Op-ed

Stop the Revolving Door by Moving Some Criminal Cases to U.S. Courts

Federal prosecutors have more tools at their disposal to ensure pretrial detention and a swifter process

By Daniel G. Giaquinto

               Through efforts by community policing and prosecution programs, law enforcement has become keenly aware of complaints about the criminal justice system's "revolving door."

            This community perception, not unfounded in reality, is caused by chronic and/or major offenders being released quickly after arrest or returning too soon to the community after sentence is imposed.

            A very effective tool for county prosecutors in combating the revolving door phenomenon is the referral of state criminal cases to the U.S. Attorney's Office for federal prosecution. The following case illustrates why.

            In the spring of 1999, a man alleged to be the biggest cocaine dealer in Trenton was purchasing about one kilo of cocaine a week in New York City for distribution in Trenton. The Mercer County Prosecutor's Special Investigations Unit led a task force that probed the allegation, and after four months, the man was arrested along with 22 co-defendants. Although his initial bail in Superior Court was set at $500,000, we were convinced he would post bond, which would consist of a cash payment to a bondsman for a relatively small percentage of the full cash bail.

            We also were concerned that his pretrial release would provide an opportunity to continue his illegal enterprise. Thus, after reviewing the proofs, state and federal statutes and case law that interprets the state drug kingpin statute, we referred the matter to the U.S. Attorney's Office for prosecution, though we retained jurisdiction on the other co-defendants.

            My confidence in the federal system was well placed; the defendant was detained in June 1999, indicted in July 1999, pleaded guilty the following February and was sentenced to a 14-year term in July. He will serve practically all of that sentence. Swift, efficient and highly effective justice.

            During this case, we noticed an alarming increase in the seizure of illegal firearms by our Special Investigations Unit. The lieutenant who heads the unit told me, "There's rarely a time we don't go through a door on a search warrant for drugs when a high-quality weapon is not within reach of the target."

            So last May, we entered into the Mercer County Triggerlock Program with the U.S. Attorney's Office. Our goal is to reduce illegal gun trafficking and gun violence in Mercer County. Each office established liaisons to review and refer state cases for federal prosecution.  The federal system is effective in diminishing the revolving door because it has several advantages over the state system. One frustrating aspect of the state system is the inability of prosecutors to detain major drug dealers and career criminals before trial. Despite appropriate bails ordered by the court, and denial in most instances of the 10 percent option, these offenders somehow manage repeatedly to post bond.

            Previously, this office argued successfully at the trial level that a court could deny the posting of a bond to satisfy cash bail. However, in a 1997 Mercer County case, State v. Rayshawn Cannon, the Appellate Division ruled that a court could not designate one form of bail to the exclusion of other forms. This unpublished opinion has been strictly followed in Mercer County.

            A second factor that contributes to the revolving door is the commission of new crimes by defendants awaiting trial. The problem is exacerbated by the pretrial release of defendants and delay in bringing matters to trial. Moreover, these additional offenses tend to go unpunished or underpunished. Due to the volume of cases in the state system, there is inherent pressure to move the caseload. This leads to "package" plea agreements where there is little penalty to be paid for the subsequent offense.

            In contrast, the Federal Bail Act allows for pretrial detention without bail if the court finds that no condition or combination of conditions would reasonably assure the defendant's appearance and the community's safety. Moreover, in certain instances, there is even a presumption in favor of a finding that no conditions would reasonably assure the community's safety.

            In addition, criminal matters generally are brought to resolution more quickly in the federal system. The federal Speedy Trial Act is a law with teeth. Indictments must occur within 30 days of arrest. Trials must begin within 70 days of indictment, minus time attributed to certain pretrial delays automatically excluded from the act's time. The swifter nature of the federal system allows for less opportunity for the chronic offender to commit another crime.

            Finally, federal defendants must complete basically the entire sentence because of the elimination of parole from the federal system. Although parole is a needed tool in the state criminal justice system, the community is still taken by surprise at the speed by which some offenders return to the street. At the state level, we have improved this situation, albeit piecemeal, by enactment of mandatory minimum sentences and other measures such as the No Early Release Act for violent crimes.

            Although the referral of state matters for federal prosecution is a significant tool for county prosecutors, it must be put in proper perspective. It is important that the community not misinterpret this option as a panacea. The majority of crime in the U.S. will always be prosecuted at the local level. The federal system is one of limited jurisdiction that is not structured for the sheer volume of cases handled by the state system. This limitation is also its strength; it can afford to accept only those cases where its impact will send the greatest message.

            Ultimately, not many state cases will be referred to the federal system; we have referred only three to date. The most likely cases to fit the bill are gun and drug trafficking matters, especially those in which federal agencies are involved in the investigation. The referral decision is very fact-specific and generally considers prior felony convictions, the number of gun or drug transactions and whether a local search warrant meets federal requirements. Generally, we will not refer matters involving violence; we feel those matters are a local prosecutorial responsibility. However, we don't automatically exclude any cases.

            We are not relying on the referral program alone to deal with the revolving door problem; several steps are being taken at the county and state levels. For example, our office instituted a no-negotiation plea policy for crimes involving illegal firearms, specifically as a means of handling gun-related violence in Trenton. Absent compelling circumstances, the only plea offer authorized is a plea to the major count of the indictment as well as any underlying gun offense.

            And with our input, the Trenton Police Department developed a "chronic offender list." Cases involving list members are prioritized. The maximum bail is requested as early as the initial appearance in municipal court, and plea agreements must include punishments for the additional crimes. I or the first assistant prosecutor must approve any deviations from these policies.

            In addition, through our overtures, Sen. Peter Inverso, R-Mercer, introduced S-1701, which would enhance penalties for unlawful possession and the transfer of certain firearms, and would establish three new firearms offenses.

            Inverso and Sen. Shirley Turner, D-Mercer, also plan to introduce a bill that would allow a court to designate the posting of a full U.S. currency cash bail to the exclusion of other forms of bail. This small amendment to an existing statute would be a huge victory for community justice.

            When faced with an acute community problem such as drug-related gun violence, prosecutors should consider a holistic approach. The referral of select matters for federal prosecution will prove to be a successful tool. It could not succeed without the commitment of the U.S. Attorney's Office to assist and support local law enforcement. The U.S. Attorney's Office of New Jersey should be commended for that commitment.