After the Legislature and Governor failed to agree on a bill to effectuate the recommendation of the Criminal Sentencing and Disposition Commission to eliminate mandatory minimum sentences for non-violent drug offenses, the Attorney General issued a new directive. The directive instructed prosecutors to agree to waive mandatory minimum sentences when defendants make applications to be resentenced. A unique provision in the drug laws (known as Chapter 12) requires courts to impose mandatory minimum sentences unless a prosecutor waives the mandatory term. The Directive essentially orders prosecutors to agree to the waiver.

The trial court considering Mr. Arroyo-Nuñez's application denied it, despite the prosecutor’s agreement. The court reasoned that the AG was, in effect, seeking to do what the Legislature failed to do, thereby circumventing separation of powers requirements. Our brief explains that the AG’s office is merely using the power explicitly delegated to it by Chapter 12. That the AG is wielding the power in a way unexpected by the Legislature does not control when the plain language of the statute authorizes the chief prosecutor to make such determinations. 

Date filed

October 1, 2021


Superior Court of New Jersey, Appellate Division