With Marijuana Ballot Question and Expungement Reform, Marijuana Legalization via Legislation Should Stay on the Table

December 16, 2019

A constitutional amendment to legalize marijuana will be on the November 2020 ballot, following the Legislature’s passage of resolution ACR840/SCR183. The Legislature also passed a bill to reform expungement, expanding opportunities for eligible people to clear their criminal records, including for marijuana offenses.

Yet, even with the heartening support for marijuana legalization demonstrated with these two votes, the ACLU-NJ urges the Legislature to move forward with marijuana legalization through legislation during the session that begins in January 2020.
By legalizing marijuana through broad strokes rather than specific legislation, a constitutional amendment does not guarantee racial and social justice at the core of the bill. Voters will not know the final shape marijuana legalization will take in practice until after they vote, when New Jerseyans have less power to influence the discussion.

“A constitutional amendment asks voters to make a decision first and find out the details later, undermining the principles of a representative, participatory democracy,” said ACLU-NJ Executive Director Amol Sinha. “Above anything else, racial and social justice provisions addressing the destruction wrought by the drug war must be at the forefront of any plan to legalize marijuana, and a constitutional amendment- while signaling welcome progress towards legalization- cannot provide that guarantee. During the time it takes to get the question onto the ballot and to pass follow-up legislation to actually establish legalization, New Jersey will make 36,000 more unnecessary arrests per year – all for a substance most New Jerseyans believe should be legal. We cannot prolong this civil rights crisis any longer.”

The process of amending the Constitution requires several distinct legislative steps, in addition to the ballot question. In the upcoming 2020-2021 legislative session, the Legislature will have to pass a second resolution to include a constitutional amendment on the ballot before the question can appear in the November election. If voters approve the question, the Legislature must pass additional follow-up legislation to decide on the details of legalization.

Critically, the Legislature also passed expungement reform, which had previously been part of a package of reforms included in marijuana legalization legislation. The bill’s clean slate provision creates a path toward an automated process to replace a system that often resulted in people eligible for expungement never getting their records cleared.

“New Jersey now has the potential to transform a process that currently lets people slip through the cracks into a national model for justice and fairness,” said Ami Kachalia, ACLU-NJ Campaign Strategist. “The ACLU-NJ thanks the legislative leadership and the bill’s sponsors and supporters for taking this important step to repair New Jersey’s onerous expungement system.”

Until marijuana is legalized, advocates and lawmakers have proposed decriminalization as an interim stopgap intended to halt some of the state’s marijuana-related arrests. If the Legislature fails to pursue marijuana-legalization legislation in the 2020-2021 legislative session, the ACLU-NJ calls for decriminalization legislation that removes all criminal and civil fines and penalties for marijuana related offenses.

For decriminalization to be a meaningful social justice policy, it must remove all civil penalties and fines, expunge marijuana-related convictions, dismiss pending charges, and vacate sentences for people who are currently incarcerated, on probation, or parole for marijuana offenses. Decriminalization would fail to create a regulatory system to monitor for safety, accurately label products, or prevent the sale of cannabis to minors, circumscribing the policy only as a temporary step until New Jersey can fully realize marijuana legalization.

“Decriminalization without meaningful provisions to remove all penalties for marijuana use would still perpetuate many of the harms of prohibition,” said Sarah Fajardo, ACLU-NJ Policy Director. “Through legislation, New Jersey can immediately create a framework to protect public health and public safety, strengthen our economy, and advance racial and social justice by beginning to address the harms of the drug war. A constitutional amendment puts those critical items in limbo, and decriminalization is a partial answer. We need legalization, through legislation, and any stopgap decriminalization bill must include meaningful social justice provisions.”

Arrests for marijuana possession in New Jersey have skyrocketed since 2013, a year that, with 27,923 marijuana-related arrests, initially held the state’s record for the most annual marijuana possession arrests. In 2017, New Jersey made 37,623 marijuana-related arrests, amounting to one every 14 minutes on average, as documented in an ACLU-NJ data brief released in November 2019. In New Jersey, Black people are arrested for marijuana possession at three times the rate of white people, with even higher disparities in certain counties.

A bill still pending before the Legislature, which advanced in committees of both chambers this session, S2703/A4497, would if passed make New Jersey one of the first states to circumvent problems other states experienced as a result of legalizing through a ballot measure. This legalization bill before the Legislature would expedite expungement for marijuana-related convictions, vacate current sentences, and dismiss pending charges. S2703/A4497 includes non-discrimination measures for people with past marijuana offenses, along with a business-development commission focused on opportunities for women, people of color, and veterans with disabilities in the marijuana industry. The ACLU-NJ and other advocates will continue to urge the Legislature to advance such reforms in the coming 2020-2021 session.

Category: Criminal Justice

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