The opinion of the Court was delivered by
This appeal concerns the constitutionality of N.J.S.A. 20:43-6f (Section 6f), the repeat-offender-sentencing provision of the Comprehensive Drug Reform Act of 1986, which permits imposition of an extended term of imprisonment with a minimum term on defendants convicted of drug-related offenses who have previously been convicted of similar crimes. Whether an extended term is imposed depends on the prosecutor because Section 6f takes effect only on his or her application. However, the statute sets forth no guidelines to govern the prosecutor’s discretion nor does it require the prosecutor to set forth reasons for making a Section 6f motion. Finally, the statute does not provide for judicial review of the prosecutor’s decision to seek an enhanced punishment. Once the prosecutor invokes the statute and establishes the existence of a prior conviction, the court’s role is limited to determining the term of years within the extended-term range to be imposed.
Defendant also raises, for the first time on appeal, a separate challenge to the constitutionality of N.J.S.A. 20:35-15, which provides for mandatory Drug Enforcement and Demand Reduction (DEDR) penalties.
*24 I
A jury convicted defendant, Reynaldo Lagares, of possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10 (count one); possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) (count two); and distribution of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-5 (count three). The convictions arose from defendant’s sale of cocaine on a single occasion to an undercover police officer.
Based on defendant’s 1982 convictions for possession of marijuana and possession of marijuana with intent to distribute, the State moved for an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6f. The statute states in pertinent part that
[a] person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance * * * under N.J.S. 2C:35-5 * * * who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance* * * shall upon application of the •prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:48-7, notwithstanding that extended terms are ordinarily discretionary with the court The term of imprisonment shall, except as may be provided in N.J.S. 2C:35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater * * * during which the defendant shall be ineligible for parole.
The court shall not impose an extended term pursuant to this subsection unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentеncing, the prosecutor shall establish the ground therefor by a preponderance of the evidence. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings and shall also consider the presentence report and any other relevant information, [emphasis added.]
At a previous hearing the prosecutor had introduced unrefuted evidence establishing defendant’s prior convictions. Therefore, the court grаnted the State’s motion for an extended term.
At the sentencing hearing, the court explained that it had no discretion to impose a term less than an extended term of imprisonment or to forgo ordering a period of parole ineligibility. The court explained:
*25 The defendant must realize that the Court really doesn’t have much discretion and that even for this offense, by virtue of the 1982 conviction, he is paying a penalty much — much greater than most other defendants would have been sentenced to, had the crime of the sale of cocаine occurred prior to the amended [Comprehensive [D]rug pt]eform [A]ct
The court merged counts one and two into count three, a third-degree offense. Without enhancement, defendant's convictions would have carried a sentence in the range of three to five years with a presumptive four-year term. A parole ineligibility period would have been within the sentencing court’s discretion. However, the statute mandates that the trial court impose an extended term of imprisonment outside the ordinarily applicable range of three to five years. Defendant was sentenced to seven years imprisonment with a three-year parole disqualifies
In addition to his custodial sentence defendant was assessed a $1,000 DEDR penalty, a $50 forensic lab fee, and a $30 Violent Crime Compensation Board penalty. Finally, the court suspended defendant’s driving privileges for six months.
On appeal defendant challenged the sentencing provision by arguing that it violated the separation-of-powers doctrine by vesting in the prosecutor unbridled and unreviewable discretion over sentencing. The Appellate Division found the statute constitutional and affirmed defendant’s sentence. 247
N.J.Super.
392, 400,
Finаlly, the Appellate Division summarily rejected defendant’s argument that
N.J.S.A.
2C:35-15, which imposes mandatory DEDR penalties, is unconstitutional.
Id.
at 402-03,
*26
We granted certification, 126
N.J.
337,
II
The New Jersey Constitution provides:
The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution. [N.J. Const art. Ill, para. 1.]
The separation-of-powers doctrine was designed to “maintain the balance between the three branches of government, preserve their respective independence and integrity, and prevent the concentration of
unchecked
power in the hands of any one branch.”
David v. Vesta Co.,
45
N.J.
301, 326,
With that flexibility in mind, we have concluded that the separation of powers “certainly never did create[ ] utterly exclusive spheres of competence. The compartmentalization оf governmental powers among the executive, legislative and judi
*27
cial branches has never been watertight.”
In re Salaries for Probation Officers,
58
N.J.
422, 425, 278
A.
2d 417 (1971);
see also Gilbert v. Gladden,
87
N.J.
275, 281 n. 3,
As a general principle, the punishment of criminal defendants does not fit neatly within a single branch of government. The Legislature defines crimes and establishes the appropriate punishment for their commission. That power includes the ability to enact mandatory-sentencing statutes that eliminate any opportunity for a lesser punishment.
State v. DesMarets,
92
N.J.
62, 80-81,
Although sentencing discretion is shared to some extent among the three branches of government, the determination of the sentence is committed to the discretion of the
*28
judiciary.
See State v. Warren,
115
N.J.
433, 447,
In only a few instances, has the Legislature limited that discretion. See N.J.S.A. 2C:43-6c (the Graves Act); N.J.S.A. 2C:14-6 (repeat sex offenders). Under those statutes, however, the court automatically imposes a mandatory sentence after a conviction for a qualifying offense, without regard to prosecutorial consent. Section 6f is substantively different from those statutes. Section 6f permits leniency in some circumstances, but only those in which the prosecutor consents. The infirmity in Section 6f is the prosecutor’s sole discretion to select, without standards and without being subject to the court’s review, which defendants will receive an increased sentence or enjoy favorable treatment.
Where the Legislature has permitted the executive to select defendants for enhanced punishment or favorable treatment, this Court has generally required that decision-making be carriеd out in a fashion that limits potential arbitrariness. In addition, we have required that the judiciary retain the power to review prosecutorial decisions to avoid abuses of discretion. We continue that approach today.
In
State v. Leonardis,
71
N.J.
85, 363
A.2d
321 (1976)
(Leonardis
I), we examined prosecutorial decisions to admit offenders into pre-trial intervention (PTI) programs. Such programs are designed to provide an alternative to the traditional system of prosecuting and incarcerating criminal suspects.
Id.
at 92,
*29
One of the
Leonardis
I defendants challenged the Hudson County Prosecutor’s refusal to articulate reasons for denying him admission into a PTI program.
Ibid.
Concerned by the "virtually untrammeled discretion which has been vested in prosecutors associated with the PTI programs,” we concluded that we could not “sanction a decisional process which might yield
ad hoc
or arbitrary determinations.”
Id.
at 121,
On reconsideration, we reaffirmed the judicial power to review arbitrary executive decisions, and noted that “[c]ertainly, the prosecutor is not immune from the ban against arbitrariness in governmental decision-making.”
Leonardis
II,
supra,
73
N.J.
at 377,
Similarly, in
Monks v. New Jersey State Parole Board,
58
N.J.
238,
*30
We held that considerations of simple fairness require that a denial of parole be accompanied by a written statement of reasons.
Id.
at 246,
Recently, in
State v. Warren,
115
N.J.
433,
Noting that “we cannot overstress the significance of the judicial responsibility in imposing sentence,” we invalidated such agreements.
Id.
at 449,
The determination of a criminal sentence is always and solely committed to the discretion of the trial court to be exercised within the standards prescribed by the Code of Criminal Justice. That discretion should not by implication be encumbered by augmenting the prosecutor’s influence on the sentencing determination. Such limitations on prosecutorial influence over sentencing have long been understood and accepted in defining the prosecutorial role in criminal sentencing * * *. [Warren, supra, 116 N.J. at 447-48,568 A.2d 1812 (citations omitted).]
*31 In addition, we cautioned that such unlimited prosecutorial discretion would be inimical to the important goals of uniformity.
Individual prosecutors with distinctive perceptions of the gravity of particular offenses and offenders, and responsive to a very different constituency from that of the judiciary, would add undue variability, inevitable inconsistency, and greater disparity to the sentencing process. Hence, separate prosecutorial discretion cannot be superimposed on the court’s sentencing discretion. [Id. at 449, 558 A. 2d 1312.]
The Section 6f extended-term provision gives the prosecutor more discretion than did the negotiated-sentence agreements we rejected in
Warren.
In
Warren,
the trial court, although faced with the prospect of risking trial of defendant, had nonetheless been free to reject the plea agreement in its entirety. However, once a prosecutor applies for an extended sentence under Section 6f and establishes a prior conviction, the sentencing judge has no discretion to reject the enhanced sentence. Such unfettered discretion еxceeds the permitted “prosecutorial influence on the sentencing determination” that we addressed in
Warren, id.
at 448,
Without standards the prosecutorial decision-making process remains unguided, and the danger of uneven application of enhanced sentences increases significantly. Suсh results upset the principal goal of the Code of Criminal Justice to insure sentencing uniformity.
See Roth, supra,
95
N.J.
at 365,
That statutes are presumed to be valid is well-established, however, and “even though a statute may be open to a
*32
construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of the Court to so construe the statute as to render it constitutional if it is reasonably suscеptible to such interpretation.”
State v. Profaci,
56
N.J.
346, 350,
Accordingly, we interpret the statute to require that guidelines be adopted to assist prosecutorial decision-making with respect to applications for enhanced sentences under N.J.S.A. 2C:43-6f. Those guidelines should reflect the legislative intent to make extended sentencing of repeat drug offenders the norm rather than the exceрtion. However, prosecutors should remember that the Legislature did not mandate extended sentences, recognizing that in certain circumstances enhanced punishment may be unwarranted.
Because we are not familiar with all of the factors that law-enforcement agencies might consider significant in determining whether a defendant should be exempted from an extended sentence, we request that the Attorney General, in consultation with the various county prosecutors, adopt guidelines for use throughout the state. Such guidelines will promote uniformity and provide a means for prosecutors to avoid arbitrary or abusive exercises of discretionary power.
Moreover, to permit effective review of prosecutorial sentencing decisions, prosecutors must state on the trial court record the reasons for seeking an extended sentence. Such a statement will provide for effective judicial review and will help to insure that prosecutors follow the guidelines in each case.
*33 Finally, we find that the Legislature did not intend to circumvent the judiciary’s power to protect defendants from arbitrary application of enhanced sentences. To protect against such arbitrary action, an extended term may be denied or vacated where defendant has established that the prosecutor’s decision to seek the enhanced sentence was an arbitrary and capricious exercise of prosecutorial discretion.
We emphasize that the burden on defendant to prove that a prosecutor’s decision to deny leniency constituted an arbitrary and capricious exercise of discretion is heavy. Defendants will have to do more than merely make general conclusory statements that a prosecutorial determination was abusive. Instead, they must show clearly and convincingly their entitlement to relief under the standard established herein. Application of that standard is consistent with the legislative determination to make an extended sentence for repeat offenders the norm.
Those safeguards will preserve the separation of powers and carry forward the lеgislative intent to vest the executive with some influence in the sentencing of repeat offenders. At the same time, judicial authority to prevent arbitrary decision-making will remain intact.
The basis of defendant’s due-process claim is essentially the same as his separation-of-powers argument. The arguments dovetail with their focus on the risk of the prosecutor’s arbitrary application of the sentencing provision. The concerns that both arguments raise are sufficiently addressed through the articulation of guidelines by the State and by the prеservation of adequate judicial review of prosecutorial decisions.
Ill
We reject defendant’s contention that the statute denies him equal protection of law by treating him differently from other offenders convicted of the same crimes but not burdened with previous drug-related convictions.
*34
“Although the phrase ‘equal protection’ does not appear in the New Jersey Constitution, it has long been recognized that Article I, paragraph 1, of the State Constitution, ‘like the fourteenth amendment, seeks to protect against injusticе and against the unequal treatment of those who should be treated alike.’ ”
Barone v. Department of Human Servs.,
107
N.J.
355, 367,
Where a statute does not treat a “suspect” or “semi-suspect” class disparately nor affect a fundamental right, then the provision is subject to a “rational basis” analysis.
Dandridge v. Williams,
397
US.
471, 90
S.Ct.
1153, 25
L.Ed.2d
491 (1970);
Barone, supra,
107
N.J.
at 365,
When the Legislature has created classifications of offenders for purposes of fixing penalties, the rational-relationship test appliеs.
State v. Corbitt,
74
N.J.
379, 401,
As we stated in
State v. Smith,
58
N.J.
202, 206-07,
The need for a particular or an additional sanction in one area may appear to the legislative mind in different dimensions and proportions — as more acute in one situation than in another.
********
The Legislature has wide discretion in the creation or recognition of different classes of offenders for separate treatment. In pursuing a legitimate objective it may recognize degrees of harm or possible harm and strike at what it feels more urgently needs repression. If there is some reasonable basis for the *35 recognition of separate classes, and if the disparate treatment of the classes has a rational relation to the objective sought to be achieved by the lawmakers, the Constitution is not offended. The transgression arises only when the classification rests on grounds wholly irrelevаnt to achievement of the State’s objectives; the separate treatment must admit of but one conclusion beyond a rational doubt, i.e., that the basis therefore is arbitrary and unreasonable and without relevance to the legislative goal.
The Legislature articulated the purpose behind the Comprehensive Drug Reform Act (of which N.J.S.A. 2C:43-6f is a part):
It is the intention of the Legislature to provide for the strict punishment, deterrence and incapacitation of the most culpable and dangerous drug offenders * * *. [N.J.S.A. 2C:35 — 1.1(c).]
The enhanced-sentencing provision dоes not violate equal-protection rights because it is rationally related to the legitimate governmental interest of battling crime by punishing recidivists more severely. Repeat offenders are more dangerous than first-time convicts and more deserving of punishment. That legislative determination is reasonable and based on practical experience. See
South Carolina v. Katzenback,
383
U.S.
301, 86
S.Ct.
803,
IV
Defendant also claims that N.J.S.A. 2C:35-15 violates his equal-protection rights by imposing mandatory penalties on offenders convicted of drug-related offenses without rationally furthering a legitimate governmental interest. In addition, defendant claims that the $1,000 penalty imposed on him is excessive and constitutes cruel and unusual punishment. We reject both contentions.
The statute mandates the imposition of a DEDR penalty on every defendant convicted of a drug-related offense. The statute provides in pertinent part:
a. In addition to any disposition authorized by this title, the provisions of section 24 of P.L.1982, c. 77 (C.2A:4A-43), or any other statute indicating the dispositions that can be ordered for an adjudication of delinquency, every *36 person convicted of оr adjudicated delinquent for a violation of any offense defined in this chapter or chapter 36 of this title shall be assessed for each such offense a penalty fixed at:
********
(3) $1,000.00 in the case of a crime of the third degree. [N.J.S.A. 2C:35-15.]
Analysis of the penalty provision’s equal-protection implications is identical to that applied to Section 6f. See ante, at 34, 601 A. 2d at 705. The legislative determination to punish offenders convicted of drug-related offenses differently from offenders convicted of other crimes — even if those crimes are more serious — is examined under the rational-basis test. Ibid.
The constitutionality of DEDR penalties was thoroughly examined in
In re L.M.,
229
N.J.Super.
88,
to provide for the strict punishment, deterrence and incapacitation of the most culpable and dangerous drug offenders, and to facilitate where feasible the rehabilitation of drug dependent persons so as ultimately to reduce the demand for illegal control of dangerous substances and the incidence of drug related crime. [N.J.S.A. 2C:35-l.l(c).]
Imposition of DEDR penalties reasonably furthers the legitimate interests articulated by the Legislature. Use of collected penalties to finance drug-rehabilitation programs and law-enforcement activities is a reasonable method of fighting the ill effects that drugs have on society.
Defendant’s contention that the $1,000 penalty imposed on him is manifestly excessive and amounts to cruel and unusual punishment is invalid. For a penalty to amount to
*37
cruel and unusual punishment it must be found to be grossly out of proportion to the severity of the underlying crime.
State v. Ramseur,
106
N.J.
123, 169,
Therefore, we find that mandatory DEDR penalties are constitutional and that the $1,000 fine imposed on defendant is proportionate to the crimes for which he has been convicted.
V
The judgment of the Appellate Division is reversed with respect to its affirmance of defendant’s extended-term sentence, but affirmed in all other respects. We remand the matter to the trial court for further proceedings consistent with this opinion.
For affirmance in part; for reversal in part; for remandment — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 7.
Opposed — None.