New Jersey is one step closer to launching legal marijuana sales as approved by voters last month after the state Senate and Assembly passed landmark legislation Thursday to establish a framework for the new market. The proposal now heads to the desk of Gov. Phil Murphy (D) for his signature.
Both chambers of legislature also approved separate bills to decriminalize possession of up to six ounces of marijuana and reduce criminal charges for the possession of psilocybin. The two provisions were once parts of a single measure, but lawmakers spun off the psychedelic mushroom component into standalone legislation after some took issue with pairing them together.
The marijuana sales legislation (A21/S21)—passed by the Assembly on a 49–24 vote, with six abstentions, and approved by the Senate with a 23-17 tally—is by far the most sweeping of the bills. It has also generated some controversy. Introduced by sponsors just days after more than 67 percent of voters approved a marijuana legalization referendum on Election Day, it ran into repeated delays over concerns about social equity, licensing rules and drug testing of workers.
The psilocybin bill cleared the Senate by a 22-15 vote, with three abstentions, and passed the Assembly, 51-22, with six abstentions.
The marijuana decriminalization proposal was approved by the Assembly in a 64-12 vote, with three abstentions, and the Senate approved it, 31-2.
The final cannabis legalization legislation is the result of a compromise announced less than a week ago by top lawmakers and the governor, and includes a number of amendments made in committees earlier this week and only published online for public consumption after the fact on Wednesday afternoon. Sponsors have explained their rush by saying it’s necessary to pass the legislation before the voter-approved legalization of cannabis in the state Constitution takes effect on January 1.
After the deal was reached, the governor and legislative leaders released a joint statement saying the revised legislation “will accomplish our shared goals of delivering restorative justice and ensuring that the communities most impacted by the War on Drugs see the economic benefits of the adult-use cannabis market.”
We have passed #S21, which will provide the most sweeping social justice reforms in the nation & shift NJ’s #marijuana policy. These laws will decriminalize #marijuana, dismiss pending trials, expunge prior records, & repeal mandatory minimum sentences. https://t.co/YMfn0orKbR pic.twitter.com/tJRvD6OsPz
— Steve Sweeney (@NJSenatePres) December 17, 2020
“This is a historic reform that will have a real-life impact on social justice, law enforcement and the state’s economy. It will launch a new cannabis industry with the potential to create jobs and economic activity at a time when it is desperately needed,” Senate President Steve Sweeney (D) said in a press release after the bill’s passage. “We will now be able to move forward to correct social and legal injustices that have had a discriminatory impact on communities of color at the same time that marijuana is regulated and made legal for adults.”
Among the most notable changes to the bill since its introduction last month is the inclusion of a social equity excise tax and a provision to route 70 percent of all state marijuana sales tax to so-called impact zones, areas determined by the state to have been disproportionately affected by marijuana prohibition. The money would fund legal aid, health care, workforce training and other programs for residents of those areas.
Asw. @AnnetteQuijano on the passage of A-21, regulating Adult-Use Cannabis in New Jersey:
"This is a commitment to hope and opportunity, and social and economic justice for New Jerseyans – especially black and brown communities." pic.twitter.com/9hU2x1UeCZ
— NJ Assembly Democrats (@njassemblydems) December 17, 2020
.@AnnetteQuijano , @jamelholley , @AswTimberlake , @AswMcKnight , @JoeDanielsen17 & @BenjieWimberly BILL GUIDING REGULATION OF ADULT-USE CANNABIS IN NEW JERSEY HEADS TO GOVERNOR’S DESK https://t.co/pv5pteNlyd
— NJ Assembly Democrats (@njassemblydems) December 17, 2020
Sweeney, along with Judiciary Committee Chairman Nick Scutari (D), has also proposed a separate 2021 ballot question that would enshrine equity funding as a constitutional amendment and as a result shield the money from being directed to other programs as part of the state’s annual budget process.
While equity advocates have welcomed those changes, the ACLU of New Jersey and others say the new law still wouldn’t do enough to redress racial injustices of the drug war or ensure a path for victims of prohibition to profit from the new industry, as some other legal states have attempted to do.
Our work is still unfinished.
We have more work to do during the regulatory and budget processes and in future legislation.
We’ll keep fighting for more equity provisions that address the injustices of cannabis prohibition and build an inclusive industry at every level.
— ACLU of New Jersey (@ACLUNJ) December 17, 2020
Jessica Gonzalez, general counsel for Minorities for Medical Marijuana, said this week that she would have liked to see lawmakers add a special social equity status for license applicants. “There’s still a considerable amount of uncertainty surrounding the tax allocation to social equity programs,” she said.
The legislation passed Thursday would give priority to applications for businesses that include a person who has resided in an impact zone for three or more years, or for businesses that plan to hire at least 25 of their employees from impact zones. Gonzalez and others warn that could allow large businesses to move in to a town and hire only a small number of local workers.
Another recent change to New Jersey’s cannabis legislation would limit the state to granting 37 marijuana cultivation licenses to commercial growers during the first two years of legal sales. That could benefit existing medical cannabis producers, who would be allowed to sell to adults over 21 as soon as they certify they have enough supply to meet existing patient demand.
Proponents of dropping the license cap, meanwhile, said removing it would allow a more diverse array of businesses to participate, including those with less access to capital. The legislation does not set a limit on licenses for microbusinesses, or those that employ 10 or fewer people.
Under another recent amendment, employers would be allowed to require workers to take drug tests based on “reasonable” suspicion of cannabis use in addition to pre-employment or regular employee drug screening. Drug tests would need to be done alongside a physical examination done by a person specifically trained to recognize cannabis use, which some businesses have complained would be impracticable.
Meanwhile, legalization advocates have complained that the legislation would continue to criminalize people who grow their own cannabis at home for personal consumption—unlike most other legalized states.
The legalization of #marijuana will usher in a new industry that can support over 40,000 #jobs while creating #economic activity that NJ desperately needs at this time. We are excited by the potential growth that this industry shows for the #GardenState.https://t.co/mRv6WavlEj pic.twitter.com/ggPM9fEG3L
— Steve Sweeney (@NJSenatePres) December 17, 2020
A separate cannabis bill up Thursday for a full vote by the legislature would decriminalize possession of up to six ounces of marijuana. That measure, S2535/A1897, was introduced before voters approved marijuana legalization but would nevertheless still apply, removing criminal and civil penalties for cannabis possession. The commercial sales regulation bill, by contrast, allows legal possession of up to a single ounce of marijuana.
The decriminalization measure would also allow for “virtual” expungements of cannabis possession convictions that occurred prior to the bill’s enactment and prevent police from using marijuana odor as a justification to perform a search.
“Not only are we decriminalizing possession but also first offenses for low-level distribution, a move which will offer individuals a second chance and ensure they do not become entangled in the system the first time they are caught selling small quantities of marijuana,” Senate President Pro Tempore M. Teresa Ruiz (D), the bill’s lead sponsor, said in a statement last month. “This is yet another step towards bringing justice and equity to historically impacted communities.”
The marijuana decriminalization bill at one point contained a provision that would also reduce criminal penalties for possession of psilocybin mushrooms, although it would not decriminalize it completely. That amendment was added by Scutari in committee, and then removed over concerns it could derail the broader decriminalization measure.
It was reintroduced as a standalone bill, A5084/S3256 and is also set for final legislative votes on Thursday. The measure would reduce possession of up to one ounce of psilocybin mushrooms to a disorderly persons offense, punishable by a maximum $1,000 fine and up to six months in jail.
New Jersey Attorney General Gurbir Grewal (D) late last month directed prosecutors to adjourn most marijuana possession cases until at least January 25. Legal sales could kick off early next year, and passage of the decriminalization bill would eliminate the need for most prosecutions for simple possession.
Sweeney, the Senate president, applauded the attorney general’s move. “Now that the people of NJ have spoken,” he wrote in a tweet, “no one should be subject to facing criminal charges for minimal amounts of this substance.”
Meanwhile, Murphy last month appointed an official to lead the state’s Cannabis Regulatory Commission that will oversee the legal marijuana market.
Also on Thursday, the Senate approved legislation to revise “the restrictions that apply to ownership of or investment in a medical cannabis dispensary and other types of alternative treatment centers,” according to a summary. The vote was 32-8.
Pennsylvania Senators Will Consider DUI Protections For Medical Marijuana Patients At Hearing
A Pennsylvania Senate committee is set to take up a bill next week that would protect medical marijuana patients from being prosecuted under the state’s “zero tolerance” DUI laws.
The legislation, sponsored by Sen. Camera Bartolotta (R), would amend state statute to require proof of active impairment before a registered patient can be prosecuted for driving under the influence. The current lack of specific protections for the state’s roughly 368,000 patients puts them in legal jeopardy when on the road, supporters say.
The #PASenate Transportation Committee will hold a hearing on 9/21 with a focus on my #SB167, which would remove DUI penalties for legal medicinal cannabis use. @SenLangerholc @PASenateGOP Details ⤵️https://t.co/cSd2Cpdky9 pic.twitter.com/av3mxvAuCk
— Senator Bartolotta (@senbartolotta) September 16, 2021
Bartolotta first introduced an earlier version of the bill in June 2020. She said at the time that the state needs to “ensure that the legal use of this medicine does not give rise to a criminal conviction.”
Months after the standalone reform legislation was introduced, the Pennsylvania House approved a separate amendment that would enact the policy change.
Pennsylvania legalized medical marijuana in 2016, with the first dispensaries in the state opening in 2018. But the state’s zero-tolerance DUI law still doesn’t reflect those changes. Because it criminalizes the presence of any THC or its metabolites in a driver’s blood—which can be detected for weeks after a person’s last use—the law puts virtually all medical marijuana patients at risk, even if it’s been days since their last use and they show no signs of impairment.
Bartolotta’s bill would require officers to prove a registered patient was actually impaired on the road.
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“Unimpaired patients currently face the risk of being arrested, prosecuted and convicted for using medicinal marijuana that has no bearing on their ability to drive a vehicle,” the senator wrote in a cosponsorship memo late last year. “Given the very serious consequences of a DUI conviction, my legislation will provide critical protections for medicinal cannabis patients by ensuring responsible use of their legal medicine does not give rise to a criminal conviction.”
Several legal cannabis states have enacted per se THC limits in blood, similar to blood alcohol requirements. However, evidence isn’t clear on the relationship between THC concentrations in blood and impairment.
A study published in 2019, for example, concluded that those who drive at the legal THC limit—which is typically between two to five nanograms of THC per milliliter of blood—were not statistically more likely to be involved in an accident compared to people who haven’t used marijuana.
Separately, the Congressional Research Service in 2019 determined that while “marijuana consumption can affect a person’s response times and motor performance… studies of the impact of marijuana consumption on a driver’s risk of being involved in a crash have produced conflicting results, with some studies finding little or no increased risk of a crash from marijuana usage.”
Outside of this bill, Pennsylvania lawmakers have continued to pursue adult-use legalization in the state. Earlier this year, two legislators circulated a memo to build support for a comprehensive reform bill they plan to introduce, for example.
A bipartisan Senate duo is also in the process of crafting legislation to legalize cannabis across the commonwealth. They announced some details of the proposal earlier this year, but the bill has yet to be formally introduced.
Outside the legislature, Gov. Tom Wolf (D) said earlier this year that marijuana legalization was a priority as he negotiated the annual budget with lawmakers. However, his formal spending request didn’t contain legislative language to actually accomplish the cannabis policy change.
Wolf, who signed a medical cannabis expansion bill in June, has repeatedly called for legalization and pressured the Republican-controlled legislature to pursue the reform since coming out in favor of the policy in 2019. Shortly after he did that, a lawmaker filed a separate bill to legalize marijuana through a state-run model.
Lt. Gov. John Fetterman (D), who is running for U.S. Senate, previously led a listening tour across the state to solicit public input on legalization. He’s credited that effort with helping to move the governor toward embracing comprehensive reform. The lieutenant governor even festooned his Capitol office with marijuana-themed decor in contravention of a state law passed by the GOP-led legislature.
Fetterman has also been actively involved in encouraging the governor to exercise his clemency power for cannabis cases while the legislature moves to advance reform.
In May, Wolf pardoned a doctor who was arrested, prosecuted and jailed for growing marijuana that he used to provide relief for his dying wife. That marks his 96th pardon for people with cannabis convictions through the Expedited Review Program for Non-Violent Marijuana-Related Offenses that’s being run by the Board of Pardons.
Overall, legalization is popular among Pennsylvania voters, with 58 percent of residents saying they favor ending cannabis prohibition in a survey released in April.
Another poll released in May found that a majority of voters in the state also support decriminalizing all currently illicit drugs.
Photo courtesy of Mike Latimer.
80 Top Law Enforcement Officials, Including A Biden Nominee, Urge SCOTUS To Hear Safe Injection Drug Case
A coalition of 80 current and former prosecutors and law enforcement officials—including one who is President Joe Biden’s pick for U.S. attorney of Massachusetts—have filed a brief urging the Supreme Court to take up a case on the legality of establishing a safe injection facility where people can use illicit drugs in a medically supervised environment.
The nonprofit organization Safehouse was set to launch a safe consumption site in Philadelphia before being blocked by a legal challenge from the Trump administration, and it filed a petition with the nation’s highest court last month to hear the case. Now the group of law enforcement officials associated with Fair and Just Prosecution are calling on the Supreme Court to act in an amicus brief.
“Amici have an interest in this litigation because overdose prevention sites (OPSs) are among the harm reduction and public health interventions that have proven effective in preventing fatal overdoses and diverting people from unnecessary and counterproductive interactions with the justice system,” they wrote. “Amici, many of whom are currently or were previously responsible for enforcing the nation’s drug laws, also believe that the Controlled Substances Act cannot be construed to prohibit operation of a facility designed to address the most acute aspects of this public health emergency.”
“As law enforcement and criminal justice leaders, amici’s objective is to maintain public safety; saving lives and promoting health is as central to that mission as preventing and prosecuting crime.”
Read the full brief: https://t.co/e4Sv6oba4b
— Fair and Just Prosecution (@fjp_org) September 17, 2021
If the court agrees to hear the dispute, advocates will be looking toward the Biden Justice Department and whether it will continue the federal government’s opposition to allowing supervised injection facilities. It would be a precedent-setting case that could steer policy for years to come, meaning Safehouse is taking a significant risk by pursuing the appeal of its loss in a lower court before the majority of conservative justices.
“Failing to address the loss of life resulting from drug overdoses—and criminalizing a community-based public health organization working to save lives—will further erode trust in the justice system,” the new brief states. “If there were ever a time to demonstrate that our government values the dignity of human life, that time is now.”
While President Joe Biden hasn’t weighed in directly on safe consumption sites, there’s been a theme within his administration of embracing the general concept of harm reduction for drugs. The White House Office of National Drug Control Policy (ONDCP), for example, said that “promoting harm-reduction efforts” is a first-year priority. In an overview of its objectives, the office said it intends to expand “access to evidence-based treatment,” enhance “evidence-based harm reduction efforts” and promote “access to recovery support services.”
These goals theoretically align with those of Safehouse, which wants to give people with substance use disorders a facility where medical professionals can intervene in the event of an overdose and provide people with the resources to seek recovery.
Among the signatories on the amicus brief are a former deputy assistant attorney general under Obama, district attorneys of Baltimore, Cook County, Dallas County, Los Angeles County, Manhattan, Philadelphia, San Francisco County and Seattle and the former attorneys general of Ohio, Vermont and Virginia.
But one signatory who especially stands out is Rachael Rollins, the district attorney of Suffolk County, Massachusetts who is Biden’s nominee for U.S. attorney of Massachusetts.
“As an elected prosecutor, I have a responsibility to protect every member of my community, which requires moving away from criminal justice responses to substance use disorder,” Rollins said in a press release. “Instead, we must embrace proven public health strategies as potential solutions. Lives depend on it.”
Philadelphia District Attorney Larry Krasner said the drug war “has taken too many lives already, and criminalization has only exacerbated this devastating toll.” He added: “We need a new way forward that allows communities to address the overdose crisis with harm reduction approaches proven to save lives and improve community safety.”
“Our nation’s failed war on drugs has taken too many lives…and criminalization has only exacerbated this devastating toll. We need a new way forward that allows communities to address the overdose crisis with harm reduction approaches proven to save lives." –@DA_LarryKrasner
— Fair and Just Prosecution (@fjp_org) September 17, 2021
Fair and Justice Prosecution, the group that coordinated the amicus brief, also organized a tour of Portugal for 20 top prosecutors in 2019 so they could learn about the successful implementation of the country’s drug decriminalization law.
Safehouse won a battle in a federal district court in 2019 to proceed with the facilities. But in January, the U.S. Court of Appeals for the Third Circuit overturned the decision, ruling that permitting such facilities would violate a 1980s-era federal statute that bars organizations from running operations “for the purpose of unlawfully… using controlled substances.” That law was passed while Biden served in the Senate and helped push punitive drug policies that have had lasting consequences.
“As current and former criminal justice leaders, amici have seen first-hand how the classic ‘war on drugs’ approach to drug control—with its almost exclusive focus on aggressive criminal law enforcement—has exacerbated the overdose epidemic,” the pro-reform prosecutors and cops wrote in the new brief. “This experience confirms that no jurisdiction can arrest its way out of this public health problem. Fatal overdoses are a symptom of substance use disorder, a medical condition requiring a medical response.”
“Distorting federal drug laws to prohibit an [overdose prevention site] or to prosecute its sponsors would further undermine trust in the justice system and faith in the fair and sensible application of our drug laws. Interpreting federal criminal law to bar empirically validated harm reduction measures would make no one safer; it would only impede cooperation between law enforcement and the communities they serve.”
In its original petition to the Supreme Court in the current safe injection site case, Safehouse argued that the justices should “grant review to determine whether” federal statute really does prohibit “non-commercial, non-profit social service agencies…from establishing an overdose-prevention site that includes medically supervised consumption.”
“This question is a matter of life or death for thousands of Philadelphians and many thousands more throughout the country,” it said. “Tragically, while respondents have been pursuing this declaratory judgment against Safehouse, more than 3,200 people died in Philadelphia of drug overdoses—many of which could have been prevented if medical care had been immediately available through supervised consumption services.”
Safehouse also pointed out that Xavier Bacerra, the Biden administration’s secretary of health and human services, was among eight top state law enforcement officials who filed an earlier amicus brief in support of the organization’s safe injection site plan when he served as California’s attorney general.
The organization put the gravity of the case in no uncertain terms, painting a picture of how its proposed facility can save lives.
“When breathing stops, even a brief delay while waiting for medical help to arrive may result in an otherwise preventable overdose death or irreversible injury,” the petition says. “As a result, every second counts when responding to an opioid overdose; as more time elapses, the greater the risk of serious injury and death. Ensuring proximity to medical care and opioid reversal agents like the drug Naloxone at the time of consumption is therefore a critical component of efforts to prevent fatal opioid overdose.”
“Intervention by this Court is warranted to make clear that the federal law does not criminalize this essential public health and medical intervention designed to save lives from preventable overdose death,” it continues.
Safehouse argued that the appeals court’s interpretation of the law “eviscerates the intended boundaries of the statute and would criminalize the operation of legitimate businesses, charities, families, and good Samaritans that serve and reside with those suffering from addiction.”
If the Supreme Court were to take up the case and rule in favor of Safehouse, it could embolden advocates and lawmakers across the country to pursue the harm reduction policy.
The governor of Rhode Island signed a bill in July to establish a safe consumption site pilot program where people could test and use currently illicit drugs in a medically supervised environment. It became the first state in the country to legalize the harm reduction centers. It’s not clear whether the Department of Justice will seek to intervene to prevent the opening of such facilities in that state.
Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.
A similar harm reduction bill in California, sponsored by Sen. Scott Wiener (D), was approved in the state Senate in April, but further action has been delayed until 2022.
At the same time that Safehouse is turning to the Supreme Court, it also announced recently that it will be returning the the federal district court that gave it an initial 2019 victory in support of establishing a safe injection facility before it was overturned in the appeals court.
The organization is making the unique argument that the federal government’s decision to block it from providing the service violates religious freedom by subjecting participants “to criminal penalties for exercising their sincerely held religious beliefs that they have an obligation to do everything possible to preserve life and to provide shelter and care to the vulnerable, including those suffering from addiction.”
In 2018, a congressional subcommittee approved legislation to specifically prohibit Washington D.C. from using local tax dollars to help open safe consumption facilities. But that provision was not enacted and has not been reintroduced since.
A 2020 study found that people “who reported using supervised injection facilities on an at least weekly basis had a reduced risk of dying compared to those who reported less than weekly or no use of this health service.”
Read the amicus brief from the prosecutors on the Safehouse safe injection site case below:
Photo courtesy of Jernej Furman.
Former GOP Congressman Who Actually Supported Marijuana Reform Enters The Cannabis Industry
Lately it’s come to seem as if most of the former politicians who’ve entered the marijuana industry were unhelpful or downright hostile to legalization when they were in office. But on Friday, a cannabis company announced an addition to its board who disrupts that narrative: a former Republican congressman who has a consistent legislative record of cosponsoring and voting for marijuana reform measures.
The multi-state cannabis businesses Red White & Bloom Brands Inc. (RWB) is bringing on former Rep. Ryan Costello (R-PA) to help it navigate the complicated regulatory space, drawing on his experience in Congress as the company works to expand.
Costello certainly isn’t the only Republican lawmaker who’s made the transition from Capitol Hill to the cannabis market. But he is a rare example of a politician who actually embraced enacting marijuana policy changes while he was in power before standing to profit from the industry. The congressman cosponsored a variety of bills—including ones to shield states that legalize cannabis from federal interference—and supported several reform amendments.
“I’m looking forward to utilizing my 15+ years of service in government, the legal profession, and my familiarity with cannabis policy to be a strategic resource for RWB as it positions itself as a true market leading house of brands in the permitted U.S. marketplace,” Costello said in a press release.
This breaks with a trend that has increasingly frustrated advocates, where it seems the people most inclined to benefit from legalization are those who stood in the way in Congress. The best-known example of that is former GOP House Speaker John Boehner (R-OH), who’s faced criticism from activists over his anti-legalization record while in office before joining the board of marijuana company Acreage Holdings.
While Costello left Congress in 2019 prior to the historic House vote on a standalone bill to federally deschedule cannabis, there are plenty of examples of him supporting more modest reform proposals during his congressional tenure.
He was a cosponsor of legislation to protect state marijuana markets from federal intervention, promote cannabis research, support military veterans’ access to medical marijuana, protect banks that service state-legal cannabis businesses and legalize industrial hemp.
The congressman also voted in favor of floor amendments to shield all state marijuana programs from Justice Department intervention, allow Department of Veterans Affairs doctors to recommend medical cannabis and end hemp prohibition.
In that respect, he was a rare GOP lawmaker. While the issue is increasingly bipartisan among the public, that hasn’t been reflected in Congress. And now Costello is in a position to leverage his legislative experience to advance a marijuana business’s interests.
It’s an exception to the trend.
For example, Tom Price, the former U.S. Department of Health and Human Services (HHS) head under President Donald Trump, is serving as a member of the board of directors for a medical marijuana business in Georgia after he refused to take action to reclassify cannabis under federal law when he had the power to do so. Price consistently voted against marijuana reform measures while serving in Congress.
Former Rep. Steve Buyer (R-IN), who also has a long track record of opposing marijuana legalization efforts, joined a Canadian cannabis company’s board in 2019.
Earlier this month, a New York-based lobbying firm that’s headed by a former Republican U.S. senator announced that it is launching a practice focused on serving cannabis businesses. That former senator, Alfonse D’Amato, racked up a record of supporting the war on drugs while in office.
There is at least one other former GOP congressman who entered the cannabis space with a legislative record supporting marijuana reform. Former Rep. Dana Rohrabacher (R-CA), who championed cannabis reform while in Congress, became an advisory board member for a marijuana company after being voted out of office in 2018.
Separately, President Joe Biden’s pick to head up federal drug policy worked for a major marijuana business last year, according to his financial disclosure reports.
Photo courtesy of WeedPornDaily.