Every new location to legalize cannabis either recreationally or medically, comes up with its own set of rules for exactly what is legal. After the last US election, there were a few new additions to the legalization family, one of them being New Jersey, which legalized for recreational use. However, the State didn’t get everything it wanted. New Jersey wants home cultivation of cannabis to be legalized for its citizens, and right now, it is still not.
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Tuesday, November 3rd, 2020 was the date of the last US presidential election between Joe Biden and Donald Trump. It was also the day that several states held referendums to allow their voters to decide certain issues, one of the biggest of which was the legalization of cannabis. Many states held votes for the legalization of medical cannabis, recreational cannabis, or both (in the case of South Dakota). When the results of the election came in, four new states had gone legal recreationally: South Dakota, Montana, Arizona, and New Jersey.
The New Jersey referendum
On November 3rd, the people of New Jersey were given the right to vote for or against a recreational cannabis policy through Public Question 1 on their ballot. Approximately 67% of the voting population answered ‘yes’ on this ballot measure, legalizing recreational cannabis use for adults 21 years of age, or older. The bill legalized the cultivation, processing, and selling of cannabis commercially.
Public Question 1 acted as a constitutional amendment. The ability for this was passed as a resolution by the New Jersey State Legislature in December 2019, which was supported by 72 out of 79 democrats, and disapproved by 36 of 41 republicans. New Jersey, and the use of Public Question 1 on the ballot, marks the first time that a state legislature has referred a legalization measure onto its voters.
In states like Vermont and Illinois, the measure was passed by the state legislature, and in all other states, ballot measures were used in which campaigns were set up to collect signatures in order to be able to put the question on the ballot. New Jersey doesn’t have such a ballot initiation process, and it was the state legislature that made the decision to pass the vote onto the people.
The whole reason this referendum came up (and was forwarded onto the people), is because of a failed measure prior to it, in which the government was not able to pass a law to legalize cannabis. With the election in 2017 which brought on Governor Phil Murphy, and President of the Senate Stephen Sweeney – whose goal it was to get a marijuana legalization bill passed within Murphy’s term, there was much drive to get cannabis over the line into legal adult-use. The team pulled off what they were hoping for, in getting a recreational cannabis bill passed.
The regulation of this new industry is overseen by the Cannabis Regulatory Commission (CRC), a five-member group established in 2019, to oversee the medical marijuana program, which was originally legalized in 2010 under the Compassionate Use Medical Marijuana Act. A law that was improved on in 2013 so that patients under 18 could consume medical marijuana edibles, and then again in 2019, when ‘Jake’s Law’ was signed in honor of Jake Honig, a child fighting cancer who was using medical cannabis treatments. That update substantially opened up medical cannabis, making it accessible to more patients, easier to acquire, and eligible in increased amounts. However, it did not come with a legalization for home growing for medical use.
The new recreational cannabis industry in New Jersey will use the standard state sales tax rate of 6.625%, with an additional requirement added into the legislation that local governments can add as much as 2% tax only. If no other taxes are imposed, like an excise tax, this would mean New Jersey would have substantially lower tax rates than its compatriot states, some of which have leveraged a total of as much as 30%.
What the ballot did not indicate, was anything to do with how much a person could possess, a regulation structure for selling, or rules for home cultivation. All of these specifics were dependent on the CRC enacting new laws to clarify. This means that at the time of the vote, the people of New Jersey had no way of knowing if New Jersey would legalize the home cultivation of cannabis.
New Jersey and home cultivation of cannabis
New Jersey made great progress in the last few years, expanding its medical marijuana program, and pushing for the recreational legalization, which was aided by the entrance of Governor Phil Murphy. However, not every legalization was created equally, and in the case of New Jersey, the legalization was confirmed to not cover home cultivation of cannabis. Meaning, while it might now be legal to buy, sell, and use cannabis recreationally, it is still illegal for an individual to cultivate the plant in their own home. In fact, it’s still a felony. And New Jersey is the only legalized state to hold this contradiction. Any growing, for any reason – recreational or medical is illegal. But it is legal both recreationally and medicinally for use.
In mid-December, the follow-up laws were passed in a State Senate committee, from which it was scheduled for a full floor vote. When the new law passed the committee, it was noted that a copy of the bill was not released to the public with the most current wording, which made it a bit odd for advocates speaking in its favor, who only knew the general idea of what they were speaking to, and not the specifics.
What was made clear at that time, though, was that cultivation would not be legalized, and the only way to legally procure cannabis, would be via a licensed state cultivation facility. Though the bill is obviously being supported by cannabis advocates, this omission has greatly angered those fighting for legalization, as it means stiff penalties including jail time for something that was just made legal. In the end, it also creates a lot of legal gray area.
Said New Jersey American Civil Liberties Union, executive director Amol Sinha, “We supported it, but it’s not perfect… We’ve been advocating for home grow for the better part for decade now.” He went on to say, “It’s absolutely crucial from a racial and economic justice perspective, as well as a health care perspective.” Citing the current situation, he reminded, “People shouldn’t be forced into going to dispensaries for specific strains they need right now during COVID… It would be so much easier if they had access to their own supply, but we just prohibit that. And what’s worse, we punish it severely in New Jersey.”
New Jersey’s current laws for cultivation, post – Public Question 1 – are that up to five pounds (or 10 plants), is a 3rd degree crime which comes with a punishment of 3-5 years in prison and up to $25,000 in fines. Growing 5-25 pounds (10-50 plants) is a 2nd degree crime, punishable with 5-10 years in prison and up to $150,000 in fines. If a person grows above 25 pounds (50+ plants), it’s considered a 1st degree crime, which incurs 10-20 years in prison, and a fine of up to $300,000. In the case of a 1st degree crime, a mandatory minimum sentence of 10 years is imposed. This is a lot of prison time, and a lot of cash, for growing a plant which is otherwise legal to use.
Where are we now?
The law was originally scheduled to be enacted officially on January 1st, 2021. But, as tends to be the case, this did not happen, and as of February 1st, the law is still not updated. Disagreements over what to do about underage users ended up tanking discussions. This is partly because New Jersey actually passed two measures, not one. One is the bill being spoken about which legalized adult-use cannabis and the establishment of a regulation system. The other is a law that decriminalizes the possession of up to six ounces.
The decriminalization bill doesn’t come with penalties for underage users, essentially allowing cannabis use for anyone of any age. The legalization bill, however, comes with criminal penalties for underage users. The governor is requiring a 3rd ‘clean-up’ bill to account for this contradiction. The governor has until February 8th to sign the new legislation.
A clean-up bill was proposed in early January, but opposition led to its cancellation, as there was fear it would mean the targeting of black kids, which would greatly undermine any social-justice improvements that a legalization policy intends. Late last week, a new clean-up bill moved past the New Jersey Assembly Community Development and Affairs Committee, which hasn’t seen the same pushback as the previous one, while offering nothing but a lowering of the fine an 18-20 year old would have to pay if caught.
As the debate for how to deal with this discrepancy goes on, now three months after the legalization measure was voted in, that other issue of cultivation has not been forgotten. In a strange turn, a republican senator – Gerald Cardinale – is the primary sponsor for a new bill that would make it legal in New Jersey for the home cultivation of up to six cannabis plants.
Cardinale made the very astute point that “The people of New Jersey made it clear in November that they want to lift the prohibition on cannabis… Since then, the Legislature has spent three months fumbling around with what should have been a simple task, and complicated the legalization effort with countless fees, licensing and extra layers of bureaucracy.”
Advocates in New Jersey have been fighting to legalize home cultivation of cannabis for medical use for years, with this new recreational legalization making it that much more frustrating that this still hasn’t happened. Cardinale, for the record, never even supported legalization. His bill is contingent on the governor signing the legalization bill.
Considering how marijuana policies go, the question right now is, will this legislation really be signed by the 8th, or pushed back for some longer amount of time? We will find that out in a few days, but we might not get an answer on the cultivation issue. For now, New Jersey either wants to keep taking money off illegal growers, or protect the commercial industry from being hurt by home growers (are there ever other reasons?) Regardless, New Jersey will likely have to wait a bit longer to get its home cultivation for cannabis passed. At least for now, legislation is on its way, making it generally legal recreationally. And that is definitely something.
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