Weed may now be legal but legislative tinkering and political fights still ahead

Murphy signs legislation to legalize marijuana for adults in NJ. Questions linger as to how that will work
Credit: (Edwin J. Torres/New Jersey Governor's Office via AP)
Feb. 22,. 20021, Gov. Phil Murphy in Trenton as he signed into law legislation to set up a recreational marijuana marketplace in New Jersey

What was originally considered to be a slam-dunk quickly bogged down into three tortuous years of fits and starts. Some chalked up that delay to Trenton’s version of the democratic process, while others called it a baffling case study in excessive political gaucherie.

But the victory finally arrived Monday: Minutes before noon, after a series of blown deadlines, Gov. Phil Murphy signed legislation that legalized marijuana for adult recreational use, making New Jersey the first in the region and the 13th state in the nation to do so.

In a final flurry of activity in the morning, both houses of the Legislature approved a critical “cleanup” bill demanded by Murphy that specifies penalties for minors caught with marijuana. Murphy promptly signed it, along with the two cannabis bills that have been sitting on his desk for 45 days — one that authorizes a legal marijuana industry and the other that decriminalizes its possession.

As jubilant and relieved as the mood among Democrats was Monday, the thorny task of building a viable $2 billion cannabis industry through a lens of social justice has now just begun. Initial legal sales of marijuana and associated products like hashish are not expected until next year. A number of serious challenges and political battles await.

Monday’s action ends a crusade that began in earnest as a 2017 campaign promise by Murphy, a Democrat, aimed at ending the social and racial injustices marijuana laws have incurred disparately in Black and brown communities. But the legalization bill he promised in his first 100 days in office came up short in legislative votes, even though Democrats controlled both houses. Lawmakers gave up and asked the voters to decide, and in November they overwhelmingly approved a constitutional amendment to legalize recreational marijuana, effective Jan 1. Democratic lawmakers still could not reach an agreement on social justice provisions for the enabling legislation. The bill was posted and pulled several times until it was finally passed on Dec. 17.

But Murphy then noticed contradictory language regarding penalties for minors and demanded the cleanup bill.

Scutari: ‘New era of social justice’

Sen. Nicholas Scutari (D-Union), the bill’s lead sponsor, called Monday’s signing “a new era of social justice.”

“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,” Murphy said.

To do that, a new Cannabis Regulatory Commission will now be impaneled with broad oversight powers. It  will create and enforce statutes that will govern the state’s marijuana marketplace. Those regulations will be required to be drawn up within six months. The commission will determine the amount of the taxes and fees imposed, while trying to make legal cannabis affordable and preferable over the illicit market. It will decide who will be granted the various licenses required to grow, develop and sell marijuana.

The new law requires that certain minority communities — those that have been most wounded by an ill-conceived and unjust war on drugs — receive preferential treatment with both tax revenue and licenses. They include some of the state’s largest cities, like Newark, New Brunswick and Jersey City as well as smaller ones like Salem City and Bridgeton in South Jersey.

But the commission will have to avoid the fate of the current medical marijuana industry, which is predominately run by large, white, out-of-state, vertically integrated corporations that charge twice the price of the black market.

The new law hopes to avoid that fate by eventually issuing “micro-permits” intended to provide opportunities for hundreds, if not thousands, of small businesses to participate in the industry.

Where the money will go: TBD

And while the new law directs most of this new source of revenue to be invested in the minority communities, there is no guarantee it will. Where the money goes will be decided in yearly state budget negotiations. Senate President Steve Sweeney (D-Gloucester) has said he intends to propose another constitutional amendment that would guarantee that earmark.

More legislative tinkering is sure to come.

Likely first will be a bill that allows citizens to grow small amounts of marijuana for personal use, which was intentionally omitted in the current bill and widely criticized. There are also calls for additional money to be provided to expunge marijuana convictions.

Some are calling for a bill to further define rules for workplace safety, which remains a contentious and unresolved issue. Refusing to hire someone who tests positive for cannabis is now prohibited. But how to deal with suspected “intoxication” on the job remains ambiguous, and will likely have to be sorted out in the courts. Police face a similar challenge with motor vehicle charges. Because marijuana stays in the bloodstream for days, even weeks, there is no effective roadside test.

There are additional law enforcement and judicial issues. Will the attorney general dismiss all pending possession cases? How will police address marijuana that is bought and sold illegally, most likely by financially strapped users who can’t afford legal prices? Will current inmates serving time on marijuana charges be released?

Cannabis advocates also are closely watching the political maneuvering in Washington, because cannabis possession remains a federal crime. There is some optimism about the incremental movement there to reform banking and insurance restrictions on the current cannabis markets.

 In short, the real work may have just begun.

The new laws, at a glance

Here are the highlights of the three marijuana bills that became law Monday.

Legalization (A-21)

  • Permits adults 21 and over to possess up to 6 ounces;
  • Establishes the Cannabis Regulatory Commission to regulate a new, legal industry, and issue six types of licenses: cultivation, processing, wholesale, distribution, retail and delivery;
  • Directs (but does not guarantee) that 70% of the state sales tax revenue from purchases and all of an excise fee on growers go to certain minority communities disproportionately impacted by the drug war;
  • Limits the number of growers to 37 for the first two years, but does not limit retail outlets;
  • Prohibits all home growing;
  • Establishes a 7% sales tax and a municipal tax of up to 2% when sales begin. Includes a sliding tax to for growers — from $10 an ounce up to $60 an ounce as the price of marijuana falls over time.
  • Permits the sale of certain edible products, that cannot be mistaken by children as candy.

Decriminalization (A-1897) 

  • Removes criminal and civil penalties for possession of up to 6 ounces for adults 21 and over;
  • Distribution of 1 ounce or less will result in a written warning for a first offense. Subsequent incidents would be fourth degree offenses.

Underage penalties (S-3454)

  • Removes criminal penalties for marijuana and alcohol possession by anyone under 21 years old;
  • Mandates a three-tiered warning system for underage alcohol or marijuana use and possession; on the first offense, the person would be issued a written warning; on the second offense, the person’s parents or guardians would be notified and provided information about community services or groups offering education on substance use; on a third or subsequent offense, the person would be referred to those community services or groups.
  • Requires police have their body cameras enabled during interactions, which must be reviewed by the state attorney general.
  • Lessens the criteria of criminal liability for police officers who conduct illegal marijuana searches. Bars the odor of marijuana as cause for a search.

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