The State of New Jersey has a severe overdose problem that is killing dozens of people per week. Opioid addiction has been in the news for many years. A recent report by the Center for Disease Control and Prevention has indicated that there has been a 30% increase over the last twelve months in the United States for drug overdose deaths. Data from the C.D.C. states that New Jersey reported 2,866 overdose deaths in 2020 and 2,854 deaths in 2021.
New Jersey and other states have depended on criminal prosecution as the significant deterrence for drug use. In my experience, both as a state prosecutor and defense attorney, most criminal prosecutions are in state courts. Hundreds of new narcotic criminal complaints are filed weekly throughout New Jersey by local, county, and state law enforcement agencies. Crimes include indictable offenses of illegal possession of a controlled dangerous substance and distribution/possession with the intent to distribute controlled dangerous substances.
The focus article is on drug sellers (dealers) and the consequences they face in the age of the surging overdose deaths related to drugs being sold on the street and prosecuted in the state courts. I will outline in a future blog the federal response to overdose-related deaths in the United States.
STRICT LIABILITY, DELIVERY, OR DISTRIBUTION RESULTING IN DEATH
Strict Liability for Drug-Induced Deaths. When we talk about strict liability for drug-induced death in New Jersey, the focus is on a specific drug-induced homicide law. In New Jersey, this crime is covered under N.J.S.A. 2C:35-9. This law is a strict liability crime.
What Does Strict Liability Mean?
Strict liability exists when a defendant is liable for committing an action, regardless of what their intent or mental state was when committing the act. In criminal law, statutory rape and drug-induced deaths are both examples of strict liability offenses. The New Jersey Supreme Court has upheld the constitutionality of the strict liability provisions of the drug-induced death statute.
Under N.J. Stat. § 2C:35-9(a) ...
- Any person who manufactures, distributes, or dispenses methamphetamine, lysergic acid diethylamide, phencyclidine, or any other controlled dangerous substance classified in Schedules I or II, or any controlled substance analog thereof, in violation of subsection a. of N.J.S. 2C:35-5, is strictly liable for a death which results from the injection, inhalation or ingestion of that substance, and is guilty of a crime of the first degree.
- The provisions of N.J.S. 2C:2-3 (governing the causal relationship between conduct and result) shall not apply in a prosecution under this section. For purposes of this offense, the defendant's act of manufacturing, distributing, or dispensing a substance is the cause of death when:
(1) The injection, inhalation or ingestion of the substance is an antecedent but for which the death would not have occurred; and
(2) The death was not:
(a) too remote in its occurrence as to have a just bearing on the defendant's liability; or
(b) too dependent upon conduct of another person which was unrelated to the injection, inhalation or ingestion of the substance or its effect as to have a just bearing on the defendant's liability.
- It shall not be a defense to a prosecution under this section that the decedent contributed to his own death by his purposeful, knowing, reckless or negligent injection, inhalation, or ingestion of the substance, or by his consenting to the administration of the substance by another.
- Nothing in this section shall be construed to preclude or limit any prosecution for homicide. Notwithstanding the provisions of N.J.S. 2C:1-8 or any other provision of law, a conviction arising under this section shall not merge with a conviction for leader of narcotics trafficking network, maintaining, or operating a controlled dangerous substance production facility, or for unlawfully manufacturing, distributing, dispensing or possessing with intent to manufacture, distribute or dispense the controlled dangerous substance or controlled substance analog which resulted in the death.
SENTENCING FOR DRUG-INDUCED DEATH
Under New Jersey law N.J. Stat. § 2C:43-6. Sentence of imprisonment for crime; ordinary terms; mandatory terms:
- Except as otherwise provided, a person who has been convicted of a crime may be sentenced to imprisonment, as follows:
(1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years.
In New Jersey, as a general rule, a convicted felon sentenced to state prison must serve at least one-third of his sentence before being eligible for parole. However, many factors come into play at sentencing as well as eligibility for parole. For example, if sentenced to a 15-year prison term, the earliest eligibility would be five years.
However, in cases of a drug-induced death, sentencing falls under the No Early Release Act. The pertinent portions of N.E.R.A. provide:
- A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85 percent of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section. State v. Cullum, 338 N.J. Super. 458, 460-61 (N.J. Super. 2001).
For example, if convicted of an N.J.S.A. 2C:35-9 offense and the court sentence is 15 years, a sentence of 12 years must be served before parole eligibility.