Op-Ed: The Assembly should approve official misconduct bill with Sacco’s amendments

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In an editorial, Jersey City criminal defense attorney Jeffrey Garrigan says the New Jersey Assembly should approve the official misconduct bill that includes state Senator (D-32) Nick Sacco’s amendments.

Jersey City criminal defense attorney Jeffrey Garrigan. Photo via LinkedIn.

I wanted to comment on a bill involving the reduction and removal of mandatory minimum sentences, and the Op-Ed piece written by Senator Sacco, which appeared in the Tuesday, October 6, 2020, Star Ledger.

The bill (S-2586) was passed by the Senate, but the Assembly has not moved it.  The bill should become law due to the inherent unfairness of mandatory minimum sentences, and because they often times are misused by prosecutors in their quest to seek justice.

The purpose of the minimums was to establish uniformity in sentencing; however, it has had the opposite effect.

As a criminal defense attorney, I regularly deal with these issues, specifically the mandatory minimums related to official misconduct since a large part of my practice involves representation of public employees.

Here are just some of the problems I see with mandatory minimum sentences:

• With respect to official misconduct, the statute is incredibly broad, potentially encompassing low level crimes where the person charged would almost never face jail time.

All that need be proven by the State is that the person committed an “unauthorized act” which could be as innocuous as a simple employer rule violation with a purpose to obtain a benefit for themselves or another.

Benefit has been very broadly defined by the courts and can mean as little as bringing a smile to one’s face.

The government uses the threat of bringing official misconduct charges, along with its long mandatory minimum jail terms, as a means to compel people to waive their constitutional right to a jury trial and plea to a charge, including forfeiture of their job.

I have seen many occasions where police officers, for example, with unblemished records who have viable defenses simply choose to give up their jobs rather than fight because they don’t want to risk lengthy jail sentences which would cause irreparable harm to their families.

• Juries, when faced with low level theft charges, and official misconduct charges, often convict on the official misconduct charge (because they are not advised of the mandatory sentence), and acquit on the theft charge, thinking they are helping a defendant whose crime was not egregious.

The effect is a long prison term, rather than likely probation because judges have no choice.

• Judges are charged with sentencing defendants every day in court, and in doing so, a great deal of information and facts are considered about the case, the victim, and the defendant so a fair sentencing result is reached.

Mandatory minimum sentences essentially nullify this equitable process.

My experience has been that a vast majority of the judges in this State are exceedingly fair and will treat the serious offenders with an appropriate prison sentence and contrarily will show mercy where crimes turn out to be minor or a one-time lapse in judgment.

• Many times, charges are politically motivated. I’ve seen numerous instances where conduct of a police officer in a department may be handled with internal discipline while the same conduct of another officer is prosecuted because that individual happens not to be part of the administration’s “in-crowd.”

One prime example is a female lieutenant who was indicted on twenty-one counts (alleged theft of $800) which would have resulted in a mandatory minimum sentence of 10 years if convicted.

Other officers who admitted at trial to engaging in the same conduct were not charged criminally but she was because she had filed a lawsuit against the department for sexual harassment. There are many similar examples throughout the state.

• The removal of mandatory minimum sentences across the board does not mean that defendants committing egregious crimes will not receive significant sentences.

The sentencing statutes continue to allow judges to impose prison sentences where the facts warrant.

Eliminating mandatory minimums will go a long way to ending racial disparity in sentencing as well as allow these individuals to exercise their right to trial without fear that if convicted, judges will not be able to consider all of the circumstances of the offense.

I would urge the Assembly to move on this bill, and that it be signed into law.

Jeffrey Garrigan
Jersey City criminal defense attorney