With legal weed still hazy, New Jersey to resume prosecution of marijuana offenses

James Nash | NorthJersey

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With lawmakers still stuck on the question of lifting criminal penalties for marijuana, New Jersey Attorney General Gurbir Grewal has ordered prosecutors to resume cases against people charged with possessing the drug, which the state's top prosecutor had paused last month.



Grewal declined to extend his July 24 order to suspend prosecutions for marijuana possession until Sept. 4.

After that date, prosecutors must return to charging even minor marijuana crimes, although Grewal noted that prosecutors could move to dismiss those cases for a number of reasons, including that a conviction would jeopardize a person's parenting rights, access to public housing or immigration status.



The attorney general also noted that prosecutors and judges can settle on relatively lenient penalties that would allow someone convicted of a minor marijuana offense to continue driving and to avoid jail time.



"Municipal prosecutors cannot decriminalize conduct that the Legislature has criminalized," Grewal said on a conference call with reporters. "Instead, municipal prosecutors may appropriately exercise discretion on a case-by-case basis as they would with any other kind of case to achieve just results."



Still, his order effectively acknowledges that New Jersey is not on the cusp of a major change to state law that would allow adults to use marijuana freely without a medical reason.

Lawmakers have been debating two approaches: creating a fully legal and taxed market for people 21 and older, or removing criminal penalties for possessing small amounts of marijuana without making sales legal.



Gov. Phil Murphy, who appointed Grewal, favors the former approach, as do Senate President Stephen Sweeney and Assembly Speaker Craig Coughlin. All four are Democrats.

Some proponents of legal weed interpreted Grewal's July 24 order as laying the groundwork for permanently ending prosecutions for possessing small amounts of the drug in New Jersey.

Such cases are among the most common in local courts. In 2016, law enforcement agencies in New Jersey made 32,279 arrests for marijuana possession, according to the FBI’s Uniform Crime Reporting program — accounting for more than 10 percent of all arrests statewide.

Most cases for possession of small amounts in marijuana result in no jail time and in first-time offenders agreeing to pay fines and enter a conditional discharge program, which strikes the offense after a year of no additional arrests.

While Grewal's previous directive was in effect, Jon-Henry Barr, the municipal prosecutor in Clark Township, Union County, halted prosecutions of small-time marijuana offenders but continued gathering evidence to be used in prosecutions after the order was lifted. Barr, a former head of the state municipal prosecutors association who favors legalization, said Grewal's new directive came as no surprise.



"There's nothing in here that I didn't already know," he said. "I have to look at the evidence and the law and proceed accordingly. There's nothing in here that's going to change my approach to prosecutions."

Lawmakers have spent months debating the merits of creating a full legal market for marijuana or lifting criminal penalties, but no bills have come up for a vote. Last week, Sweeney said he and other key lawmakers were going over a 71-page bill that he hoped would come up for a vote by the end of September. The bill would remove all penalties for possession, create a legal marketplace and expunge past marijuana offenses.

Lawmakers have pitched several bills to legalize or decriminalize marijuana before and after Murphy took office in January. The governor set a target of Jan. 1, 2019 for legal sales in his proposed budget, but lawmakers stripped out anticipated marijuana tax revenue from the final budget, effectively conceding that legalization would not happen by then.

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"I don't know what the Legislature is going to come up with and I don't know when they're going to come up with it," Grewal said Tuesday morning. "I know that there are a number of cases in municipal court and they can't be stayed indefinitely."



Grewal's earlier order to suspend marijuana prosecutions stemmed from a dispute with Jersey City, which had halted prosecutions on its own. Two days later, Grewal told Jersey City that it lacked the authority to ignore provisions of the law with which it disagreed.



After discussions with Jersey City officials, Grewal announced a statewide pause on marijuana prosecutions pending the work of a panel he formed to advise a longer-term approach. The 20-person panel, whose work concluded Tuesday, was dominated by people with law-enforcement backgrounds but also included two leaders of civil-rights groups that endorse marijuana legalization.

One of the two, Amol Sinha, executive director of the New Jersey chapter of the American Civil Liberties Union, said Grewal's latest order shows the need for lawmakers to act.

"We applaud the attorney general for recognizing the devastating impacts that a marijuana charge can have on individuals and their families," Sinha said in a statement. "But, guidance can only go so far – we need a change in the law itself to bring justice to all New Jerseyans."

Jersey City Prosecutor Jake Hudnut, who also served on the panel, said its recommendations weren't far from the more lenient approach advocated by his city.

"The problems of racially disparate and costly arrests and prosecutions of marijuana possession will not be solved until New Jersey enacts legalization, as well as automatic expungement of past convictions," Hudnut said in an email message.