Weed Still Illegal, but NJ Prosecutors Can Drop Cases for These Reasons
Municipal Court marijuana cases can restart after Labor Day, though local prosecutors are being given guidance to consider a list of reasons not to pursue individual cases – and encouragement to do so.
Attorney General Gurbir Grewal said municipal prosecutors are not permitted to decriminalize marijuana, as Jersey City sought to do last month.
“Municipal prosecutors can contribute responsibly to progressive criminal justice reform while respecting the rule of law, including the authority of the Legislature and the courts,” Grewal said.
“Again, municipal prosecutors cannot decriminalize conduct that the Legislature has criminalized,” he said. “They cannot adopt blanket policies of non-prosecution. But they can and they must and they should strive to ensure that individual justice is done in individual cases.”
Among the factors a prosecutor is to consider when deciding whether to drop a case or seek a reduced punishment:
- A defendant’s age
- Prior criminal record
- The circumstances of the offense
- Adverse consequences for the defendant’s employment, military enlistment, immigration status, school enrollment, housing and welfare benefits
- Family financial burdens
“This is I think appropriate list of factors that we hope will guide municipal prosecutors in properly exercising their discretion not just in marijuana cases – really, in all cases before the municipal courts in this state,” Grewal said.
Jersey City Mayor Steve Fulop said the directive regarding prosecutorial discretion “is the end result that we were looking for.” He said the guidelines are pretty broad and will end most marijuana prosecutions, even though it isn’t officially decriminalization.
“A rose by another name is still a rose, right? If it gets us to where we want to be, it’s like, however you want to call it, however you want to say it, it’s fine,” Fulop said.
“Most importantly, it is going to have a positive impact on people’s lives and essentially not ruin somebody’s life for small quantities of marijuana and creating this long track record of a criminal background,” he said.
In July, after Jersey City sought to decriminalize marijuana through a policy written by the city’s chief prosecutor, Grewal blocked that and appointed a working group to study the issue. He also requested that municipal prosecutors suspend marijuana-related cases until Sept. 4.
“So the request to pause prosecutions will now expire as scheduled, and municipal court prosecutions will proceed in accordance with this guidance,” Grewal said.
“Individual municipal prosecutors can continue to seek adjournments as they see fit in their cases, based on the cases they’re dealing with,” he said.
The executive director of the American Civil Liberties Union of New Jersey, Amol Sinha, welcomed the guidance but said it “can only go so far” without a change in state law.
“Municipal prosecutors – like county prosecutors – have immense power to change the course of a person’s life for the better by using their discretion,” he said. “In this guidance, the attorney general urges municipal prosecutors to use that discretion to balance the scales of justice.”
Grewal acknowledged the guidance could be moot, or at least need to be amended, if the Legislature legalizes adult-use marijuana. Legislative leaders say such as bill could be approved by the end of September, but Grewal said he couldn’t just extend the pause in prosecutions another month.
“I don’t know what the Legislature is going to come up with, and I don’t know when they’re going to come up with their legislation,” Grewal said. “What I do know is there are a number of cases in municipal court, and they can’t be stayed indefinitely while we wait on the Legislature.”