would provide these defendants
with the strongest possible incentive to avoid probation
violations and to make satisfactory progress in treatment.
It would send exactly the wrong message, in contrast, if we
were to permit defendants to enroll in this program,
quickly 'flunkout,' and thereby achieve the unwarranted
and unearned benefit of having circumvented the
statutorily prescribed mandatory term of imprisonment....

"This approach is necessary to assuage public and
legislative concerns about these kinds of alternative
sentencing programs." He added that the goal of the program
is to succeed "from a therapeutic standpoint," but also
protect the public from convicted drug criminals.

Analyzing case law with the sections of the drug reform
act, Susswein built a case that the Legislature must have
intended that violators of drug programs must be dealt with
sternly at resentencing. He wrote that a prosecutor's
legitimate interests are not terminated at sentencing
because, in the case of a defendant heading off to a
rehabilitation program, sentencing is only the beginning of
the process, not the end.

He added that "a prosecutor in these cases cannot be
said to have waived any rights of authority reposed by the
Legislature with the prosecutor under 2C:3512, since that
distinct statutory provision is simply not relied upon to
sentence a defendant to residential treatment in lieu of
imprisonment."

Summing up the "Vasquez problem" for the state, Susswein
said, "I think that what the Court in Vasquez was really
saying is that when a prosecutor offers such a sentence,
the prosecutor cannot be heard to complain later that the
364 days in county jail was not enough punishment."

Susswein further contended that the 1987 drug act,
specifically section 3514, was designed to provide a means
to encourage drug defendants into treatment, and then
provide them with strong incentives to stick with the
program and recover. He argued that the possibility of an
automatic resentence of the threeyear term provides such
an incentive. Dealing With Risk of Relapse

Susswein also acknowledged that his approach carries a
risk: The possibility of facing the mandatory term may
cause more defendants to eschew applying for the drug court
option out of fear of a relapse. A defendant is
automatically dropped from the program if he or she fails
two urine tests.

Ultimately, Susswein offered a way to put in place "a
clear and well understood policy" dictating the
consequences of relapse.

He recommended that a prosecutor "make clear on the
record at the time of the plea and sentencing hearings that
the State has not waived or reduced the mandatory term
pursuant to ... 2C:3512." A plea agreement, he added,
should not provide for any waiver, and the defense should
be expressly advised at the time of the plea, and
sentencing.

Susswein also said that in Passaic County, which is
close to launching its drug court, Prosecutor Ronald Fava
is considering pushing into the program some defendants who
are eligible but fear the rigors of the treatment program.
Such defendants often accept a plea deal calling for one
year in state prison 18 months in Passaic County
rather than the rehabilitation program.

Sounding part prosecutor and part drug counselor,
Susswein wrote: "For this reason, Fava is considering
whether it would be appropriate to 'up the ante' by
refusing to tender a 'standardized' plea bargain to a
school zone defendant who clearly is an addict and should,
therefore, be leveraged into treatment. This is an
intriguing idea, and would certainly provide otherwise
reluctant defendants with a strong new incentive to
'volunteer' for the Drug Court Program, helping them to
overcome denial that is often a symptom of the disease of
addiction." He added that such an approach would be
challenged in court, "but I think it would survive judicial
scrutiny."

Fava, however, says that after considering that tactic
he has decided not to use it. He says he fears that a
tougher plea offer could cause some addicts who need
treatment to deny their addiction as a way of getting a
more favorable deal. Political Considerations

One veteran defense attorney, apprised of the memo's
content, says that Susswein appears to be walking a fine
line. On one side is the administration, eager to have the
drug court program succeed. On the other side are the
county prosecutors, who may be vulnerable to political heat
if drug defendants caught dealing near schools are
perceived as getting around the three year minimum
sentence.

On March 13, Administrative Director of the Courts James
Ciancia announced that the Justice Department would give
New Jersey a $1.03 million grant to develop its drug
courts. He added that separate federal legislation is
expected to provide an additional $1 million in a few
weeks. In addition, the administration's fiscal 1998 budget
contains another $500,000 to support the projects in the
four counties.

Ciancia also said that in the year that the drug court
has been operating in Camden, the program has saved the
criminal justice system more than $126,000 in jail space by
diverting defendants into treatment centers. Through last
month, 50 defendants received probation and were admitted
into the program, he said.

Says the defense attorney, who asked not to be
identified, "With the average inmate costing $28,000
annually to house in jail, but only about $22,000 to house
in a treatment center, the state saves $6,000 per
defendant. If you get 1,000 people in the program
statewide, that's $6 million lopped off the Department of
Corrections' budget."

One point that the state and defense seem to agree on is
a recommendation to amend the drug reform act to give
judges discretion to allow a defendant to stay in treatment
after two failed urine tests. Attorney General Peter
Verniero has recommended such an amendment to the
governor's office, according to the memo. Assistant Public
Defender Dale Jones says he agrees with Susswein that
relapses are the reality of those fighting addiction and
that giving certain defendants another chance may benefit
everyone.

Verniero declined, through a spokesman, to discuss the
memorandum. Assistant Public Defender Jones also declined
to comment on the substance of Susswein's memorandum, which
had earlier been sent by the state to the Office of the
Public Defender. Jones said only that it appears "to be an
early rumination of how he might want to go" on the issue
and that the public defender's office is concerned about
bartering away clients' rights.

Michael Friedman, the deputy public defender in charge
of the Camden office, also declined to comment on
Susswein's opinions on the law, but said that the question
of the resentencing of defendants in the drug court "was
not an issue until Susswein got involved." Susswein's memo
is available on Counsel Connect in LIBRARY under "New
Jersey FullText Documents." See page 26 for details.
Senior writer Tim O'Brien's email address is
tobrien@counsel.com.