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New Jersey Legalized Cannabis—But Marijuana Is Still Illegal. Is Trenton on Drugs?

Cannabis became legal in New Jersey on Friday morning, January 1.

Or did it?

New Year’s Day was when a constitutional amendment legalizing the extremely popular plant—approved by more than two-thirds of New Jersey voters on Election Day—went into effect.

Simple enough. Except there’s a significant catch: All the laws on the books outlawing marijuana possession, use, and sales are still in effect.

The only legal “protection” that cannabis users in New Jersey currently enjoy is a polite request from the state attorney general, who has asked police to please not arrest anyone for weed. Cannabis is legal in New Jersey, but there’s nowhere to buy any—and you can still be be arrested for marijuana in New Jersey?

This weird dichotomy sounds like some logician’s trick in a freshman philosophy seminar, but it’s an object lesson in both law and politics.

Murphy Needs a Joint!

On the politics side, there’s an eleventh-hour breakdown in the lawmaking process. Avoidable, regrettable, but explicable. But on the law side, there’s a questionable use of language. “Marijuana” is still illegal in New Jersey no matter what. “Cannabis,” on the other hand, is okay—but only in certain situations. Though Question 1 amended the state constitution, and was interpreted by both voters and the media as “legalizing marijuana,” the amendment provided no details—like how much adults could possess, and where they could get it. All those details would come later in “enabling legislation,” a package of laws that would also outline broad rules controlling a future commercial weed industry.

Last month, state lawmakers passed bills decriminalizing cannabis and establishing guidelines for commercial cannabis cultivation and storefront dispensaries. But Gov. Phil Murphy—citing previously unmentioned concerns about penalties for juveniles possessing weed—declined to sign them both.

So January 1, the effective date, came and went without any laws in place for citizens to enjoy. This impasse may be solved sometime in January. But in the meantime, legalization is in a state worse than limbo—it doesn’t exist, at all.

“Until there is a law establishing a legal cannabis market, the existing state laws regarding marijuana remain in effect,” Peter Aseltine, a spokesman for Attorney General Gurbir Grewal said on Thursday.

That means someone with a joint in their pocket can—in theory—be jailed for a year, according to NORML. And this is after legalization.

As a practical matter, cannabis possession is de facto legal in New Jersey—at least for now.

On Nov. 25, a few weeks after the legalization vote, while lawmakers were still debating the finer points of where to divide the cannabis sales tax revenue, Grewal directed all local courts to seek adjournment of any pending or future court cases involving marijuana possession. That adjournment request, essentially a moratorium on enforcing petty marijuana laws, is supposed to remain in effect until January 25.

Until then, police have the legal right to arrest someone for marijuana and take whatever weed they have on them. But if they do, prosecutors won’t be able to do anything with the case.

New Jersey cops “have broad discretion in handling low-level marijuana offenses,” Aseltine noted.

We just all have to trust them—and seeing as how there’s an “underground” weed store openly selling cannabis in Trenton, the state capital, not too far from the halls of government, most of us probably can. But there’s another weird wrinkle in New Jersey’s cannabis legalization bill—one not seen in any other state. Strictly speaking, until a bill decriminalizing all marijuana in the state passes the legislature and is signed by Murphy, only “cannabis” bought in a New Jersey store is legal in the state. Everything else is “marijuana”—and still illegal.


Question 1 added a paragraph to the state Constitution that said “cannabis… is lawful and subject to regulation.” This is the legal lesson: always know what words mean. That same paragraph defined what cannabis is, and what cannabis isn’t. And what “cannabis” is not is “unregulated cannabis, referred to as marijuana.”

So here we are. New Jersey is one of the fifteen US states where either voters or state lawmakers have legalized cannabis. But not marijuana—and not at all until state lawmakers and Gov. Murphy, who promised to legalize within his first 100 days in office, can figure this out.

“It’s sort of unclear whether there’s now a constitutional right to possess cannabis,” said Amol Sinha, the executive director of the American Civil Liberties Union of New Jersey, one of the main supporters of the political campaign that convinced voters to approve Question 1.

If someone was arrested, or stopped and searched and had cannabis taken from them, they would almost certainly sue. A judge could then do the lawmakers’ jobs and declare that cannabis is legal.

“But I think it behooves the government to pass something quickly, so we don’t have to engage in litigation to see what’s legal and what’s not,” Sinha added.

Ambiguity is certainly not what voters expected on January 1. They voted for legalization. But ambiguity is what Murphy and the state Legislature gave them. So far, New Jersey is a lesson for future legalization architects. This is what you want to avoid.

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