While cities are barred from decriminalizing marijuana on their own, municipal prosecutors in New Jersey do have official permission to reduce or dismiss outright certain low-level cannabis cases, according to guidance the state attorney general issued on Wednesday.
AG guidance memo on marijuana developed by working group that included county & municipal prosecutors, police chiefs, public defenders, NAACP & ACLU. For the full @GurbirGrewalNJ memo, click here: https://t.co/oQzflwTSrA
— AG Gurbir Grewal (@NewJerseyOAG) August 29, 2018
Marijuana policy reform is speeding along in the Garden State, where an overwhelming majority of voters said they support full legalization in a poll last week.
Gov. Phil Murphy (D) has vowed to legalize marijuana as soon as state lawmakers will let him (and, for their part, lawmakers say they have the votes to do it as soon as next month). In the meantime, Murphy has rapidly expanded the state’s medical cannabis program, which was thwarted and stymied for years under his predecessor, Chris Christie (R).
At the moment in New Jersey, possession of less than 50 grams of marijuana—slightly less than two ounces—or drug paraphernalia is a “disorderly persons offense.” Such cases are referred to local municipal court rather than state Superior Court, but can still carry penalties including jail time for repeat offenders, according to experts.
Encouraged by Murphy and legalization pushes in other states—and unwilling to wait for the state Legislature to legalize—local officials in Jersey City recently moved to decriminalize marijuana.
A nice thought, but that’s something they aren’t legally allowed to do, state Attorney General Gurbir Grewal said earlier this month.
“Municipalities cannot decriminalize conduct that the Legislature has criminalized,” Grewal said, according to NJ.com.
Likewise, municipal prosecutors can’t selectively prosecute. Municipal courts accept “for filing ‘every complaint made by any person,’” Grewal pointed out.
But what they can do is consider the “facts and applicable law in each individual case”—and if they allow, to significantly reduce any penalties or dismiss the case outright.
“Prosecutors necessarily exercise some discretion in carrying out the duties of the office,” Grewal wrote in a new memo to local prosecutors on Wednesday. “A prosecutor’s discretion is not unlimited, however, and when a municipal prosecutor exceeds the scope of his or her discretion, the County Prosecutor or the Attorney General may intervene.”
“To the extent permitted by law, however, a municipal prosecutor should consider the impact of adverse collateral consequences of a conviction based on the specific circumstances or factors presented by the defendant or elicited by the court,” the attorney general wrote.
Grewal’s limited amnesty applies only to municipal courts, and ergo only to marijuana possession cases.
More serious offenses, such as those involving cultivation for sale and trafficking, will continue to go to higher courts.
And it also relies on prosecutors’ goodwill, and willingness to consider factors like whether a defendant stands to lose a job, housing, or placement in school because of punishment for marijuana possession.
Still, civil liberties advocates praised Grewal’s memo as an “important moment,” and “one step further” towards full legalization.
‘Municipal prosecutors – like county prosecutors – have immense power to change the course of a person’s life for the better by using their discretion,” said Amol Sinha, the executive director of the New Jersey chapter of the American Civil Liberties Union, in comments to NJ.com. “In this guidance, the Attorney General urges municipal prosecutors to use that discretion to balance the scales of justice.”
In the meantime, the move may end up being moot soon if lawmakers are correct that they have enough votes to legalize cannabis in September.
Marijuana Legalization Measure Advances One Step In South Dakota
South Dakota’s attorney general filed an official explanation of a proposed ballot measure to legalize marijuana on Friday.
While separate organizations are working to get a medical cannabis-focused initiative on the state’s 2020 ballot, activists behind this measure are hoping to incorporate recreational legalization, medical marijuana reform and hemp into one package.
Adult-use legalization would be accomplished through a constitutional amendment under the initiative, which would separately require the legislature to pass legislation creating rules for medical cannabis and hemp.
South Dakota Attorney General releases explanation on proposed constitutional amendment to legalize, regulate, and tax marijuana; to require passage of laws regarding hemp as well as laws regarding marijuana for medical use. Read it here: https://t.co/k33buSKjIJ pic.twitter.com/pEG0RxbDj9
— SD Attorney General (@SDAttorneyGen) August 16, 2019
“The constitutional amendment legalizes the possession, use, transport, and distribution of marijuana and marijuana paraphernalia by people age 21 and older. Individuals may possess or distribute one ounce or less of marijuana,” Attorney General Jason Ravnsborg (R) wrote. “Marijuana plants and marijuana produced from those plants may also be possessed under certain conditions.”
The South Dakota Department of Revenue would be responsible for issuing licenses for cannabis cultivators, manufacturers, testing facilities and retailers. Individual jurisdictions would be able to opt out of allowing such facilities in their areas.
“The Department must enact rules to implement and enforce this amendment,” the explanation states. “The amendment requires the Legislature to pass laws regarding medical use of marijuana. The amendment does not legalize hemp; it requires the Legislature to pass laws regulating the cultivation, processing, and sale of hemp.”
The initiative calls for a 15 percent excise tax on marijuana sales. That revenue would be used to fund the Department of Revenue’s implementation and regulation of the legal cannabis system, with remaining tax dollars going toward public education and the state general fund.
Ravnsborg said that judicial clarification of the amendment “may be necessary” and notes that marijuana “remains illegal under Federal law.”
The attorney general issued a similar explanation of a proposed constitutional amendment to legalize medical cannabis earlier this month.
This latest move comes one day after advocacy organization New Approach South Dakota announced that their medical marijuana initiative was certified, enabling them to begin the signature gathering process.
Several other cannabis initiatives are in the process of being certified in the state, according to the attorney general’s website. In order to place constitutional amendments on the ballot, activists must collect 33,921 valid signatures from voters.
South Dakota is one of the last remaining states in the U.S. that has not legalized marijuana for any purposes.
Photo courtesy of Brian Shamblen.
Elizabeth Warren’s Plan For Indian Tribes Includes Marijuana Legalization
Sen. Elizabeth Warren (D-MA) unveiled a plan on Friday that’s aimed at holding the federal government accountable for following through on its obligations to Native American tribes, and that includes ensuring that tribal marijuana programs are protected against federal intervention.
The plan emphasized Warren’s support for a bill she filed earlier this year that “would protect cannabis laws and policies that tribal nations adopted for themselves.”
The 2020 Democratic presidential candidate, who has faced criticism over claims of Native American heritage, pointed to federal reports showing that tribal programs generally have not received adequate funding and said it is imperative that legislation be enacted to “provide resources for housing, education, health care, self-determination, and public safety” for those communities.
To that end, Warren is planning to introduce a bill called the “Honoring Promises to Native Nations Act” alongside Rep. Deb Haaland (D-NM), co-chair of the Congressional Native American Caucus. Before filing, however, the lawmakers are soliciting input on how best to draft the legislation, and are accepting written testimony until September 30.
While the proposed legislation itself doesn’t currently include marijuana-specific provisions, a press release and blog post on the topic address the senator’s sponsorship of the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which would allow tribal communities and states to set their own cannabis policies without Justice Department interference.
In order to provide economic opportunities to Native people, that “requires streamlining and removing unnecessary administrative barriers that impede economic growth on Tribal lands, respecting tribal jurisdiction over tribal businesses, and promoting forward-looking efforts to ensure full access to new and emerging economic opportunities.”
“For example, while not every tribe is interested in the economic opportunities associated with changing laws around marijuana, a number of Tribal Nations view cannabis as an important opportunity for economic development,” Warren’s campaign blog post states.
“I support full marijuana legalization, and have also introduced and worked on a bipartisan basis to advance the STATES Act, a proposal that would at a minimum safeguard the ability of states, territories, and Tribal Nations, to make their own marijuana policies,” she wrote.
.@RepDebHaaland & I invite feedback about this proposal & look forward to working closely with tribal nations & citizens, experts, & other stakeholders to advance legislation in Congress that honors the United States’ promises to Native peoples. https://t.co/qc1fkBGb3I
— Elizabeth Warren (@SenWarren) August 16, 2019
A separate press release on Warren’s Senate website also touts her support for the STATES Act, saying she “worked hard to ensure” that it included tribal protections.
“It’s beyond time to make good on America’s responsibilities to Native peoples, and that is why I’m working with Congresswoman Haaland to draft legislation that will ensure the federal government lives up to its obligations and will empower tribal governments to address the needs of their citizens,” Warren said of the overall tribal plan. “We look forward to working closely with tribal nations to advance legislation that honors the United States’ promises to Native peoples.”
In an email blast to her campaign list, Warren included “a set of additional ideas to uphold the federal government’s trust and treaty obligations with Tribal Nations and to empower Native communities,” which includes her marijuana proposal:
“New economic opportunities: We also need to respect tribal jurisdiction over tribal businesses and promote forward-looking efforts to ensure full access to new economic opportunities. For example, a number of Tribal Nations view cannabis as an important economic opportunity. I support full marijuana legalization and have advanced the STATES Act, a proposal that would safeguard the ability of Tribal Nations to make their own marijuana policies.”
There’s increased interest in ensuring that Native populations receive the same benefits and protections as states as it concerns cannabis legislation.
In June, the House passed a spending bill that included a rider stipulating that Native American marijuana programs couldn’t be infringed upon by the Justice Department. And a GOP representative filed a bill in March that would provide similar protections.
FBI Seeks Tips On Marijuana Industry Corruption
The Federal Bureau of Investigation (FBI) is actively seeking tips on public corruption related to the marijuana industry, it announced on Thursday.
“States require licenses to grow and sell the drug—opening the possibility for public officials to become susceptible to bribes in exchange for those licenses,” FBI Public Affairs Specialist Mollie Halpern said on a short podcast the bureau released. “The corruption is more prevalent in western states where the licensing is decentralized—meaning the level of corruption can span from the highest to the lowest level of public officials.”
(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)