Lawmakers at odds, fail to agree fine print of NJ marijuana legalization

Last-minute amendments to legislation seemed set, but no consensus for Senate and Assembly
Credit: (AP Photo/Charles Krupa)
File photo: June 24, 2020, Pure Oasis, a Black-owned recreational marijuana dispensary in Boston, Mass., where recreational adult use of the drug is legal.

The day began in Trenton with great optimism for marijuana legalization believers.

After five years of fits and starts, the movement to legalize recreational marijuana was believed to be at hand. With voters overwhelmingly backing a ballot referendum on Nov. 3, Gov. Phil Murphy and the Legislature had ostensibly worked out some last-minute amendments intended to mollify a host of social justice advocates, who had derailed a vote on a bill needed to define a new marijuana industry last Thursday. Committees from both legislative houses were expected to sign off on the changes, and the legislation would be passed into law on Monday.

But like many times before, the day in the State House would end with no consensus. Instead, New Jersey’s quest for closure in legalizing marijuana grew just a bit longer, and the jury remains out as to which way it is heading.

Who can’t agree?

“The good news is that progress was made today,” said William Caruso, a former high-ranking Democratic aide, a longtime legalization advocate who heads the cannabis law practice at Archer Public Affairs. “The bad news is the governor, the Senate and the Assembly still can’t reach an agreement. And it appears this bill has gone off the rails yet again.”

Senate Budget Committee Chairman Paul Sarlo put it this way: “We have two bills that are completely not alike. They will have to be negotiated.” He said the Senate amendments were finished around 5:30 p.m., but he did not reveal in detail the nature of the changes. The committee then passed its version. And then they cancelled their floor session that had been scheduled for Monday.

“We’re moving closer to the long-overdue need to end cannabis prohibition,” said Assemblywoman Annette Quijano (D-Union), one of the bill sponsors. “So much time, effort, and thought have gone into this bill. We continue conversations, for what I believe, has produced a stronger piece of legislation with a focused eye toward social justice and equity.”

The bill was pulled last Thursday after a chorus of complaints protested the fact that none of the anticipated tax revenue had been earmarked for social justice programs.

After nearly three hours of contentious testimony, the Assembly Appropriations Committee passed an amended bill around 2 p.m. The Senate committee started its hearing around 4 p.m., two hours later than scheduled, as members and staffers were furiously editing changes into the legislation.

Where the legislative houses disagree 

The following are the latest amendments on which the Senate and Assembly differ:

  • The most important change was the addition of a sliding-scale “social justice excise fee” on growers, in addition to state and local taxes on sales. The proceeds of the new excise tax — the amount will depend on the market price — would be dedicated to minority community “impact zones” that have been most adversely affected by uneven arrests and sentences for drug charges. It would fund programs such as legal aid, drug rehabilitation, reentry for former prisoners and mentoring. The Senate bill, however, would also dedicate 70% of sales tax revenue toward impact zones.
  • Another Assembly amendment increases the initial number of licensed growers from 28 to 37, intended to assure there will be sufficient product to sell. Sarlo said the Senate version would remove the cap altogether on growers’ licenses.
  • The Senate also differed on workplace safety regulations. The Assembly version calls for the use of certified experts to make decisions and take action regarding employees who are suspected of being “high.” The Senate, on the other hand, wants to ensure that employers have more discretion and can continue to do random drug testing.

Hours of public testimony in the Assembly Appropriations Committee, however, had one social justice advocate after the next expressing strong dissatisfaction with the latest version of the bill. For a start, they complained that the amendments hadn’t even been made available for public review, and the bill was being forced through without proper scrutiny.

“We have a 200-plus-page bill, and now 166 pages of amendments which we haven’t had time to read,” said Ron Hein, co-chair of the Faith Action NJ Criminal Justice Task Force, part of the Unitarian Church in Cherry Hill.

A summary of the amendments presented by Sen. Nicholas Scutari (D-Union), the bill’s sponsor, did not placate them. And an odd moment during Scutari’s own presentation revealed just how fast the contents of his bill were changing: He couldn’t remember if the current bill permitted possession of 1 ounce of marijuana or 2 ounces.

“We have got to get this done by the end of the year,” Scutari said during the Assembly hearing. “If we don’t, we’re going to run into a myriad of other problems.”

More than two-thirds of New Jersey voters passed a referendum to amend the state Constitution to allow legalization. Still, enabling legislation is required to establish rules and regulations for the new system before legal sales can begin.

Shortcomings in the legislation

During the Assembly committee hearing, activists offered a long list of what they said were the bill’s glaring shortcomings, including vague language as to who would qualify for the excise tax revenue, that the social justice revenue isn’t guaranteed, why there is no provision for people to grow their own weed, that funds for police training should not be included, and that the state should pay for expungement fees.

Assemblyman John Burzichelli (D-Gloucester), the committee chairman, repeatedly pleaded for patience, arguing in various ways a perfect-is-the-enemy-of-good defense. “It’s not perfect, but I believe it’s really good,” he said. “As we bring this to life, it doesn’t mean this is the final version forever and forever … The legislative process is not a perfect one.”

“We’re not looking for perfection; we’re looking for justice,” replied Jason Ortiz, president of the Minority Cannabis Business Association. “Would you vote on a bill where you haven’t seen the language?”

Sarah Fajardo, policy director at ACLU-NJ, echoed Ortiz’s sentiments. “The Legislature can do more to meet its obligations to communities of color by making the social justice excise tax concrete, rather than optional,” Fajardo said. “We know through legislators’ words that racial justice is a high priority in legalization, but we need to see it as a throughline in the policies they present.”

After nearly three hours, the members passed the amended bill, 8-4, in a matter of minutes.

‘This has come a long way’

“This has come a long way in terms of adding the social equity tax,” said Rev. Charles Boyer, founder of Salvation and Social Justice, one of the bill’s loudest opponents last week.

Still, he was concerned about language around the allocation of tax revenue, noting the use of the word “may,” which he said should be changed to “shall.”

“The way it is crafted, it is at best, a possibility, not a guarantee,” Boyer said.

Burzichelli responded by saying that any shortage of funds from the excise tax would be made up from the state’s general fund.

“The Legislature has turned this relatively simple act of legalizing marijuana for personal use into an overly-complicated scheme that is ripe for abuse,” said Sen. Michael Testa, an Atlantic County Republican. “The Legislature has once again fallen into the trap of trying to do too much at once, and that never ends well.”

Lessening criminal, civil penalties

In addition to the legalization bill, lawmakers are still working out a separate bill that would eliminate criminal and civil penalties for up to 6 ounces of marijuana. The Assembly pulled that bill after the addition of an amendment that would also lower penalties for possession of psilocybin mushrooms.

The so-called magic mushroom provision is also a matter of negotiation between the two houses.

Sen. Linda Greenstein (D-Middlesex), Assistant Majority Leader, called the lack of a decriminalization bill “disappointing and shameful.”

She called for that bill to be passed and signed before the legalization bill comes up for a vote.

“We need to send a clear message: that we are about equity, we are about honesty, we are about courage,” she said.

As for Scutari, the key sponsor, he took the day in stride.

“I’m a little frustrated, but we are continuing to move the ball,” he said with a chuckle. “We’ll get there. It could be a couple of days; it could be a couple of weeks. … I thought we were gonna be done today.”