Cannabis Legalization: New Jersey Beats New York to the Punch

After a frustrating delay and deadlock in the statehouse, New Jersey finally answered the will of the voters in last year’s referendum and passed enabling legislation to create a regulated adult-use cannabis market. Activists are still dissatisfied with limits — most significantly, no provision for homegrown — and have concerns about how a “recreational” market will impact medical users. But the belated move is being hailed as a victory that ups the pressure on neighboring New York to follow through on pledges to legalize — and even on the federal government.

The Garden State’s Gov. Phil Murphy on Feb. 22 signed legislation that had actually been promised by the first of the year, removing penalties for personal cannabis possession and laying the groundwork for an above-board industry and market.

The legislation was mandated by Public Question 1, which was approved by the state’s voters last November. Passing by more than 67%, it actually amended the state constitution to allow for a legal cannabis market.

Three-Piece Legislation

The legislative package finally came in the form of three bills. The centerpiece, known in the Assembly as A21 and in the Senate as S21, is the New Jersey Cannabis Regulatory, Enforcement Assistance & Marketplace Modernization Act. This establishes the framework for a market, whereby those 21 or over will be able to legally purchase up to one ounce of cannabis.

Retail purchases are to be subject to the general state sales tax, with localities given the option to impose an additional 2% tax.

Next in line is A1897, which media accounts are calling a “decriminalization” law, although it is more properly rendered a depenalization law. It removes all penalties — civil or criminal — for possession of up to 170 grams (about six ounces) of herbaceous cannabis or five grams of “cannabis resin” (hashish). Penalties are also removed for the transfer of up to one ounce, and criminal penalties are reduced for activities involving larger quantities (more than one ounce but less than five pounds).

The contentious issue that held up progress in the Legislature was use by those under 21. In fact, Murphy had been ready to sign the legalization and depenalization bills in December, when he caved to those calling for clear penalties for underage youth and sent the package back to the Legislature for rewrite. This resulted in a third piece of the package, a “cleanup bill” (A5342 or S3454), to clarify this question and break the deadlock.

Contention Over Youth Use

A5342 or S3454 was conceived as a compromise measure, balancing the concerns of those who fear underage use with those who fear continued criminalization of youth. The law provides for a series of alternative measures to either criminal penalties or fines for those under 21 who are caught with cannabis. These measures entailed a written warning for the first offense, parental notification on a second offense, and possible mandatory counseling or community service for subsequent offenses. This law also bars police from conducting searches based solely on the smell of cannabis.

Removal of criminal penalties for youth was demanded by members of the Legislative Black Caucus — and opposed by conservative Republicans and the state police union. The Policemen’s Benevolent Association complained in a statement: “Underage users of marijuana will be free to smoke it anywhere, including in places the bill says is illegal, because merely stopping a person to enforce the law is now illegal for police.”

Amol Sinha of the New Jersey ACLU agreed that elimination of the smell pretext for police stops has far-reaching implications —  but was openly enthused. He told the Gothamist news site that the provision “is going to change the face of policing as we know it.”

A guidance to the state’s police forces has been issued by Attorney General Gurbir Grewal, instructing officers to desist from small-scale “marijuana” arrests. A similar guidance has been issued to prosecutors, instructing them to dismiss all such charges.

Equity Provisions

The new framework for a legal market is consciously crafted to address social injustices associated with cannabis prohibition. Seventy percent of the revenue derived from taxes on retail cannabis sales, as well all revenues from an excise tax on cultivators, will be earmarked for investment in communities that have been disproportionately impacted by the war on drugs. These so-called Impact Zones are largely communities of color that have also traditionally suffered from lack of investment. The law also provides incentives to award retail licenses to individuals who live in the Impact Zones.

An ACLU study released last April found that Black New Jersey residents were 3.5 times more likely to be arrested for cannabis than white residents, despite using the substance at roughly equal rates.

And these arrests continued as the legislation was held up in Trenton. Over 6,000 were arrested for cannabis-related violations in the months since Public Question 1 was passed; and in 2021, police statewide have already issued more than 2,000 charges for minor cannabis possession.

An analysis of nationwide arrest data published in 2018 found that New Jersey ranked third in the nation in cannabis arrests — second only to Wyoming in per capita terms. Jon Gettman, a criminal justice professor at Virginia’s Shenandoah University who analyzed FBI arrest data for the study, made an obvious observation on the racial disparity in those arrests. “When you have greater police activity in a certain neighborhood … you’re going to have more marijuana arrests,” he told New Jersey’s Advance Media.

The depenalization law, A1897, includes provisions under which many convictions from past cannabis arrests can be expunged.

“Our current marijuana prohibition laws have failed every test of social justice, which is why for years I’ve strongly supported the legalization of adult-use cannabis,” Murphy said upon signing the package into law. “Maintaining a status quo that allows tens of thousands, disproportionately people of color, to be arrested in New Jersey each year for low-level drug offenses is unjust and indefensible.”

The governor added: “This legislation will establish an industry that brings equity and economic opportunity to our communities, while establishing minimum standards for safe products and allowing law enforcement to focus their resources on real public safety matters. Today, we’re taking a monumental step forward to reduce racial disparities in our criminal justice system, while building a promising new industry and standing on the right side of history.”

Waiting on the Cannabis Regulatory Commission

Murphy has informally set a six-month timeframe for the first legal sales, although many advocates fear this could prove unduly optimistic. A long-awaited step was taken Feb. 25, when Murphy’s office made its appointment to the final outstanding seat of the five-member Cannabis Regulatory Commission, which is to oversee the new legal industry.

This body is to be chaired by Jeff Brown, who is moving over from his previous position of heading the Division of Medical Marijuana at the sate Health Department. Activists were heartened by the appointment, announced in November, of Diana Houenou to sit on the Commission. Houenou, a Black woman, is a veteran ACLU attorney and longtime fighter for social and racial justice. But none of the five seats are to be held by a Black man. (Jeff Brown is white, and the remaining seats are to be held by a Latina, a Latino man, and a white woman.)

This has led to some dissent. Rev. Dr. Charles Boyer of Woodbury, founder of the faith-based group Salvation & Social Justice, told Gothamist: “There’s no one on the commission who has lived experience with the brutalities of the drug war. There’s no one here who knows what it has been like to have been arrested or incarcerated. There’s no one here who was ever in the underground market.”

The Commission has six months to draft regulations for the new industry. Then there will be a public comment period before the regs are formally promulgated. The CRC will then issue requests for applications (RFAs) for licenses to cultivate, process, and run adult-use retail outlets.

Will Medical Supply Be Protected?

Existing medical marijuana dispensaries, officially designated Alternative Treatment Centers (ATCs), will be able to begin sales to the adult-use market as soon as the regs take effect. But first they will need to prove that they have enough supply to cover their medical patients. And many have already been struggling just to meet this demand — which has some medical users worried.

New Jersey has just 13 ATCs statewide, to meet the needs of 100,000 registered patients. And neither the new legislative package nor the 2010 Compassionate Use Medical Marijuana Act (CUMMA) include any provisions for home cultivation.

Ken Wolski, executive director of the Coalition for Medical Marijuana/New Jersey (CMMNJ) is promoting an online petition calling on the Legislature to pass a measure allowing registered patients to grow six cannabis plants at home. It has so far accrued 2,800 electronic signatures, out of a goal of 3,000.

Speaking to Project CBD, Wolski calls this a needed measure to “democratize access to the medical benefits of marijuana.” He says it would also “do away with the disparities in access to these medical benefits,” noting that New Jersey’s inner cities have been underserved by the ATCs.

No Homegrown in the Garden State

With home cultivation, he adds, medical users “will not have to be concerned about the pharmaceutical or health insurance industries and [patients] can have access to particular strains that are beneficial to them. Because now the ATCs can impose limits on sales of a particular strain. We can empower people to produce their own medicine and titrate it to control whatever symptoms they are experiencing — whether it is anxiety or PTSD or chronic pain.”

Wolski sees this question as linked to the general disparity in health outcomes for New Jersey residents. The average age of death for African Americans in the state is 67.8, compared to 66.8 for Hispanics and 77.4 for whites, according to New Jersey State Health Assessment Data.

But home cultivation is unlikely to be legalized before the adult-use market comes on line — which raises dilemmas for medical users. “The ATCs are saying they are going to vigorously expand their product base, they are anticipating meeting the needs of the adult market,” Wolski says. “Meanwhile, patients are still complaining of shortages or unavailable strains, or arbitrary limits imposed on purchases — like a quarter ounce of their favorite strain.”

Similar fears are voiced by Marianne Bays, vice president of the New Jersey CannaBusiness Association. “As an industry, the ATCs are not meeting needs of patients,” she tells Project CBD.

“As soon as they turn their attention to recreational use, who is going supply to the medical users? Will they be diverting product from patients? I think the medical program needs to be expanded first.”

Cyber-Bureaucratic Blockage

In fact, 24 new ATCs were supposed to be licensed in 2018, but the process was held up by litigation, with eight would-be applicants saying a cyber-glitch in the Health Department website prevented them from uploading their forms. The issue was only resolved this Feb. 18, when a state appellate court ruled that one of the eight plaintiffs had indeed been unfairly rejected.  With this ruling, the court lifted a stay that had prevented the Health Department from processing all 146 applications.

The long-delayed process is finally set to move ahead. And while the existing 13 ATCs are all “vertically integrated” — that is, responsible for the whole operation, from seed to sale — the 24 now coming online need not be. Under new Health Department regs, they can be specialized in cultivation, processing, or retail sales.

Even with the new outlets coming on line, patients may still face challenges. “It could still be an hour ride for some people to get to an ATC,” says Marianne Bays. “And then, if they don’t have the strain you want, another hour’s drive.”

The state’s Jake Honig Law, signed by Murphy in 2019, allows for home delivery of medical marijuana, but the Health Department has still not moved to issue the enacting regulations. Named after a brain cancer patient who died the previous year, the law also allows healthcare facilities such as hospitals and nursing homes to designate “institutional caregivers” to provide cannabis for patients — a pressing concern for many patients, and more so in the age of COVID-19. But this is another provision that is yet to be put into practice.

The rules to be drafted by the Cannabis Regulatory Commission may see progress on enacting these measures.

Pseudo-Rescheduling?

Another area of contention is whether New Jersey has actually descheduled cannabis with the new legislative package. The state’s Controlled Substances Act (passed in 1970, to conform with that year’s federal law of the same name) adopts the international system for “schedules” of drugs and psychoactive agents — with cannabis in the most restrictive category, Schedule One. The state Attorney General’s Division of Consumer Affairs is empowered to determine the schedule of controlled substances — or to change them. And one activist who was actually serving a life term for marijuana launched a campaign from his prison cell to put this legal power to the test.

Convicted 20 years earlier for marijuana trafficking under the state’s “drug kingpin” statute, Steven Kadonsky in 2014 petitioned the Consumer Affairs Division to reschedule cannabis, asserting that this was implicitly mandated by passage of CUMMA, the 2010 medical marijuana law. When the Division dismissed his petition on grounds that state law must conform to federal, Kadonsky challenged this in the courts. In November 2017, a state Appellate Court ruled in his favor, finding that Consumer Affairs had erred in dismissing his petition. The court ordered the agency to reconsider its scheduling of cannabis for the “post-CUMMA era.” Consumer Affairs held public hearings on the question the following year.

Kadonsky was released on parole in 2020, just in time to testify before the state Senate in favor of the new legalization package. Has he achieved his long-sought victory with Murphy’s signature on the package?

Maybe, but maybe not. The preamble of A21/S21 specifically states that the law “removes marijuana as Schedule One drug.” However, a close reading of the text reveals that tetrahydrocannabinol (THC) itself is excluded from this descheduling when not in products or quantities covered by the law. Somewhat absurdly, the same chemical compound can be either Schedule One or not scheduled at all, depending on whether it is in a one-gram pre-rolled joint purchased at a licensed outlet, or a one-pound brick on the illicit market.

New York Next?

New Jersey and its more imposing neighbor New York have been in a race to legalization since their respective Democratic governors each embraced the cause three years ago. But New Jersey has always been in the lead. Murphy campaigned on a pledge to legalize in 2017, after the decidedly cannabis-unfriendly rule of his Republican predecessor Chris Christie (who sacrificed his early support for the medical marijuana program to his presidential ambitions, and moved to limit it). New York’s Gov. Andrew Cuomo only came around on the question in late 2018, after he faced a primary challenge from the progressive Cynthia Nixon.

Since then, it has been a frustrating ride for Empire State activists. They had long been pushing for the Marijuana Reform & Taxation Act (MRTA), but Cuomo introduced his own, more restrictive Cannabis Regulation & Taxation Act (CRTA) in 2019, dividing lawmakers in Albany. He grandstanded on the issue, even broaching a cannabis “common market” with other Northeast states that have legalized, or were moving toward legalization — an implicit challenge to federal prohibition. But activists were skeptical, recalling the highly restrictive medical marijuana bill he signed in 2014 — which does not even allow herbaceous cannabis (only extracts, tinctures, and such).

In June 2019, New York cannabis campaigners were dealt a bitter disappointment as the legalization effort died in the Legislature before the session closed. The following January, Cuomo pledged legal cannabis in 2020, but this was derailed by the COVID-19 pandemic.

With the victory in New Jersey, activists in New York are reviving calls for speedy action on the MRTA — which, thanks to the state’s two-year legislative cycle, does not need to be re-introduced.

Melissa Moore, New York State director for the Drug Policy Alliance, said in a statement: “Now is the time to build on our neighbor’s success… We urge swift passage of the MRTA to secure justice, jobs, and equity for millions of New Yorkers and restitution for New York communities most harmed by the war on drugs.”

The Drug Policy Alliance also joined with the New York Medical Cannabis Industry Association and New York Cannabis Growers & Processors Association to issue a joint statement calling for legalization “without further delay” — and making clear that their support was for the bill activists had long been fighting for, not the flawed version introduced by Cuomo:

“With New York slated to become one of the largest and most consequential legal cannabis markets in the nation, we have an opportunity to set the global standard for adult-use regulation,” the statement said. “Comprehensive legalization provides the framework to create statewide economic growth, begin to remedy decades of disproportionate harm to communities of color, and establish an equitable marketplace … The Governor’s proposed Cannabis Regulation & Taxation Act (CRTA) misses the mark in setting this standard and, in some ways, further perpetuates the harms of prohibition. It also fails to address the urgent need to improve access for medical marijuana patients. The Marijuana Regulation & Taxation Act (MRTA), proposed by Senator Liz Krueger and Assembly Majority Leader Crystal Peoples-Stokes, is currently the best approach to legalize adult-use cannabis for hard-hit communities, our economy, and the people of New York.”

As New Jersey Goes, So Goes the Nation?

While New York dreams of serving as a national model, many are already looking to New Jersey as exactly that. Among these is the Garden State’s US Sen. Cory Booker, who said in his own statement upon passage of the legalization package: “Today is a historic day, and I applaud Gov. Murphy, the legislature, and the many advocates for racial and social justice whose leadership is ensuring that New Jersey is at the forefront of equitable marijuana legalization policy. I will continue to work with my colleagues in the Senate to end the federal marijuana prohibition so we can finally begin healing the wounds of decades of injustice.”

These sentiments are echoed by medical cannabis activist Ken Wolski. “We’re going to make sure that social justice will be a hallmark of the program in our state. This means repairing communities that have been damaged by this war on drugs,” he tells Project CBD. “New York is gonna do it soon. And the rest of the country will be affected by what we’re doing here in New Jersey.”

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Bill Weinberg, a Project CBD contributing writer, is a 30-year veteran journalist in the fields of drug policy, ecology and indigenous peoples. He is a former news editor at High Times magazine and produces the websites CounterVortex.org and Global Ganja Report. © Copyright, Project CBD. May not be reprinted without permission.

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