Interim Guidance on Constitutional Amendment Legalizing Cannabis
November 4, 2020
TRENTON, NJ (MERCER)–Yesterday, New Jerseyans approved an amendment to our State Constitution, legalizing regulated marijuana, referred to as “cannabis,” for those 21 or older. The Amendment, which makes clear that it does not legalize unregulated marijuana, takes effect on January 1, 2021, and requires the Legislature to enact a law establishing a regulatory scheme for legal cannabis. All of the State’s criminal laws relating to marijuana continue to apply, until, among other things, the Legislature enacts a law creating that regulatory framework. It is important that residents accurately understand the current situation, so they do not inadvertently engage in criminal conduct relating to marijuana— conduct that may be legal in the future once the Legislature acts, but is not presently legal based on yesterday’s vote. While my office will soon issue additional guidance for law enforcement and prosecutors to address this situation, we have reminded them of the broad discretion they already possess in handling low-level marijuana offenses.
Interim Guidance to Law Enforcement on Constitutional Amendment: click here.
Interim Guidance on Constitutional Amendment Legalizing Cannabis
On November 3, 2020, New Jersey citizens voted to amend the New Jersey Constitution to legalize regulated marijuana, referred to as “cannabis.” Senate Concurrent Resolution 183 (the Amendment).1 The Amendment, however, neither legalized, nor decriminalized, the sale or possession of “unregulated” marijuana. Moreover, it does not take effect until January 1, 2021, and requires enabling legislation and regulations, which will set forth the legal amounts and lawful locations for the sale, possession and use of legal cannabis. As such, the possession of marijuana outside New Jersey’s medical cannabis program remains illegal under existing New Jersey laws.
Nevertheless, some may misinterpret or misunderstand the consequences of the Amendment and possess or use marijuana right away, assuming that it is lawful. Given this, law enforcement officers and prosecutors are reminded of their broad discretion when handling low- level marijuana offenses and are encouraged to exercise it consistent with existing guidance from this office.2 Under that guidance, law enforcement officers and prosecutors should exercise discretion, but cannot adopt blanket policies that de facto decriminalize marijuana, because doing so would not only impermissibly assume a role that belongs to the Legislature, but would also undermine the framework for legalized cannabis that the electorate approved.
1 https://www.njleg.state.nj.us/2018/Bills/SCR/183_I1.PDF.
2 See Attorney General’s Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting Marijuana and Other Criminal Offenses (August 29, 2018), https://www.state.nj.us/lps/dcj/agguide/med_marijuana_memo.pdf.
If legislation is enacted to establish a framework for a legal cannabis market or to decriminalize any quantity of marijuana for personal use, we will promptly provide additional guidance to immediately address issues of fairness and retroactivity, among other topics.
Questions concerning the interpretation and implementation of this memorandum should be addressed to the Director of the Division of Criminal Justice, or the Director’s designee.
