Until now, Atlantic County Prosecutor Jim McClain had been pursuing a felony charge against Allen that would come with a mandatory minimum of three-and-a-half years in prison, despite the fact that he could refer to a diversionary program that would allow her to avoid jail time. Allen has no other criminal record. Now it looks like McClain may be reconsidering.
“I am presently in the process of reviewing our office’s position on the appropriate resolution of this matter,” McClain wrote in a letter sent last week to Superior Court Judge Michael Donio.
He asked that the case be adjourned for three weeks to allow the review. Donio granted the request.
A trial set for Oct. 6 has now been moved to Oct. 20. A conference to discuss motions and jury selection set for this week has been moved to Sept. 25.
Donio previously became the first judge in the state to open up the Graves Act waivers, which record decisions on pretrial intervention concerning these cases. The records are meant to be kept for the attorney general’s review to make sure the law is being applied uniformly.
Local attorney Michael Schreiber argued that if the state can see the records, the defense should be granted the same access. Donio agreed, and opened up three years of decisions. They show that not only do other prosecutors allow for PTI or probation in these cases, McClain’s predecessor also allowed them.
Former Prosecutor Ted Housel liberally applied a normally rare exception in these cases, which allows for parole or pretrial intervention. Housel said in a 2012 memorandum that Atlantic County is unique since tourists who legally own guns often bring them into the state not realizing their permits do not cross state lines.
I posted in July about how Allen’s case raises some important, not-often-discussed issues about race, gun control, and mandatory minimums. It’s also worth pointing out that even putting the volatile race and gun issues aside, this is just a really terrible law. Yes, you should try to know the laws of the states you’re visiting, particularly when it comes to guns. But unless police and prosecutors can show that the owner intended to use the gun to commit a crime, three-plus years in prison is an obscene penalty for an honest mistake that didn’t cause harm to anyone else.