Op-Ed: Leading N.J. Marijuana Law Will Continue To Criminalize Marijuana; Alternative Bill Will Not

There might be some confusion about marijuana in New Jersey, and rightfully so. As the state comes to terms with legalization, it leaves people wondering what degree state authorities will regulate their own personal consumption, use, and interaction with the plant.

In 2018 alone, 6 marijuana bills have been introduced in the State Senate and State Assembly combined. If any are approved by the two state houses, newly-crowned Governor Phil Murphy will take action on them.

The leading marijuana bill, which as of writing falls 3 votes short of passing the State Senate, was introduced by State Senator Nicholas Scutari. This is not the first time he has introduced this same marijuana legalization bill in the State Senate, and this version – as of this writing – is not any different than any previous version.

NJ.com and local press reiterate that this is the best hope of legalizing marijuana in New Jersey. It heavily borrows ideas and provisions from Colorado’s marijuana legalization bill. Even Governor Phil Murphy supports this legislation.

While this all sounds great on paper, it is important to know exactly what is in this bill – especially if you are not interested in marijuana and might not favor it’s legalization. Below, I copied and pasted (with minor grammatical edits) the provisions that the leading marijuana bill in New Jersey has.

Key takeaways from the bill:

  • Legalizes possession and personal use of small amounts of marijuana for anyone 21 and over
  • Specifies specific personal actions that are not unlawful in the criminal code:
    • Possessing, using, displaying, purchasing, transporting marijuana accessories or one ounce or less of marijuana to anyone over 21
    • Prohibits any and all consumption of marijuana in any open or public environment
    • Allows you to sell marijuana with a license
    • Allows you to cultivate marijuana with a license
    • Allows you to package marijuana with a license
    • Allows licensing for operating a marijuana testing facility
    • Allows leasing for marijuana related businesses
  • Creates a Division of Marijuana Enforcement and regulation
    • Operate a licensing business for marijuana
    • Collect licensing fees
    • Encourages minority and female owned marijuana businesses
    • Prohibits sale to minors
    • Security requirements for marijuana businesses
    • Packaging requirements
    • Health & safety for transportation of marijuana
    • Marketing restrictions
    • Unannounced visits to marijuana establishments
    • Marijuana businesses can ONLY sell marijuana, marijuana based products, and paraphernalia
    • System for tracking the transfer of marijuana for wholesalers
    • Makes division enforce a tax on marijuana
    • Makes division remove medical marijuana tax
    • Forces local governments to enact an ordinance or regulation specifying how marijuana will be regulated in that local government
    • Establishes 4 classes of licensing
  • Establishes Marijuana Control and Regulation Fund
  • Establishes a Marijuana Regulation Review Commission
  • Goes into effect 360 days after signature of Governor
  • 7% – 25% escalating tax

A lot goes on in this bill, and quite frankly, that’s what makes it so alarming. First, I want to stress that this bill amends the criminal code of New Jersey to reflect the State of New Jersey to allow its citizens to act a certain way. The state of New Jersey would be allowed to change and enforce changes based on recommendations from politicians and big corporations, meaning they will ultimately control how you act. This is a horrible concept to embrace. The state does not give you permission to act a certain way. You have a right to your body and the state has no authority to intrude on this right.

Unfortunately, proponents to this idea will usually say that “We are a nation of laws!” or “You don’t have the right to smoke marijuana!” This is a flawed argument that does not respect your individual right to your body, instead giving that right to the state. Benjamin Franklin and our founders expressed the need to preserve Liberty beyond the scope that we preserve Safety, for reasons that drug legislation and this marijuana bill clearly underscore.

With the acknowledgement that marijuana is still heavily seen as a criminal act that needs supervision, Scutari’s bill has a slew of pointless regulation:

  • age restrictions for legal adults
  • limits on possession (1 ounce)
  • creation of an unnecessary state regulatory agency
  • licensing and regulation of marijuana based on politicians and big corporations
  • usurps local government authority over their own domain
  • allows many criminal penalties for marijuana to be un-expungeable
  • lays an excessive tax that will only increase state spending (as seen in Colorado)

And that just scratches the surface.

Marijuana is not a criminal act. At all. The problem is that it is currently treated like a criminal act and that legislation has been passed in our legislature that reflects the power our local and state police have over the plant. The problem with marijuana does not stem from the plant not being taxed.

In fact, passing a tax on marijuana will not benefit New Jersey, despite the media spin on the issue. Taxing marijuana in Colorado and Washington state resulted in higher state spending (which admittedly might not have been exclusively because of marijuana legalization, but it was a contributing factor). The media has only managed to report positive aspects of tax money on marijuana, rather than the negatives.

As a non-smoker, or a staunch supporter of keeping marijuana illegal, you will be affected because of the marijuana tax. The tax will give a blank check to our lawmakers and the corporations that control them in Trenton. This blank check will not be used to clear up our deficit or to help close budget gaps. Instead, our politicians in Trenton will increase state spending because they have more revenue. While the hole might close a bit, New Jersey will still be in debt. Here is an example of what I am talking about in more basic terms:

Family Revenue in 2017: $80,000

Family Spending in 2017: $100,000

Family Deficit in 2017: $20,000

The family gets a raise in 2018. Instead of making $80,000, the family now makes $100,000. This closes the family deficit for 2017. Here’s the new numbers:

Family Revenue in 2018: $100,000

Family Spending in 2018: $120,000

Family Deficit in 2018: $20,000

Total Family Debt 2018: $40,000

While revenue increased, so did spending. The increase of revenue is great, but because spending was not cut and actually increased, the Deficit remained the same and the Debt went up.

This is precisely what happened in Colorado and Washington state. The media reported on the increase in state revenue and the earmarks that required *some* revenue to go toward schools and roads before even going toward state debt. This is great! More money for schools! Better roads! What could go wrong?! At the same time, Colorado – which cut spending every year for nearly 8 years prior to marijuana legalization – increased state spending. This increased their deficit and is why the state’s debt has increased nearly every year since 2011.

In simple terms, marijuana should not be taxed. If we want better roads and schools, we need to hold our politicians accountable to what we already give them and demand that they spend our money like adults and not perpetual children. We don’t need to give them more money and anyone that feels compelled to actually give them more money – please start writing checks now. Increasing our taxes will not solve our financial situation. We need to hold our politicians accountable and demand that they cut spending.

New Jersey will not benefit from any new taxes. This marijuana bill raises our taxes and presents a danger to our over-taxed state. This alone should be a good argument to not tax marijuana.

But it gets worse.  

Why can the state decide how much marijuana you possess, consume, or sell? Scutari’s bill limits this amount to 1 ounce (probably at the advice of “experts”). This is just silly. Any law that can criminally define an amount being “legal” or “not legal” is a bad law. 1 ounce of marijuana is not criminal, but 1.5 ounces is? How do these lawmakers think police will enforce this? Do they truly think race won’t play a factor in arrests for people who have 1.5 ounces of marijuana in their car?

If marijuana is not criminal, why are we making 1.5 ounces of marijuana criminal? Shouldn’t marijuana …. not be criminal?

I don’t think this is a hard concept, do you? Police should have no authority to arrest anyone because of marijuana – except, of course, if they sell it to anyone under 18.

The catch in this bill is the state regulation. I can’t fathom why we need another state agency to regulate marijuana, yet alone have any state agency regulate marijuana. If we want to talk about wasting taxpayer money, this would be a great time to do so. The licensing regulations are so bad that looking at what you need a licence for – and how much it costs – will likely confuse you.

There should be no state agency and no licensing mechanism from the state government over marijuana. One of the worst aspects of Scutari’s marijuana bill is the requirement for local towns and cities to enact an ordinance outlining how that town or city will regulate and abide by state regulations. That’s why towns have pre-emptively started banning the sale of marijuana, a violation of the First Amendment. The state should not be placing its will on a local town or city. This is bad policy.

The catch: marijuana businesses, according to the bill, are only allowed to sell marijuana and marijuana related products. Want a Hershey bar at the checkout? That’s illegal. Want cigarettes or a donut? Illegal if your selling marijuana.

Why are we allowing the state to dictate how someone can run their business?

Towns have zoning laws that regulate alcohol, tobacco, and adult sexual entertainment. In most cases, bans on these places of business do violate the first amendment. However, towns are allowed to regulate who, what, when, where and why in regards to these businesses. What is so vastly different between a strip club being regulated by strict, local zoning laws and a marijuana business being regulated by the same laws?

Scutari’s bill is a legal minefield. It is awful legislation, and quite frankly, it is sad to have the media and politicians in this state lie to the people of New Jersey about the “benefits” of this bill. There simply are no worthwhile benefits in creating a heavily regulated marketplace for marijuana in New Jersey. Scutari’s bill is a good-intended, but really bad law and perpetuates the problem by plugging a few holes in the leaking ship. We need to permanently patch the holes.

There’s one more awful bill: Assemblyman Reed Gusciora will introduce a bill that is exactly the same as Nick Scutari’s bill, except for a few things:

  • From NJ.com, “Under Gusciora’s bill, New Jersey residents would be allowed to grow up to six cannabis plants in an enclosed space at their home. Only three of those plants could be mature — meaning producing marijuana — at any one time. A single household could grow up to 12 plants, with no more than six being mature.”
  • Also from NJ.com, “Scutari’s bill doesn’t set a hard limit on the total number of marijuana businesses that could operate in the state. The only restriction is that there has to be at least one dispensary in each of New Jersey’s 21 counties. But Gusciora’s bill caps the total number of dispensaries across the state at 80, or two in every legislative district. In the first year of the legal market, the bill allows only 15 growers in total, escalating to 25 in the second year.”

Gusciora’s bill will limit the amount of plants you can grow in your own home by allowing the state to issue criminal offences to anyone not abiding by arbitrary rules made up by politicians and big corporations. The bill will also allow the state to determine how many marijuana businesses operate. Both of these provisions violate an individual’s first amendment right.

The state government should not be allowed to dictate how many businesses operate. Imagine them only allowing 80 Wawa and Quick Check stores! Imagine only 80 liquor stores! I’d be pretty angry about that. Imagine the state coming into your private home and counting 14 marijuana plants. You’d be considered a criminal.

Last but not least – criminality. Under Scutari and Gusciora’s bill, expungement of possession of marijuana under 1 ounce will be allowed to petition for the process of expungement. This includes law enforcement objections, a required hearing, and grounds for denial in applying to the petition of expungement, like normal. If you possessed anything above 1 ounce, you will still be a criminal with a record. If you distribute marijuana, you will be a criminal with a record. If you possessed or failed to dispose of marijuana in a lawful manner, you will be a criminal with a record.

So much for improving criminal justice.

These bills are nothing more then measures to enable the state to collect tax money on marijuana. They do not approach marijuana legalization from the standpoint of removing criminal liability. They are bad policy, bad bills, and they present danger in moving forward.

Luckily, there is a much better alternative option!

Assemblyman Patrick Carroll introduced an alternative version of marijuana legalization. This should be notable because of the lengths it goes to end the drug war and fix the problem with our drug laws in this country. No other state has attempted to fully remove marijuana from the criminal code.

Key takeaways from his bill, as copied from the text of the bill:

  • Legalizes marijuana by removing all criminal liability associated with marijuana from the New Jersey Code of Criminal Justice, Title 2C of the New Jersey Statutes, as well as its regulation as a controlled dangerous substance under the New Jersey Controlled Dangerous Substances Act
  • Allows for expungement of all criminal or disorderly persons offence convictions
    • marijuana possession, use, being under the influence of marijuana, or failure to make lawful disposition of marijuana included
    • Law enforcement objections, a required hearing, and grounds for denial would not apply to the petition of expungement and the court will grant expungements in an expedited process.
  • Selling marijuana to anyone under 19 would be prohibited; fines starting at $250 apply to violations
  • Smoking marijuana would be subject to the New Jersey Smoke Free Air Act of 2005
  • Prohibit industrial manufacturing of marijuana for an employer in a home setting
  • MProhibits advertisements for marijuana on the exterior of school buses owned or leased by a school district
  • Requires instructional programs in schools on the physiological, psychological, and sociological effects of marijuana on the individual, family, and society
  • Repeal parts of the New Jersey Dangerous Controlled Substances Act regarding illegal marijuana
  • No implemented tax
Michael Patrick Carroll

This bill effectively makes possession, use, and distribution of marijuana criminal free. There would be no limit to marijuana and businesses like Wawa would be able to start selling cartridges of marijuana oil for our marijuana vape pens.

This bill does not establish any taxation or government regulation. Instead, it places regulation on local towns and cities. This would be an improvement over the Scutari bill: it would allow zoning laws to regulate businesses and would allow individuals to act without being treated as criminals. The state would still be able to collect the 6.867% sales tax the way any normal business would, so marijuana would not be completely tax free.

Nearly all non-violent criminal offences that deal with marijuana would be eligible for an expedited expungement process. The bill would allow home growing as well – marijuana would not be considered criminal, which means that growing 50 plants in your home won’t be considered a criminal act.

A common argument against marijuana legalization is driving under the influence. Unfortunately, this too is a very bad approach to controlling how individuals act. Undermining Liberty for Security is a bad practice.

Despite my disagreements with laws based around driving under the influence, driving under the influence of marijuana will still be a criminal act that the New Jersey Code of Criminal Justice covers. This means that a police officer will be able to pull someone over and arrest them for consuming marijuana while driving. However, Carroll’s bill would remove the ability of the police to seize marijuana or marijuana related products, except in the case of an accident or violent act.

To recap: Carroll’s bill will remove all criminal liability with marijuana except for 2 actions: you cannot drive while under the influence of marijuana and you cannot sell marijuana to anyone under 19 years old. If you do neither of these things, then you are free to do you with marijuana. If you hate marijuana and don’t want your friends/relatives smoking marijuana, your free to express to them the harms of smoking marijuana – because there are numerous harms. If you want to be a stoner and can afford that lifestyle, toke up.

The fact that marijuana will still be treated as a crime under the leading bill (according to lawmakers and the media) is troublesome. Our progress in drug policy and criminal justice reform will be undermined if Scutari’s bill passes through our state legislature. Governor Phil Murphy must take a principled stand against the Drug War and endorse a full removal of marijuana from the criminal code. He needs to reach out across the aisle and support Assemblyman Carroll’s marijuana legislation so we can actually take a step forward to ending this horrible approach at running our lives.

Charles Barr received his BA in Political Science and BA in Communications from Montclair State University in 2016. He currently serves as a Marketing Coordinator for a marketing and branding agency and aims to help reform the criminal justice system in New Jersey and across the US.