Provisions in New Jersey's proposed legislation, which the state Senate could take up soon after balking on a vote last week, would allow for expedited expungement proceedings for convictions including distributing under five pounds of cannabis, possession and possession with intent to distribute.
Ongoing cases in which individuals are charged with these offenses would be dismissed, and employers and mortgage lenders would face monetary penalties if they discriminate based on these types of cannabis convictions.
Between 2000 and 2013 the ACLU-NJ counted 279,623 "small-scale marijuana possession arrests," amounting to one such arrest ever 22 minutes in New Jersey.
The ACLU's May 2017 report, "Unequal and Unfair, New Jersey's War on Marijuana Users," points to a racial disparity that reached a high point in 2013, with black New Jerseyans three times more likely than whites to be arrested for marijuana possession in that year.
"The bulk of this burden has fallen on communities of color, which makes it even more compelling in terms of us getting the expungement language in the legislation," Roseanne Scotti, state director of New Jersey Drug Policy Alliance, told Law360.
While it is difficult to find total conviction numbers due to a lack of comprehensive and centralized record keeping in New Jersey, Scotti noted that total cannabis arrests have hit 32,000 in 2016 and 2017, according to the available data.
It is unclear when New Jersey legislators will come to a consensus on legalization after the bill was pulled last Monday amid wavering support from a handful of state Senators.
The bill has the support of the leaders of both legislative chambers and Gov. Phil Murphy but has also generated hardcore opposition from some lawmakers.
"The backroom dealing by Trenton Democrats over legalization is almost certain to lead to more drug dealing in communities across New Jersey," Senator Mike Doherty, R-Warren, said in a statement prior to the canceled vote. "That's what will happen if drug dealers with multiple felony convictions for possessing pounds of marijuana are given a clean slate as part the Democrats' rush to legalization."
According to Clark Municipal Prosecutor Jon-Henry Barr, legalization is bound to happen, and while opinions about the scope of expungement will vary, he believes that many of his colleagues do not consider cannabis possession to be a very serious offense anymore.
"I am still actively prosecuting people for possession of marijuana," Barr said. "All the more reason why I am absolutely convinced it's a completely counterproductive law," he said of cannabis prohibition.
Barr explained that the vast majority of arrests, "we're talking the high 90 percents, almost 100 percent of cannabis arrests," are for possession under 50 grams, which amounts to just over one tenth of a pound.
"It should be very significant," Barr who is also President Emeritus of the New Jersey State Municipal Prosecutors' Association and sits with the ACLU-NJ on the steering committee for New Jersey United for Marijuana Reform, said of the expungement provisions. "It's going to unburden a lot of good otherwise law-abiding citizens from an anchor that has been chained to their feet in so many areas," he said.
While the bill's expungement provisions have the potential to be life-altering, advocates contend they don't go far enough in terms of providing seamless access to expungement.
Tamar Todd, a lecturer at the University of California, Berkeley School of Law and Davis School of Law, said the requirement that individuals initiate their own expungement proceedings creates a significant barrier to justice.
"There are barriers for people to access court and access legal advice and the ability to know that the law applies to them," Todd said, who was also the former legal director at the Drug Policy Alliance. "All these create practical barriers to access to justice."
New Jersey is nevertheless taking an entirely new approach to cannabis legalization by folding expungement provisions into a holistic legalization bill that taxes and regulates sales. The only other state to legalize cannabis legislatively is Vermont, and that bill fell short of creating a regulated market, having only legalized possession and home-growing.
Todd, who was involved in New Mexico's 2008 medical cannabis legislation, as well as the drafting of adult-use legalization efforts in Colorado, Oregon, Alaska and California, said earlier efforts at legalization focused primarily on reducing the black market for cannabis and curtailing crime.
Early legalization bills were drafted conservatively, she said, and drafters were acutely aware of political considerations and eschewed addressing the criminal justice concerns that now play an increasingly central role in the legalization conversation.
By the time the conversation around legalization moved to California, the participation of racial and social justice groups was greater, Todd notes, and those concerns became a central part of the support for legalization.
"Now I think we're in a time when its actually come to the forefront legislatively for a lot of the states that are moving forward," Todd said. "There are a number of states where the eagerness to legalize is as much about undoing the harm of racial discrimination and prior criminalization as it is about creating a legal, regulated market for cannabis."
All eyes are on New Jersey right now, according to Sinha.
"There's no other state that is doing this legislatively in such a comprehensive way," he said.
Both Scotti and Sinha pushed for automatic expungement of convictions in the bill, and were joined by numerous politicians. But even without that change, Barr believes New Jersey's approach is a "humongous step in the right direction." He isn't alone.
"This is a comprehensive and bold approach to legalization, and something we haven't seen in any other state, but hopefully will be a model for other states going forward," Sinha said.
--Editing by Pamela Wilkinson.
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