Abrogation of Brimage Guidelines

On April 19, 2021, one day after Governor Phil Murphy conditionally vetoed a bill that would have eliminated mandatory minimum prison sentences for a broad set of crimes, New Jersey’s Attorney General, Gurbir Grewal, issued a groundbreaking internal directive to prosecutors (the “Directive”) that exercised prosecutorial discretion to effectively eliminate mandatory minimum sentences for non-violent drug distribution crimes. It also creates a legal mechanism by which to release prisoners currently serving such sentences.

The Directive is based on recommendations issued in 2019 by the Criminal Sentencing and Disposition Commission (CSDC or the Commission) – a diverse body of criminal justice stakeholders convened in 2018 to review the New Jersey’s sentencing laws. Notwithstanding their positioning on opposite sides of the criminal justice system, members of the Commission – including the Attorney General, the Public Defender, the President of the New Jersey County Prosecutors Association, and the Chairman of the State Parole Board – unanimously recommended that the Legislature end mandatory minimum sentences for non-violent drug offenses and provide a pathway to freedom for those incarcerated for non-violent drug offenses.

The Directive – unlike the vetoed bill – is not an act of the Legislature; it is an internal order by the head prosecutor in New Jersey to other prosecutors directing them not to seek certain mandatory minimum terms for non-violent drug offenses. To understand how the Directive works, one must understand that in the absence of a mandatory period of parole ineligibility (colloquially referred to as a “stip” by prosecutors and defense attorneys), a defendant in New Jersey may become eligible for parole in less than a third of the time called for by his or her prison sentence. For instance, a first time offender sentenced to four years in prison will likely become eligible for parole in a little over a year of incarceration, after taking into account several types of credits. The criminal statutes that punish the most harmful crimes typically impose various mandatory periods of parole ineligibility, making early release unavailable until a certain number of years are actually served.

In an effort to reduce the actual time that offenders spend incarcerated for non-violent drug crimes, the directive targets these mandatory periods of parole ineligibility for non-violent drug distribution offenses. While prosecutors have always had the legal authority to bypass mandatory minimum sentences for drug crimes, the Attorney General’s past guidance – known as the Brimage Guidelines – bound prosecutors to follow a complex set of rules that mandated the imposition of severe minimum sentences unless extraordinary circumstances warranted a departure. Though the purpose of the Brimage Guidelines was to avoid sentencing disparities based on race, the draconian mandatory sentences that applied to all defendants for non-violent drug crimes became a major driver of mass incarceration. The new directive doesn’t change New Jersey drug laws, but rather encourages prosecutors to use an extremely powerful tool more sparingly.

If you are facing a serious drug distribution offense or if you or a loved one is currently incarcerated based on a mandatory minimum sentence, speak to an experienced criminal defense attorney about how the Directive may affect your circumstances. Though the Directive has not yet received much media attention, it represents a sea change in the manner in which non-violent drug crimes will be prosecuted in New Jersey for the foreseeable future. Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rgs@sgdefenselaw.com.