New Jersey vs. Soricelli
Dateline: 08/11/99
The Supreme Court of New Jersey has sent a message to those who suffer from the disease of drug addiction and have been convicted of a crime involving the use, possession or distribution of drugs. That message is: do not get treatment before sentencing. Yes, the message is that if you are successful in pre-sentence treatment of an addiction, the Court will send you to jail.
What does this mean for those in the counseling profession? Should a drug and alcohol counselor inform her client that recovery may mean a loss of liberty? Should a drug and alcohol counselor not encourage recovery? Should an Attorney be reluctant to recommend treatment for a client?
These and other issues have been created by the recent decision in State of New Jersey vs. Michael Soricelli, 156 NJ 525 (1999) The facts of the case are not unique. Michael Soricelli and two others were stopped by the police on July 18, 1993. After a search of the car resulted in the discovery of phencyclidine (PCP) and cocaine, Mr. Soricelli admitted that he was aware of the fact that one of the co defendants had in his possession a quantity of PCP for his own use and to share with friends. Soricelli was a passenger.
He Pled Guilty
A quantity of drugs in a cigarette pack was tossed into the front seat of the car where Mr. Soricelli was seated. He took the drugs and hid them in his pants, claiming that he intended to return them to the rear passenger. The defendant acknowledges that by concealing the drugs he acted as an accomplice to the co-defendant in the rear of the vehicle. The actual indictment of the defendant was for second degree possession of PCP with intent to distribute two counts of third degree unlawful possession of PCP and third degree possession of hindering apprehension.In a plea agreement Mr. Scoricelli pled guilty to the second-degree offense of possession of PCP and to a violation of probation of a prior offense involving possession of PCP. As a result of the plea agreement other charges were dismissed.
In New Jersey, a second-degree offense carries with it a "presumption of incarceration" N.J.S.A. 2C: 44-1(d). However, there is a provision in another law that contains an alternative to incarceration. That law, N. J. S. A. 2C: 35-14, also known as the Drug Reform Act, allows for the rehabilitation of certain drug dependent individuals via the use of probation and a six month in-patient program as opposed to a prison term.
Tested Negative
The defendant, attended an inpatient drug rehabilitation facility in December 1993. He completed a 14-day stay. He then participated in after-care counseling. Between March 1994 and the date of the sentence in October 1994 the defendant received individual therapy and participated in an early recovery group, an alcohol awareness group and a relapse prevention group. The defendant tested negative on all of his urine drug screen tests during this period of time.At the sentencing hearing, the defendant indicated that he has had a long history of drug abuse that has led to the loss of his home, business and marriage. He related his prior experience at in-patient and out patient care facilities. He stated that he regularly participates in Alcoholics Anonymous or Narcotics Anonymous and has not used drugs or alcohol since November 1993.
The judge imposed a five-year probationary sentence conditioned on out patient counseling, drug-urine testing, employment and any other counseling requirement imposed by the Probation Department. The Court, in imposing the sentence made reference to N.J. S.A. 2C: 35-14, (The Drug Reform Act) which allows trial courts to sentence certain drug dependant offenders to a residential in patient rehabilitation program for not less than six months as an alternative to prison.
This sentence was appealed by the Prosecutor.
Owned His Own Business
The Appellate court reversed and sent the case back to the trial court for resentencing. The court noted that the Drug Reform Act provided that a drug dependent defendant sentenced to probation for a second degree crime must be placed in a residential program for a minimum term of six months. The plain language of the statute could not be clearer. The appellate court came to the conclusion that the defendant's prospects for being rehabilitated was not the type of circumstance that would overcome the presumption of incarceration, nor the overriding need for deterrence. The Supreme Court denied the defendant's appeal. State of New Jersey v. Scorelli, 143 N. J. 518 (1996).The matter was again heard on sentencing before the same trial judge. This sentencing hearing came approximately 18 months after the initial sentence of probation had been reversed by the Appellate Court. At this point in time the Defendant was in his own business and had a favorable report from his probation officer. The probation report confirmed that the defendant had completed his out patient treatment and continued to have negative drug screen tests.
The sentencing judge noted that it would be justified to place Mr. Soricelli in a long term in patient program, but he is no longer using drugs. The judge went on to equate the rehabilitation of the defendant to what the defendant would have accomplished in the long term in patient program. Therefore, the Court reasoned, incarceration of this defendant would constitute an injustice that outweighs the interest in deterrence. Thus, the defendant was re-sentenced to three and one half years probation, conditioned on continuation of out patient counseling.
The Prosecutor again appealed.
Appellate Court Agreed, But...
This time the appellate division found that the sentencing court's discretion was properly exercised and agreed that the incarceration of the defendant would be a serious injustice in light of the defendants' successful rehabilitation from drug addiction. State of New Jersey v. Soricelli, 302 N. J. Super. 196 (1997).The Prosecutor appealed the decision of the Appellate Court.
The Supreme Court agreed to hear the matter. The first issue decided by the Supreme Court was that rehabilitation is not recognized as a factor in determining whether the serious injustice standard for overcoming the presumption of incarceration in a second-degree offense has been met. The foregoing pronouncement was without consideration of the implication of the Drug Reform Act, which authorizes an alternative to incarceration. Thus, the Court held that sentencing a rehabilitated individual to prison is not as a matter of law an injustice under N.J.S.A. 2C: 44-1(d).
The Court next considered the impact of the Drug Reform Act on the sentencing of this defendant. After a review of the legislative history of the Drug Reform Act, the Court concluded that rehabilitation of drug offenders is a significant objective and the goal of rehabilitation is of sufficient importance in appropriate cases to overcome the presumption of incarceration applicable to second-degree drug offenders. To this point it would seem that the defendant was on safe ground.
Did Not Apply?
However, the Court for a reason that was not clearly explained, took the position that this provision of the Drug Reform Act did not apply to this defendant because he was no longer drug dependant. The Court found that there is no alternative to incarceration for offenders such as this defendant who has successfully overcome addiction.The court noted that if the defendant's drug rehabilitation were less complete or less successful, he would be an appropriate candidate for a five year probationary sentence, upon the condition of commitment to a residential drug treatment rehabilitation facility for a minimum of six months, pursuant to N. J. S. A. 2C :35-14.
Presumably the goal of such a probationary sentence is rehabilitation. This defendant achieved that goal. However, it is because of this achievement that the Supreme Court determined that he must serve a custodial sentence. The Court held that only those individuals that are not rehabilitated and in need of the alternative provisions of treatment and probation are eligible for such a sentence.
Where's the Logic?
The case was remanded back to the trial court for resentencing to an appropriate custodial term. There you have it. The message directly from the Supreme Court of New Jersey. "if defendant's drug rehabilitation were incomplete or less successful he would appear to be an appropriate candidate for a five year probationary sentence … pursuant to N. J. S. A. 2C 35-14."In view of this what advice does a counselor give to an individual that is in a situation similar to Mr. Soricelli? For that matter, what advice would an attorney give to a client similarly situated? How can a drug and alcohol counselor in good conscience not inform a client of the pitfall of recovery? One wonders if the Court considered that a drug addict is never truly considered as being cured. That once a person is addicted to drugs that addiction will remain regardless of use or not.
The conventional wisdom in the addiction field is that once addicted to drugs one is always addicted to drugs. One wonders if this aspect of addiction was ever presented to or considered by the Court. The Court seemed to have concluded that since the defendant was no longer using drugs that the defendant was no longer drug dependant and therefore, not entitled to the probationary sentence provided under the Drug Reform Act. It would appear to me that the goal of rehabilitation has been lost in this narrow view of drug dependence.
No Expert Testimony
It seems that facing the prospect of a five-year custodial sentence if one is in recovery would weigh mightily against rehabilitation prior to sentencing. Can a counselor allow or worse yet inform a client to lie about the status of recovery before a sentencing judge? Does the ends of a clearly preferred alternative of a non-custodial sentence; justify the means of being less than forthcoming about one's "drug dependence"? This question can only be answered by the individual counselor following her own conscience.Perhaps the challenge for the counseling profession is to lobby the New Jersey Legislature for a change in the Drug Reform Act. Advocacy for a just cause would seem to fall within the professional responsibilities of those in the counseling profession. The highest Court in New Jersey has laid the challenge. Will the professionals in the filed of addictions answer?
In an effort to learn more about the facts before the Court, the writer interviewed the attorney that argued the case for the defendant. It seems that there was no expert testimony offered on the issue of continued drug dependence after drug use stops. That is to say, the Court was without the benefit of expert opinion as to the nature of drug addiction.
In view of the fact that the case seemed to hinge on the fact that the defendant was no longer drug dependant; one wonders if the Court had expert testimony to the effect that a drug addict is never "cured" and thus, still drug dependant, if a different result would have followed.
The answer now lies with amending the law. This of course will not be of any help to Mr. Soricelli, he is presently in jail.
James J. Maguire, Jr, MA, JD, NCC
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