New Jersey Governor Phil Murphy (D) is expected to sign a suite of bills codifying the marijuana legalization that was overwhelmingly approved by voters in November. The bills include separate measures to decriminalize and legalize marijuana for production and sales. They have also sparked fierce debate within the state legislature and among New Jersey marijuana justice advocates.
“Our lawmakers are still under the spell of propaganda,” Leo Bridgewater, a national director of Minorities for Medical Marijuana, told Filter. “They think anything over a pound of weed is like letting out ‘El Chapo.’ They still subscribe to the gateway theory. They put people who consume cannabis in the same category as someone who’s addicted to meth or coke.”
Question 1 to legalize marijuana was approved with 67 percent support—the highest margin to date of any legalization ballot initiative in the US. “That shows a disconnect between our lawmakers and the people,” Bridgewater said. “It seems to me they want to punish voters for approving this.”
“Our lawmakers are still under the spell of propaganda. They think anything over a pound of weed is like letting out ‘El Chapo.’”
Bridgewater condemned an earlier version of the legalization bill that included no racial justice framework and skewed disproportionately against workers’ rights. He also accused the legislature of overlooking people with years of experience in cannabis policy, including in their nominees to the state’s cannabis regulatory board.
Cannabis attorney Jessica Gonzalez added that the NJ legislature has rushed to try to pass a bill ahead of a January 2021 deadline when the voter-approved constitutional amendment will take effect—with or without their action. The first bill put forth after the election largely mirrored a failed legalization bill from 2018.
“I think the legislature underestimated how fast advocates would respond to their effort,” Gonzalez told Filter. “The older bill did not speak to our current state of affairs in the wake of the Black Lives movement and George Floyd. The legislature has been misinformed about what advocates want to see.”
Addressing Racial Injustice
Among the top priorities is marijuana decriminalization. The legislature is considering Senate Bill 2535, which would decriminalize possession of up to six ounces of cannabis or 170 grams of hashish concentrate. No criminal or civil penalties—that is, arrest or fines—would be issued.
Stopping arrests for marijuana possession is critical in New Jersey. To date, the state arrests about 100 people per day for marijuana offenses, and ranks third in the nation for both total marijuana arrests and in arrests per capita. Black residents are arrested at over triple the rate of their white neighbors.
Senate Bill 2535 decriminalizes first offenses for low-level cannabis distribution, defined as selling under one ounce of cannabis or five grams of hashish. First-time offenses would result in a written warning. The second offense may be punishable by a prison sentence or a fine, or both.
Ultimately, the law could still criminalize everyday marijuana use if police choose to interpret marijuana “distribution” too broadly. California, for example, legalized marijuana four years ago, and yet in Los Angeles an increasing proportion of Black residents are being arrested for marijuana each year since that reform took effect. That’s because police are often charging Black people with sales or distribution charges, using only plastic baggies or weighing scales as evidence. Bagging or weighing one’s own cannabis, of course, should not be considered criminal behavior, and is a perfectly innocuous activity in everyday cannabis use.
New Jersey’s decriminalization bill notably excludes the rights for residents to grow cannabis at home or to gift it to friends and family—rights that are guaranteed to residents in the nearby state of Massachusetts. These omissions from the New Jersey proposal may indeed lead to further arrests among residents who grow their own cannabis or share it with their peers.
The law could still criminalize everyday marijuana use if police interpret “distribution” too broadly.
The bill ensures police could no longer use the odor of cannabis as probable cause to search someone. This has long been a common police tactic that has been challenged in other states, including New York and Maryland, as critics charge it allows police to abuse their power.
The bill further ensures “virtual” expungement of past cannabis possession cases. New Jersey actually passed an expungement bill back in December 2019, a reform that removed bureaucratic and financial barriers to record expungement overall. Specific to low-level marijuana possession, the reform lets people apply for expungement immediately after their criminal case is concluded (or after three years for larger amounts of the drug).
Unfortunately, the slow movement of this bill has hurt New Jersey residents. Police have continued making low-level marijuana arrests even after the successful vote for legalization. Marijuana is still illegal until further action is taken, and cops will continue enforcing it as such.
New Jersey Attorney General Gurbir Grewal (D) has spoken out publicly to remind residents that legalization has not yet taken effect. He’s also pleaded with prosecutors, urging them to follow past guidelines on low-level marijuana offenses and asking that they use discretion in considering each offense on a case-by-case basis. Prosecutors have not acted uniformly—while some have dismissed cases, others have still sought fines and guilty pleas, according to NJ.com.
A New Bill Could Fight Tax Injustice
Meanwhile, a separate and more contentious battle is playing out over the legislation to regulate marijuana sales and collect taxes: S21/A21. This bill attempts to redress racial and social injustices in how it awards licenses and allocates tax money, designating “impact zones” throughout the state that have been disproportionately harmed by marijuana criminalization.
An impact zone is eligible if it is in the top 40 percent of the state’s marijuana possession arrests, in the top 15 percent for unemployment, or has a particularly high crime index. A quarter of all licenses are required to be given to impact zone residents, and priority will also be given to cannabis businesses who hire residents of these areas.
A full 70 percent of all cannabis tax money will be allocated for “community reinvestment.” This includes legal aid, workforce training and mentoring for impact-zone residents. Remaining tax money will support public education, police training and administration of the cannabis program. A separate “social equity excise tax” on cultivators will be set aside for the impact zones as well.
Bridgewater criticized how cannabis tax money is allocated. Money will be sent directly to the municipal governments of impact zones. He called this a major failing of the legislation. The right thing to do, he explained, would be to give the state cannabis commission oversight over this money. This is a regulatory board responsible for reviewing and granting cannabis business licenses.
Town governments could then apply to the board for money for specific community projects, with more transparency over the whole process. Bridgewater fears the proposed regime will result in incompetence and corruption.
Cannabis money is often directed towards a city’s general fund, and those funds are disproportionately spent on police departments.
His fears are not unfounded. Filter has reported on a similar situation in California: in many cities and towns that legalized cannabis sales, the resulting tax revenues have resulted in swelling police budgets. That’s because cannabis money is often directed towards a city’s general fund, rather than for a specific use. And those funds are disproportionately spent on police departments.
The bill sets an arbitrary cap on cannabis cultivators: only 37 sites for the first two years. This benefits existing medical marijuana producers in the state, who can now sell to both medical and non-medical consumers. An exception is cannabis “microgrows”— businesses with under 10 employees. This exemption could in theory encourage the growth of more small businesses. Nonetheless, the cap has enraged cannabis advocates who fear it’s simply a giveaway to large and already well-funded cannabis companies.
The bill also lacks any special “cannabis equity” license type. When Massachusetts legalized marijuana, it created an “economic empowerment” license category that is designed (in theory) to create equal opportunities within the legal marijuana industry. New Jersey advocates feel their own legislature isn’t trying to go nearly as far.
Workplace drug testing presents another controversy. Business owners argue they should be allowed to prohibit workplace cannabis use, especially in high-risk jobs, such as operating heavy machinery. Advocates counter that this would infringe on people’s legal right to consume cannabis. Active ingredients in marijuana can remain in the body for weeks after consumption, which makes drug-testing for the purpose of regulating its use in the workplace fraught.
Drug recognition is “not a proven science” and puts employees at a disadvantage.
New Jersey lawmakers compromised by saying that in addition to drug-testing during the hiring process employers can drug-test employees only if they have “reasonable” suspicion they are working under the influence. The drug-test must be accompanied by a physical examination designed to spot cannabis use. To that end, cannabis tax money will be allocated to both police and employers to hire “drug recognition experts.”
Bridgewater in his comments to Filter blasted the drug-testing provision, arguing that drug recognition is “not a proven science” and puts employees at a disadvantage without a way to prove their innocence.
It’s easy to understand people’s anger that marijuana legalization—supposedly a way to end racist policing—would instead further fuel such policing. In theory, New Jersey may avoid this with its “community reinvestment” promise. But it’s logical why many like Bridgewater don’t trust cities and towns to spend cannabis tax money properly.
With the proposed bills all but certain to be signed into law by Governor Phil Murphy, the legal marijuana game in New Jersey is just getting started. In the months and years to come, advocates like Bridgewater and Gonzalez will face an uphill battle helping lawmakers and regulators realize the promises of social justice their voters overwhelmingly endorsed.
“Our lawmakers are confusing their legislative responsibility with what the cannabis regulatory board should have oversight over,” he said. “We need to start telling them who’s who—because they don’t know and they’re trying to ‘DIY’ this.”
Photograph via Unsplash