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Does NJ Attorney General’s Temporary Freeze on Marijuana Prosecutions Signal Bigger Things to Come?

Marijuana leaf and handcuffs

On July 24, 2018, New Jersey Attorney General Gurbir Grewal made big news when he announced his office had instructed municipal prosecutors across the state to temporarily refrain from prosecuting low-level marijuana cases until September 4, 2018.  Grewal also stated that he intended to issue statewide guidance regarding prosecution of marijuana cases at the municipal court level by the end of August.  Grewal’s announcement does not equate to decriminalization of marijuana offenses – it just means that municipal prosecutors have been told to temporarily hold off on prosecuting these cases until they receive further guidance from the Attorney General.

The surprise move was in response to Jersey City’s well-publicized attempt to effectively decriminalize marijuana within that city’s borders.  Although Grewal originally issued a public rebuke to Jersey City for their attempt to go rogue, the temporary pause appears to be a compromise that will allow the Attorney General’s office to develop a unified statewide approach to marijuana prosecutions after Labor Day.  It also may signal things to come for New Jersey’s efforts to legalize marijuana sales to adults over 21, and for the continued expansion of the state’s newly-invigorated medical marijuana program.

Currently, the act of possessing under 50 grams of marijuana or drug paraphernalia is referred to under New Jersey’s criminal code as a “disorderly persons offense.”  This means it is prosecuted at the municipal court level instead of in state Superior Court.  Municipal prosecutors have discretion to recommend first time drug offenders for a “conditional discharge,” which is essentially a term of probation, with attendant fines and monitoring.  This diversionary program, however, is offered only once; subsequent marijuana-related offenses are not eligible for adjudication by conditional discharge. In short, if you have already used your get out of jail free card, you will face stiffer penalties for conviction of marijuana-related offenses, including potential jail time and loss of driving privileges.

New Jersey’s conviction rate for low level drug offenses is among the highest the nation.  Many advocates for marijuana legalization, including Governor Phil Murphy, argue that a disproportionate number of minorities have been prosecuted for marijuana possession.  These “social justice” considerations are cited by many as compelling evidence for statewide legalization.

The Attorney General’s moratorium and pledge to develop a statewide directive for marijuana prosecutions certainly bodes well for those in the social justice camp.  The question is whether this move is a precursor to adult use legalization, or merely decriminalization (or something else)?  While we do not yet know what the future holds, this unexpected development puts renewed political pressure on state lawmakers to act fast on medical and adult use marijuana legislation.

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