New Jersey's Graves Act: Well Needed but Overreaching

The recent arrest of Plaxico Burress has reawakened the criminal justice system's preoccupation with weapon offenses. Over 17 years ago, New Jersey enacted the so-called Graves Act named after a crusading Mayor and State Senator from Paterson, New Jersey whose name was Frank X. Graves.

By the terms of the "Graves Act", if you are convicted of possession of a firearm with the intent to use it against another, or use or possess a firearm while committing, attempting to commit, or fleeing from certain enumerated crimes, the sentencing judge must impose a minimum term of imprisonment without parole eligibility for a period of three year or between one-half and one-third of the sentence imposed, which ever is greater.

While the need to secure our neighborhoods from the illicit use of weapons is a necessary component of our social order, like many of the other products of the country's "war-on-crime" the Graves Act is somewhat overreaching in its application in at least a few areas.

Specifically, the legislation is applicable to "BB-guns" and as a result, a teenager who recklessly decides to shoot his buddy in the butt as a joke can be prosecuted under this statute. In addition, it does not matter that the firearm was not loaded or even inoperable for criminal liability to attach. Finally, while our constitution requires a jury to determine an accused's guilt beyond a reasonable doubt, the Graves Act allows a judge to determine certain limited issues where the standard of proof is a mere "preponderance of the evidence" which is the proof required in civil cases. While the courts have begun to make some inroads into this fact-finding quirk, the other conceptual excesses in the Graves Act still maintain their vitality.

The Decriminalization of Marijuana

On November 4, 2008, the voters of Massachusetts approved an initiative to decriminalize possession of a small amount of marijuana. In some districts, the voters favored the initiative by 65%. This progressive proposition is consistent with legislation enacted in California quite some time ago.

The frailties of legislation of this type is that: although an individual may possess a small amount of marijuana without state criminal liability, the Federal Government may still prosecute for a violation of the Federal Controlled Substances Act. That much is clear from the United States Supreme Court's decision in Gonzalez v. Raich.

The influence of the Raich case on state laws that decriminalize possession of marijuana may be short lived. This autumn, legislation was proposed in the House of Representatives that would remove all federal penalties, including most civil fines, for the possession and use of marijuana by adults up to three ounces. This unprecedented legislation would effectively legalize the not-for-profit transfers and use of marijuana by "responsible adults."

If you would like more information on criminal drug prosecution in the state of New Jersey, please visit his website at www.cdswiz.com where you can download his recently published book entitled "The Drug War: The Other Casualties."

Frank T. Luciano
Frank T. Luciano, P.C.
147 Main Street
Suite 5
Lodi, New Jersey 07644
(973) 471-0004
www.ftlucianolaw.com