Legal weed debate in New Jersey now focuses on erasing discriminatory marijuana arrests

One New Jersey lawmaker described it as the “Scarlet Letter.”

The criminal record that minorities acquire when they are disproportionately arrested for possessing small amounts of marijuana often robs them of the ability to get jobs and opportunities, said Annette Quijano, the deputy majority leader of the state Assembly.

“They need a second chance," the Jersey City Democrat said, as lawmakers voted to advance a sweeping bill that would legalize weed for adult use and also remedy past arrests that were discriminatory.

A committee of both houses last month folded a plan to erase those criminal records into an omnibus bill that also would legalize cannabis and greatly expand the medical marijuana program. The ambitious expungement bill was the last thing added to the package, but it is no small matter. Hundreds of thousands of drug arrest and conviction records accumulated over the years would be wiped away if the bill passed.

“The social justice issue brought me to the table,” said state Assemblyman Jamel Holley, chair of the New Jersey Legislative Black Caucus Foundation, a nonprofit that advances the interests of African American communities. He is a cosponsor of both the expungement and the legalization bills. The unwieldy and costly expungement process needs to be simplified “so people can get relief very soon,” he said.

An ACLU study found that blacks are three times as likely to be arrested for marijuana possession as whites in New Jersey despite similar usage patterns. The latest data, from 2016, shows there were more than 32,000 arrests that year for possessing small amounts of marijuana. When multiplied over decades, the number of people who would be eligible for expungements would likely be in the hundreds of thousands.

Holley and Sen. Sandra Cunningham, a Jersey City Democrat, introduced the bill that calls for an automatic erasure of low-level marijuana records. But it goes beyond that, calling for the criminal records of people convicted of heroin and cocaine possession and low-level drug sales to be tossed, as well, as long as they are conviction-free for 10 years.

The omnibus bill faces a tough fight on the floor, and some lawmakers say the expungement proposal could win more votes.

A recent Rutgers-Eagleton poll found that 79 percent of New Jersey residents approve of allowing people to clear their records for possessing small amounts of marijuana. In the context of legal weed, those who were prosecuted on minor marijuana charges should no longer have to suffer the long-lasting consequences, social justice advocates say.

But Sen. Ron Rice, chair of the N.J. Legislative Black Caucus, doubts that the state can expunge the records of the thousands of people who have been convicted of low-level marijuana charges. “It will take eight to 10 years. If we can do it at all,” he said at the hearing. “We’re promising fictitious things.”

Rice also said legalization is just about “making money.” It will have an adverse impact on communities of color and mislead people into thinking marijuana is acceptable even though employers continue to prohibit drug use, he said.

After Gov. Murphy, who supports legal weed, was elected last year, legalization has enjoyed most of the attention. But the newly introduced expungement bill is giving it new life. New Jersey’s plan to wipe clean the criminal records of low-level marijuana offenders aims would be going into effect simultaneously with legalization, going

beyond what has been done in most of the 10 states that have legal weed.

“A lot of the early laws on legalization didn’t include it because many lawmakers considered it a bridge too far. It’s gone from something not even considered six years ago when Colorado legalized marijuana for adult recreational use," said Becky Dansky, who helped write many of the states’ legalization laws when she was a legislative counsel with the Marijuana Policy Project, a national advocacy organization.

Colorado and California are now launching new expungement plans.

Dansky said that the “criminal justice minded reform groups have ... reached a point where expungement is a must have.”

On Tuesday, the mayor of Denver announced he was considering issuing an executive order to clear about 10,000 low-level marijuana offenses. Earlier this year, San Francisco, San Diego and Seattle took steps to automatically clear past misdemeanor marijuana convictions.

“Expungement should apply to anything that is now legal under whatever the new laws are. That would include possession and consumption. But it wouldn’t necessarily apply to things that are still illegal, like selling it to children and things like that,” Dansky said.

In New Jersey, Murphy’s spokesman said he would not comment on the bill that emerged from a joint legislative committee late last month. “The governor does not comment on specific or pending legislation,”spokesman Matthew Saidel said.

But Murphy often says that, as a father of four children, he was not readily on board with legalization until he learned of the social justice impact. That, he said, changed his mind.

“Tens of thousands of people are arrested every year in New Jersey for low-level marijuana-related offenses, upending lives and creating permanent stains on their records that reduce chances of attaining quality, good-paying jobs,'' Murphy said in an emailed statement Wednesday. “New Jersey has the largest white/black incarceration gap in the country, in part due to the failed war on drugs that has disproportionately punished minorities for minor crimes.”

"I am committed to working with the Legislature on efforts that will accomplish these goals and ensure that the communities most impacted by war on drugs will see the economic benefits of adult-use marijuana legalization,” he said.

In 2017, the number of expungement cases the courts disposed of jumped more than 10 percent, to 9,839, from 8,417 in 2016, according to the state Administrative Office of the Courts. The AOC does not track how many were granted.

People convicted of nonviolent crimes in New Jersey must wait three to six years, depending on the type and number of offenses, and have a clean record during that period before they can seek expungements.

In Philadelphia, only people convicted of a low-level or summary drug offense, and who have had no other convictions in the last five years, can have their records cleared, said Benjamin Waxman, spokesman for the District Attorney’s office. Those with more serious drug offenses must be at least 70 and have a clean record for 10 years, he said.

Under the New Jersey bill, there would be no waiting period for low-level marijuana convictions. People also would get special help in processing their applications.

The measure also calls for people who are in jail or prison on such charges to be released. Those who have pending marijuana possession charges would have their cases dismissed.

Sen. Nicholas Scutari (D., Union) a primary architect of the legalization bill and a municipal prosecutor, said he doesn’t anticipate that too many people would be released from prison. Marijuana-possession charges in the state typically lead to fines and probation, he said. But there may be incarcerated repeat offenders who are eligible to be let out, he said.

The debate over legalization is also creating some havoc in municipal courts, he said. “There are lots of postponements in courts all over New Jersey right now,” he said. “Many defendants are waiting to see if marijuana will be legal before they agree to plead guilty and get probation or whatever. There’s a lot of ‘ifs.’”

Scutari also said that the streamlined expungement process could take 12 to 18 months to roll out. People convicted of possessing, using and even selling an ounce or less of marijuana would be able to apply to have their records cleared.

Police have discretion to charge people with intent to distribute marijuana, or low-level sales, even when they possess small amounts of marijuana. “If someone is standing on a street corner and has an ounce broken up into 30 joints, and it’s packaged for sale, that could be intent,” he said.

Scutari said the expungement bill could help with the legalization effort, but he said it also would correct injustices. “The expungement process in New Jersey is a nightmare,” he said. ”This is really needed."