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Legislative action meant to end arrests for possessing marijuana came to a halt this week, but wide ranging arrests for even minor offenses continue.
Police are following the law as written, booking people for offenses as minor as possession of one joint, attorneys say. And prosecutors are using a wide array of discretion in how they handle the cases in court; some levying fines with guilty pleas, and others dismissing the cases.
It’s all happening as lawmakers fight over marijuana legislation.
A provision that would reduce penalties for having psychedelic mushrooms has derailed a marijuana decriminalization bill in the state Assembly, while efforts to launch a legal marijuana industry hit road bumps Thursday.
The bill to set the legal market for marijuana ran into trouble Thursday when committees in both the Senate and Assembly advanced bills that differed on the issue of limiting how many marijuana growers will be allowed to be licensed. The Senate wants the limits gone, while the Assembly hopes to see only 37 come on line during the early years of legalization.
Two sources with knowledge of the negotiations who were not authorized to speak publicly said issues blocking both bills are related: the Senate removed the limits on licenses in its version of the bill to use as leverage against the Assembly, which has not passed the decriminalization bill due to the concerns lessening prison sentences for possessing mushrooms.
As negotiations continue behind closed doors in Trenton, people face the very real legal consequences of marijuana possession.
“We get calls every day” from people facing new charges, said Jef Henninger, a criminal defense attorney in Tinton Falls. “A lot of people are confused. A lot of people think marijuana is legal.”
Voters approved a ballot question to legalize marijuana on Nov. 3. But that didn’t immediately make weed legal. Until lawmakers pass bills to decriminalize it or to launch a marijuana industry, police can still arrest people for possessing small amounts.
And defense attorneys say police have done just that.
Attorney General Gurbir S. Grewal put out a statement the day after the election reminding people of the current laws that prohibit marijuana use. But he also called up a 2018 statement that gave local law enforcement and prosecutors broad discretion to handle marijuana offenses.
That meant municipal prosecutors should consider offenses on a case-by-case basis and weigh how a conviction would affect a person’s access to employment, housing and schooling, he said at the time.
That vague directive led to inconsistencies across the state’s more than 500 municipal courts and police departments.
“It really is guidance that’s too little too late,” said Jim Cohen, a professor of law at the Fordham University School of Law. “In this context, you’re going to have built-in unfairness. There may well be a flock of people who don’t really know what their rights are, don’t know that they should just say, ‘I’m pleading not guilty, give me a month.’”
But even the attorneys do not know what to expect when they walk into a courtroom with a client facing a possession charge.
“We see such a variety of outcomes. We have prosecutors that are willing to give us just a fine. There’s prosecutors that are fighting this tooth and nail,” Henninger said, noting his law firm has received an average of three or four calls a day for new marijuana charges since the vote. “I’m really just amazed by that, because my hope is that, at any moment, the attorney general is going to provide some guidance that will make that all pointless.”
The Attorney General’s Office could technically issue a directive for police to halt arrests. But Gov. Phil Murphy, who campaigned for office on the promise of legalizing marijuana and three years later celebrated the victory, has not pushed the office to do so.
“As Attorney General Grewal indicated in his November 4 statement, he expects to issue additional guidance soon, once we have direction from the Legislature,” a spokesman for Grewal said in a statement. “Meanwhile, the Attorney General has emphasized to law enforcement that they have broad discretion in handling low-level marijuana offenses.”
Lawmakers had hoped to quickly pass a bill to decriminalize possession of up to six ounces of marijuana, as well as distribution of one ounce. The Senate voted 29-4 in favor of it Monday, but the Assembly pulled a vote on the bill the same day after some lawmakers became concerned with an amendment that would reduce penalties for possessing psilocybin, or “magic” mushrooms.
Negotiations have continued into the week, and the Assembly has not yet rescheduled the vote.
Monday’s split came after months of delays on the bill. Sen Teresa Ruiz, D-Essex, introduced it in June, but lawmakers did not hold a hearing on it until after the election. Sen. Nicholas Scutari, D-Union, had said he did not want to jeopardize legalization efforts by decriminalizing marijuana first.
Sen. Tereasa Ruiz, D-Essex, who sponsored the decriminalization bill, said Thursday it was “disappointing” and shameful that the Legislature has not yet moved the bill.
“I would hope that we do not move this enabling piece of legislation until there is a final vote on the decrim bill from both houses and that chapter is put to rest to protect people who have been disenfranchised for so many years,” she said during the hearing on the enabling legislation (S21).
If that current decriminalization became law, it would stop many of the arrests. Current statutes break possession of marijuana into two categories: less than 50 grams, or about two ounces, and more than 50 grams.
Data from the New Jersey Judiciary shows municipal courts added 3,281 charges for possession of less than 50 grams of marijuana in October. That’s an average of 105 arrests each day, a rate that has not fallen from averages in recent years.
Courts also dismissed 739 of the cases that month, according to the data. Charges for the first two weeks of November have yet to be compiled.
Decriminalizing marijuana in New Jersey will also require a culture shift among law enforcement, said Jason Williams, an assistant professor of justice studies at Montclair State University.
“From the very beginning, the police departments around the country were against it,” he said. “They are also likely to push these falsehoods, that legalizing it will bring about more crime and such. These competing ideologies between law enforcement and the aspirations of the people and the Legislature is I think what holds up change, at least on the ground.”
Carmine Villani, a defense attorney with Villani & DeLeuca P.C. who has worked on marijuana cases for two decades, said the vast majority of offenses fall far below the 50 gram threshold. It’s a joint, some seeds, residue in smoking paraphernalia or maybe two or three grams that police find on many of his clients, he said.
He said he has noticed an “ebb and flow” of cases, rising and falling as lawmakers have gotten closer, and then further, from legalizing marijuana in recent years.
Villani said his office has received a few calls from people arrested over the past weekend. While the numbers have dropped a bit in recent weeks, they haven’t disappeared. And he said he still sees some municipal prosecutors arguing for harsh penalties.
“You would think there’s been a change in tone, but there’s not,” said Villani, whose office in Point Pleasant Beach. “Even a few weeks before [the election], I was still getting the same resistance as I was six months before. That’s what I’ve advised my clients now: For my pending cases, we’re going to wait and see. They’re all asking for advice and I really can’t provide great advice.”
No one from the New Jersey State Association of Chiefs of Police was available to comment for this report, according to a spokeswoman.
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Amanda Hoover may be reached at ahoover@njadvancemedia.com. Follow her on Twitter @amandahoovernj.