By Patrick McKnight
Despite the progress and widespread optimism surrounding Garden State cannabis reform in 2018, politics has once again proven to be the biggest obstacle. On November 26th, New Jersey made headlines when bill S2703 left legislative committees and seemed destined for a quick approval vote by the Assembly and Senate. The committees also submitted legislation to further expand New Jersey’s medical cannabis program and develop a process for criminal expungements.
Shortly thereafter momentum abruptly stopped. Disagreements over the details of S2703 have apparently exacerbated a rift between Governor Phil Murphy and Senate President Steve Sweeney. The remaining issues include the proposed tax rate and finalizing the regulatory scheme. The current legislation employs a 12% rate. Murphy wants a higher 25% tax rate which Sweeney is concerned will encourage a black market. The earliest the bill could move forward is now January 2019.
As 2018 comes to an end it may be helpful to review the winding path of events that brought this legislation to its current impasse. When the year began cannabis reform advocates were buoyed by newly-elected Governor Murphy’s campaign promise to sign legislation within his fist 100 days. Although this window came and went, the new administration did take executive action to loosen restrictions on New Jersey’s medical marijuana program. These changes doubled enrollment in just six months.
Momentum seemed to be building for legislative action through the spring until contentious debates over the State budget threatened a government shutdown in June. Several cannabis legalization bills were drafted and support seemed to be coalescing around a single proposal, however the near-shutdown of the state government gave the first indication all was not well between the Governor and legislative leadership.
Over the summer State Attorney General Grewal temporarily encouraged local prosecutors to pause the prosecutions of non-violent cannabis offenders. Though this was widely reported as the state “decriminalizing” the possession of cannabis, in fact it was only an interim measure intended partly to reassert state jurisdiction after Jersey City attempted to take unilateral action to decriminalize cannabis. Since late August municipal prosecutors have been allowed to resume cannabis prosecutions, although Attorney General Grewal has encouraged them to use their discretion.
In the fall momentum towards legalization renewed with positive comments coming from legislative leadership. This optimism came to fruition on November 26th when S2703 was approved to leave committee and proceed to a full vote. Many lawmakers openly discussed their desire to enact the legislation before the end of the 2018 session, but this date came and went without an agreement between Sweeney and Murphy.
To further complicate matters, the Governor’s office is now embroiled in a sexual misconduct scandal involving former staffers. This scandal has resulted in a legislative investigation which threatens to deepen the divide between Murphy and the State House. The future remains unclear, especially as neighboring states such as New York threaten to deprive New Jersey of its lucrative first-mover advantage in the tri-state area. Some experts forecast the legalization of adult-use cannabis in New Jersey could generate $1 billion in twelve months.
Legalization efforts in New York increased after Governor Andrew Cuomo dramatically expanded his support last year. “The fact is we have had two criminal justice systems: one for the wealthy and the well-off, and one for everyone else,” Governor Cuomo said before recently introducing his plan to legalize the adult use of cannabis. He went on to note that prohibition had “for too long targeted the African-American and minority communities.”
“Let’s legalize the adult use of recreational marijuana once and for all,” he added.
Pennsylvania has not approved recreational cannabis, but Governor Tom Wolf recently made headlines on December 19th when he tweeted:
More and more states are successfully implementing marijuana legalization, and we need to keep learning from their efforts. Any change would take legislation. But I think it is time for Pennsylvania to take a serious and honest look at recreational marijuana. https://t.co/LHOmYKzMyp
— Governor Tom Wolf (@GovernorTomWolf) December 19, 2018
The City of Philadelphia decriminalized cannabis in 2014. Pittsburgh followed with a similar measure in 2016. Medical cannabis was signed into law in 2016 and the first dispensaries opened in 2018.
Elsewhere in the Northeast cannabis reform continues to accelerate. Massachusetts was the first state to prohibit cannabis in 1911, but voters elected to legalize recreational adult use in 2016. The first two recreational dispensaries opened on November 20, 2018 with more coming soon. These were the first legal retail sales of recreational cannabis in the eastern half of the United States. Massachusetts voters approved medical cannabis use in 2012.
Vermont legalized the adult possession of up to one ounce of cannabis on January 22, 2018. The new law took effect on July 1, 2018 but did not contain a “tax-and-regulate” system. Only medical users are currently permitted to purchase from dispensaries. Vermont’s legalization was the first time legalization was enacted by a state legislature rather than a ballot initiative. Vermont approved medical cannabis in 2004.
Maine legalized adult use in 2017 and the first recreational retail sales are expected in 2019. Maine decriminalized the possession of small amounts of cannabis back in 1976 and legalized medical use in 1999.
New Hampshire approved a relatively limited medical cannabis law in 2012 and decriminalized possession in 2017. The governor has vowed to “absolutely” veto any legalization bills.
Connecticut decriminalized cannabis in 2011 and approved medical use in 2012. Legalization legislation has been approved by an Assembly committee but has not gone forward for a final vote. Governor-elect Ned Lamont has expressed his support for legalization.
Rhode Island approved the medical use of cannabis in 2006 but recreational use remains illegal. Delaware approved medical cannabis in 2011 and decriminalized possession in 2015. It has not approved recreational adult use.
Given the drama of 2018, making predictions about the timetable of future political developments has proven to be a fool’s errand. It seems clear that both New Jersey and New York are on the path to fully legalize the adult use of cannabis, potentially in 2019. The optimistic forecasts of impending action in New Jersey have been thwarted again and again by the realities and in-fighting of local politics. In Pennsylvania, it is too early to tell whether Governor Wolf’s recent comments represent mere rhetoric or a more substantive change in direction.