New Jersey's showcase weapon, in a rather large arsenal of weapons implemented to combat its version of the "war on drugs", is called the "Comprehensive Drug Reform Act of 1987" (Drug Statute). The Drug Statute was conceived to wage an aggressive battle against drug-related crimes, to expedite prosecution, and enhance punishment for repeat drug offenders and upper echelon dealers. The express policy of the Drug Statute is to punish drug offenders based on various factors, including the seriousness of the offense, the quantity and purity of the drug involved, the location of the offense, the age of the people associated with the illicit transaction, and the role of the actor in the distribution network.

In a frank disclosure of legislative intent, New Jersey's Supreme Court has observed that the state's legislators were not overly-concerned with treating drug dealers "fairly" when they enacted the Drug Statute.

A. The Scheduling Concept

All of the substances covered by the Drug Statute are identified as controlled dangerous substances (CDS) and are categorized into one of five schedules. The placement of a substance into a schedule is influenced by a number of considerations, including the potential for abuse, its history of abuse and its addictive qualities. In order for a substance to find its way into Schedule I, which involves the most serious of violations, there must be a high potential for abuse and no accepted medical use or lacking any safety standards for its use. Remarkably, marijuana has found it way into Schedule I. 1

B. The Weight Concept

The weight of the CDS can increase the grade of an offense. Thus, if one is convicted of the distribution of marijuana, where the weight of the substance is in excess of one pound, the sentence will be as a third degree offender. If it is less than an ounce, the sentence will be as a fourth degree offender.

The Drug Statute makes it clear that in determining the weight of the CDS, a jury can consider any dilutants. Thus, for purposes of determining the weight of cocaine, a jury can consider, not only the weight of the pure cocaine in the sample, but any cutting agents. Similarly, the weight of the stems, stalks and seeds in a container of marijuana will be considered, even though they do not contain much or any hallucinogenic properties.

Moreover, the government does not have to test each and every package or container of the substance to allow a jury to conclude that all of the packages or containers included the substance, subject of its case. In one case, an individual was convicted of possession with intent to distribute cocaine and sentenced to 7 years in prison, where the government's expert only tested 15 of the 180 vials of the drug uncovered at his apartment. The basis for the court's ruling was that the random testing of the 15 vials provided was sufficient circumstantial evidence to allow a jury to conclude that the remainder of the containers contained cocaine.

Finally, although the government must prove the weight of the CDS beyond a reasonable doubt, it does not have to prove that one knew the weight of the CDS so long as it is established that the person knowingly possessed the CDS. Thus, if a person distributes a package of marijuana where he/she thought that the weight of the package was less than one ounce, when in reality it was more than one ounce, ignorance as to the actual weight of the substance is not a defense and criminal liability will rise to a more serious crime that will require a more serious sentence.

Copyright (c) 2008 Frank Luciano