Updated: 8:45 p.m.
New Jersey’s top law enforcement official is warning municipal prosecutors that they cannot unilaterally decriminalize marijuana possession in their city or town.
But in a memorandum issued Wednesday, Attorney General Gurbir Grewal said local prosecutors should exercise their discretion in trying low-level marijuana offenses.
He said municipal prosecutors could decide to throw out minor possession charges if they thought a drug conviction might harm a defendant’s job prospects or immigration status.
According to Grewal, it is a way for prosecutors who believe that marijuana legalization is a social justice issue to make an impact.
“Municipal prosecutors can contribute responsibly to progressive criminal justice reform, while respecting the rule of law, including the authority of the legislature and the courts,” Grewal said, in a Wednesday morning conference call. “Municipal prosecutors cannot decriminalize conduct that the legislature has criminalized.”
The announcement came a month after Grewal asked local prosecutors to hit the pause button on low-level marijuana cases while a working group of law enforcement officials devised recommendations for how the state should prosecute minor drug crimes in the future.
Earlier in July, Jake Hudnut, the top municipal prosecutor in Jersey City, the state’s second-largest municipality, announced that he would downgrade all low-level marijuana offenses, effectively decriminalizing possession of the drug.
Grewal told Jersey City that it did not have the authority to ignore state law, but he said the Attorney General’s office would reconsider “the scope and appropriate use of prosecutorial discretion” in low-level marijuana crimes. Municipal court prosecutions that were temporarily halted in the state over the last month are now proceeding.
Wednesday’s guidance is the result of a month of discussions among a working group that included county and municipal prosecutors, police officials, the American Civil Liberties Union, and members of the AG’s office.
The upshot of its recommendations is that prosecutors should exercise discretion in low-level marijuana cases as they would in any other case.
For example, Grewal noted that municipal prosecutors have the authority to amend or dismiss any charges “for good cause,” and he noted that state court rules do not explicitly define what that means.
Grewal said prosecutors could use that ability to toss out or downgrade charges in cases where the defendant would suffer “adverse collateral consequences” as the result of a prosecution. He said prosecutors could take into account a defendant’s age and prior criminal record, whether the person’s job or educational prospects would be harmed by a conviction, and how the charges might impact a defendant’s immigration status.
The state Supreme Court bars municipal prosecutors from reaching plea agreements in low-level marijuana cases, but Grewal said prosecutors could dismiss some additional charges that arise from the same incident in a given case.
After a defendant’s conviction of a minor marijuana crime, Grewal said the municipal prosecutor could ask the judge for leniency in sentencing or support a defendant’s application to avoid a driver’s license suspension.
A July report from a New Jersey Supreme Court committee said municipal courts across the state saddled low-level offenders with excessive fines and recommended overhauling the system statewide.
Steven Fulop, the Democratic mayor of Jersey City, which he said in an op-ed in the New York Times “effectively decriminalized” low-level marijuana offenses in July, greeted Grewal’s guidance to prosecutors as a victory.
“It ultimately landed in a place where we’re going to be able to do exactly what we intended to do initially,” he said.
Fulop said that he and Hudnut were simply exercising prosecutorial discretion in July when they announced the city would be downgrading all low-level marijuana possession charges. Fulop suggested Grewal’s guidance to prosecutors only re-emphasized Fulop’s belief that the city has wide latitude to prosecute low-level marijuana cases how it sees fit.
But when asked why Grewal would call out Jersey City in his Wednesday conference call, restating that the city does not have the power to unilaterally ‘decriminalize’ what is officially a crime in the state, Fulop chalked it up to politics.
“When somebody gets on a conference call and they say, ‘Well, we won’t let this but we’ll allow this,’ and the end goal is exactly what we intended, I think anybody can see that we kind of navigated this course in a way to virtually decriminalize marijuana.”
Grewal’s announcement came amid the state’s slow march toward legalized recreational marijuana.
Top lawmakers have expressed support for legalizing the drug for personal use, but have yet to agree on a bill.
Legalizing recreational marijuana was also one of Gov. Phil Murphy’s main campaign promises, which he said would provide the state with millions in additional tax revenue.
Murphy also argued that it was a matter of social justice in a state with a wide racial disparity in arrests for low-level offenses.
A 2013 study by the ACLU found that blacks in New Jersey were three times more like to be arrested for marijuana possession than whites, despite similar rates of using the drug.
New Jerseyans overall support legalizing recreational marijuana, according to a recent poll conducted by the Stockton Polling Institute of the William J. Hughes Center for Public Policy.
In the April survey, 49 percent of respondents supported legalizing the drug for personal use, while 44 percent opposed it. Five percent of respondents were unsure.
At least eight U.S. states, including California and Colorado, have legalized marijuana for recreational use.
New Jersey legalized medical marijuana in 2010 under former Gov. Chris Christie, a Republican, whose Department of Health allowed the drug to be used in narrow circumstances.
Christie has said that legalizing recreational marijuana in New Jersey would be “beyond stupidity.”