’Til Pot’s Legal It’s Illegal

COURT HOUSE – Depending on whom you believe New Jersey may be on the brink of approving marijuana for adult use, becoming the latest in a growing number of states to take the step.
Short of that, even many critics of legalized marijuana suggest criminal penalties for the use and possession of the drug may be doing more harm than good.
Meanwhile, Gov. Phil Murphy has already expanded the state’s medical marijuana program, allowing its use for more conditions and easing restrictions.
In July, New Jersey Attorney General Gurbir S. Grewal suggested municipal prosecutors around the state seek an adjournment on marijuana possession cases until Sept. 4.
In the meantime, Grewal’s office plans to develop guidance for prosecutors moving forward.
That does not mean visitors to Jersey Shore towns should feel free to spark up this summer. Police say it’s business as usual at this point, which means those caught with marijuana will face charges.
“It’s not going to have no impact on the Ocean City Police Department,” said Detective Sgt. Steph Sullivan.
Like other shore towns, Ocean City sees a summer spike in marijuana arrests along with the large influx of tourists in July and August, but according to Sullivan, the summer of 2018 hasn’t been noticeably different than other years.
The change in approach has not meant much of a change at the municipal level, either. According to Wildwood municipal prosecutor Ronald Gelzunas, most cases of simple possession in shore towns would not be heard until after the summer.
Depending on what the defendant decides to do, after the initial court appearance, someone charged with possession would most likely go back in front of the judge at least once.
“It would typically take three to four weeks anyway,” Gelzunas said. He said he has asked for marijuana cases to be adjourned until September, but otherwise does not expect to see too much of an impact from Grewal’s request.
“The question is what happens after that,” he said.
Decision Time
Observers for and against have described the move toward legal marijuana in New Jersey as stalled. But it may get jump-started again. State Sen. Nicholas P. Scutari, a Democrat who has introduced the “New Jersey Marijuana Legalization Act,” told The New York Times in July that the bill may still pass this summer, while Murphy said in the same story that he hoped to get it done this year.
Legalization opponents are fighting hard against the move, which would make New Jersey the 10th state to allow adult use of the drug, which remains listed as Schedule 1 at the federal level, a designation reserved for the most dangerous drugs.
The organization New Jersey Responsible Approaches to Marijuana Policy has asked supporters to contact their representatives opposing the New Jersey bill.
Although Grewal’s request for adjournments has been seen as easing restrictions on pot, it came as a response to an action in Jersey City that, he said, went too far.
On July 19, the chief municipal prosecutor in that city issued a memorandum on marijuana decriminalization, telling prosecutors to dismiss most possession charges in the municipal courts.
The next day, Grewal overruled the memo, saying the city overstepped its authority.
But in a letter to county and municipal prosecutors July 24, Grewal said the issue made it clear that some municipal prosecutors could use additional guidance on their discretionary authority.
A statement from his office said the memo placed officers in a position of enforcing laws some believed had been rescinded, stating that could undermine community trust and jeopardize officer’s safety.
“By the end of August, I intend to issue a statewide directive concerning the scope and appropriate use of prosecutorial discretion in marijuana-related offenses in municipal court,” Grewal wrote.
Cape May County Prosecutor Jeffrey Sutherland said the Attorney General’s request applies to municipal courts, not to the more serious offenses his office handles.
Those interviewed for this story said someone accused of possessing less than 50 grams of pot typically faces a disorderly person charge. Gelzunas described it as similar to a misdemeanor in other jurisdictions.
Typically, police would fingerprint and process the suspect, who would then be released with instructions to return for a municipal court date.
If convicted, or if the suspect pleaded guilty, that person faces an $800 surcharge, and an additional fine of up to $1,000 as well as the potential loss of their driving license for up to six months, at the discretion of the judge.
The judge may decide to send the accused to county jail for up to six months, but as Gelzunas put it, there’s a presumption against incarceration. “Rarely if ever do you see that.”
In Wildwood, Gelzunas said he sees about a half-dozen marijuana possession charges a week in the summer. Sullivan said Ocean City’s numbers are about the same, maybe a little lower, with most shore towns seeing a similar pattern.
That 50-gram cutoff may be more pot than many people expect. It’s not a joint or two; it’s a little more than an ounce and three quarters, while many regular users never have an entire ounce at one time.
For comparison, patients using the nearest medical marijuana facility to Cape May County, the Compassionate Care Foundation in Egg Harbor Township, are limited to a maximum purchase of a quarter of an ounce per visit.
Prices vary, but an eighth of an ounce costs between $40 and $65 at the facility.
According to Sullivan, if officers have reason to suspect the pot is being sold, such as an ounce divided into smaller bags, the more serious charge of “intent to distribute” would be applied.
Arrests Remain Common
A report from the American Civil Liberties Union released last year put Cape May County at the top in terms of per-capita marijuana arrests. The ACLU used the FBI’s uniform crime reporting program and census data.
If that did not take into account the huge influx of summer visitors compared to the year-round population, that could put Cape May County high on a list of arrests compared to areas with little fluctuation in population.
According to the report, the impact of a possession conviction may go well beyond the cost of the fine, potentially impacting employment, loss of student aid and being banned from public housing.
The ACLU reports that 24,067 people were charged with marijuana possession in New Jersey in 2013, with the vast majority charged with possession.
The report alleged a significant disparity in the arrest rates for blacks in New Jersey compared to whites. New Jersey charges three times more African Americans, the report found, despite data showing similar rates of use as whites.
Practical Impact
Sutherland is often seen as a critic of legalization, but he is careful not to offer any opinion on the matter.
“I can’t comment on whether or not I support any pending legislation or whether I’m against it,” he said. “I just talk about practical challenges.”
For instance, he mentioned driving while intoxicated. It’s relatively simple to determine if someone’s blood alcohol levels are above the legal limit, through a blood test or breathalyzer.
But marijuana remains detectable in someone’s system long after the effects have worn off. Officials in Colorado and other states allowing the drug’s use have found it difficult to determine if a driver is under the influence.
Also, at this point, if an officer smells marijuana smoke in a car, that’s probable cause for a search. How does that change if Murphy signs a new law?
“If the driver rolls down the window and there’s marijuana smoke coming out of a car and it’s legal, does that give you reason to search a vehicle?” Sutherland said.
The Attorney General has announced plans to form a working group to help prepare a statewide directive on marijuana enforcement, to include law enforcement civil rights groups and community leaders.
“The Attorney General also reiterated that municipal prosecutors do not have the authority to unilaterally decriminalize marijuana-related offenses,” reads a statement from Grewal’s office.
Passage Not Assured
Legalization is not a sure thing, according to Sen. Jeff Van Drew (D-1st), one of a number of Democrats with concerns about the move. It will be a close vote in Trenton, if it passes at all, he said recently.
“It’s not going to be a smooth road,” he said.
Van Drew said there are too many questions and concerns for him to support allowing adult use of recreational pot, raising concerns with expanded underage use and traffic safety, among other issues.
But at the same time, Van Drew supports medical use of the drug, including expanding New Jersey’s medical marijuana program. He supports decriminalization of marijuana possession.
“People shouldn’t be sitting in jail over this,” he said. “I just don’t want to see us open this wider and increase the availability of another drug.”
To contact Bill Barlow, email bbarlow@cmcherald.com.