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By Sarah Fajardo

In the campaign to legalize marijuana, one statistic has stood out for years: Black people in New Jersey are arrested for marijuana possession at a rate three times higher than white people, despite similar usage rates.

The severe disparities have persisted, but the number of arrests has skyrocketed. When the ACLU-NJ released a report three years ago analyzing marijuana arrests between 2000 and 2013, marijuana-related arrests were at an all-time high of 27,923 annually. In 2017, that number was 37,623 arrests, as documented in a newly released ACLU-NJ data brief.

Yet on Monday, Nov. 18, New Jersey Senate President Steve Sweeney announced a course of action that would extend this injustice. The plan he announced, for the Legislature to pursue marijuana legalization via constitutional amendment rather than legislation, only prolongs the civil rights crisis of the calamitous drug war. This process would add red tape, and it would create uncertainty surrounding the racial and social justice provisions secured in the current legalization bill, S2703/A4497.

Just days after the Senate president’s announcement, advocates and residents across New Jersey issued a call to New Jersey leadership and lawmakers in a Nov. 21 letter sent by the ACLU-NJ and New Jersey United for Marijuana Reform (NJUMR) signed by nearly 2,000 people: hold an up-or-down vote to legalize marijuana for adult use before the end of the session. Tens of thousands of lives hang in the balance. A marijuana-related arrest occurs in New Jersey once every 14 minutes on average.

The state rarely makes changes through the extreme step of amending the Constitution for sound reasons. Importantly, proposing an amendment doesn’t actually prevent the need to pass legislation. Even if voters do approve a change to the Constitution, marijuana will not immediately be legalized, both chambers of the Legislature would still have to pass follow-up legislation afterward. New Jerseyans voting on a ballot question would only learn the details of what they’ve voted on after the fact, when the Legislature has finished translating a broad constitutional change into specific policy, which can often be messy.

Most importantly, the option of a constitutional amendment on the ballot would delay – and therefore deny – justice for years. Tens of thousands more lives would be interrupted by marijuana arrests during that unnecessary wait, and nothing would ensure that the critical racial and social justice provisions currently written into the current legalization bill, S2703/A4497, would survive.

Along with ending prohibition, we need legalization in order to create opportunities to affirmatively strengthen racial and social justice, and in particular invest in the people and the communities that have been most harmed by prohibition.

For the ACLU-NJ, marijuana legalization is about racial justice, first and foremost. We know that Black and brown communities disproportionately bear lifelong and intergenerational consequences of prohibition. We know that marijuana-related convictions and arrests can make it difficult or impossible to find employment, access student loans, get a driver’s license, and seize countless other opportunities. The costs of marijuana prohibition, especially the human costs, are too steep for New Jerseyans to continue to pay.

Decriminalization is not a comprehensive solution to the civil rights crisis resulting from marijuana prohibition. Under decriminalization, possession and use of a certain amount of marijuana would not automatically result in an arrest, but if legislation imposed civil penalties, racial profiling and other devastating consequences could result, including arrests. Given the well-documented double standard in prosecutorial and judicial discretion depending on race, civil penalties retain the unmistakable imprint of injustice. Any proposal for decriminalization must remove civil penalties for marijuana, not just criminal ones.

Civil penalties, while preferable to arrests and sentences, can strip communities of color of power. A federal civil rights investigation in Ferguson, Missouri, revealed that local authorities used civil fines to systemically target Black residents. In New Jersey, Chief Justice Stuart Rabner noted in a comprehensive report on the subject that municipalities have enforced civil offenses excessively as a means of generating revenue.

In New Jersey, a disproportionate amount of enforcement for civil crimes falls on Black and brown communities, and accumulated fines can become unpayable and lead to warrants. Our lawmakers can stop the tragedy of unnecessary marijuana arrests, and they have a moral imperative to do so. The only way to ensure racial and social justice remain at the core of marijuana reform is to pass marijuana legalization through the legislative process.

Waging a war on communities of color under the guise of a war on drugs has created a civil rights crisis that has deepened with time. That’s why we urgently need legalization – and why we need it now, through legislation with provisions that begin to address these harms.

Sarah Fajardo is the policy director for the American Civil Liberties Union of New Jersey.

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