Jersey City’s short-lived attempt to decriminalize marijuana was shot down by the state late last week, igniting a debate over prosecutorial discretion statewide.
As Trenton spins its wheels debating legalization efforts, Jersey City municipal prosecutor Jake Hudnut along with Mayor Steve Fulop decided to take matters into their own hands: Hudnut announced a policy last week advising all Jersey City prosecutors to decline to prosecute some low-level marijuana charges and dismiss others outright. He reasoned that the current cannabis prohibition laws put a strain on municipal budgets and disproportionately impact individuals and communities of color.
Since the Murphy administration is advocating marijuana legalization and many state legislators are supportive of decriminalization, the state’s objection was somewhat unexpected.
State Attorney General Gurbir Grewal declared the Jersey City action “void,” arguing that municipal prosecutors cannot use their powers of discretion to supersede state law. As Grewal is the chief law enforcement officer in the state, all police and prosecutors ultimately answer to him.
In a letter sent to Hudnut, Grewal wrote that “as a municipal prosecutor, you do not have the legal authority to decriminalize marijuana or otherwise refuse to criminally prosecute all marijuana related offenses in the municipal courts of Jersey City. Accordingly, I am instructing you that your memorandum is void and has no effect.”
He also faulted Hudnut for failing to thoroughly discuss the policy with the Attorney General’s office and Hudson County prosecutor Esther Suarez.
“It is disappointing you issued your memorandum without consulting either of us,” Grewal wrote, although he was also noted that his letter “takes no position on the legalization or decriminalization of marijuana in the State of New Jersey.”
Fulop defended Hudnut’s policy decision via Twitter on Friday. He wrote that “Jersey City undoubtedly has prosecution discretion + the ability to implement that. We aren’t changing law but we’ll continue [to] support our Chief Prosecutor’s judgment which we outlined in decrim policy we’ll follow. We respect the letter but don’t agree. JC = right side here.”
1/3 The letter is concerning after all the rhetoric in Trenton surrounding racial/social injustices, it’s baffling why anyone would push rules that are counter to everything they have previously stated publicly. We respect the letter received but we also feel cont. https://t.co/we9TejCmRV— Steven Fulop (@StevenFulop) July 20, 2018
Hudnut’s proposed policy — which was to take effect last Thursday — would downgrade low-level marijuana charges to noncriminal offenses, recommend sending those with signs of addiction to the city's community court, and allow prosecutors to dismiss marijuana charges in cases where individuals are not a threat to the community.
In an interview with NJ Spotlight, Hudnut pointed to the well-documented inequality in marijuana arrests and convictions as well as the costly burden it puts on municipalities and said he felt it was time for Jersey City to take a “bold and progressive stance” in this arena.
According to state data, each year in New Jersey there are more than 25,000 marijuana possession arrests; these carry an estimated prosecution cost of more than $1 billion each decade in policing, court operations, incarceration, and probation. What’s more, people of color are three times more likely to be arrested and prosecuted for marijuana than whites despite similar usage rates and as Hudnut put it, they “suffer the collateral consequences of those convictions.”
“I have experience standing next to young black men having to plead guilty for marijuana possession. Missing work for court dates, being charged fines they can never pay, being placed on probation and having to miss more work,” Hudnut said. “I’ve seen the toll that takes on people and that's why my heart is really in this policy.”
Fulop said the Attorney General’s rebuke came as a surprise. “It’s baffling why anyone would push rules that are counter to everything they have previously stated publicly,” Fulop tweeted. “We respect the letter received but we also feel comfortable and support the Jersey City Chief Prosecutor @JakeHudnut’s decision to continue to follow this change for Jersey City residents.”
Jersey City’s new policy would amend all marijuana-related offenses to “Local Ordinance” offenses, which have no impact on an individual’s criminal record. Hudnut added that he wants Jersey City prosecutors to be able to go even farther: If a case appears to be an “aberration” or a limited, one-time offense not threatening public safety, prosecutors would have the discretion to dismiss the case outright. And, due to recent amendments to the New Jersey expungement law, upon dismissal those individuals would be eligible for an on-the-spot expungement of their records.
The core of the argument here is prosecutorial discretion — the prosecutor’s ability to pick and choose what cases to pursue and how harsh a punishment to dole out. For example, a prosecutor may choose to dismiss a minor crime like jaywalking or downgrade the charge for a moving violation to facilitate a plea bargain. This ability is written into the state law books and codified by the state Supreme Court.
In this case, Hudnut and Fulop are saying a municipal prosecutor has the latitude to downgrade and dismiss some marijuana-related charges as the current law is harmful to the community and places an undue cost burden on the city. Grewal however, is requiring the prosecutors to uphold state law.
“We know that court rules [give a] prosecutor the discretion to amend or dismiss charges as they see fit and decriminalization is the right thing to do,” Fulop tweeted. “We shouldn't continue a policy of creating records and ruining a person’s future over small quantities of marijuana.”
Grewal responded that “a municipality's ‘decriminalization’ of conduct that violates the State's criminal laws... would result in — not mitigate — disparate treatment of similarly situated offenders. The criminal laws of this State are enacted by the Senate and the General Assembly, not determined by municipal prosecutors based on ‘[r]ecent public opinion polling.’”
It’s important to note that Hudnut’s policy as written was a strong but flexible suggestion rather than newly implemented law, thus giving the Attorney General’s office more power to override it.
Kate Bell, the New Jersey policy specialist with the Marijuana Policy Project, pointed out that even if Jersey City’s policy were to remain intact, it would depend on how cooperative the municipal prosecutors and local police forces are, since officers can technically choose to ignore the policy change and continue to arrest and charge people under the state law.
Hudnut and Grewal are reportedly scheduled to meet to discuss the policy today.