TRENTON, N.J. (Dec. 22, 2020) – Last week, the New Jersey House and Senate passed a bill that would implement a program for the cultivation and sale of recreational marijuana in the state despite federal prohibition.

New Jersey voters legalized marijuana by a 67 percent to 33 percent margin on Nov. 3. On Nov. 9, Sen. Nicholas Scutari (D-Linden) and Sen. Stephen Sweeney (D-Salem) introduced Senate Bill 21 (S21). A coalition of six Democrats introduced the companion bill (A21) on the same day.

The legislation would create regulatory and tax structures for the state’s marijuana cultivation and retail businesses. Under the law, adults 21 and older would be allowed to purchase and possess up to an ounce of marijuana. As the licensing system is established, existing medical cannabis dispensaries would be able to sell marijuana products to adult consumers. Eventually, retail sales outlets would operate under a state regulatory scheme. The proposed laws would prohibit home cultivation for personal use. They would allow local jurisdictions to ban cannabis businesses, but delivery services would be allowed statewide.

The measures cap the number of commercial cultivators permitted under the law at 37 for the first two years. Under the law, 70 percent of tax revenue would be reinvestment in designated communities that have been adversely impacted by prohibition. The other 30 percent will fund operations of the Cannabis Regulatory Commission, along with state and local law enforcement.

The Assembly passed A21 49-24. It was then substituted in the Senate for S21 and passed 23-17.

The New Jersey House and Senate also passed A4269, legislation that would remove criminal and civil penalties for the possession or distribution of up to six ounces of marijuana. It would also create a process for automatic expungement of marijuana crimes from criminal records.

New Jersey legalized medical marijuana in 2010. The program languished under Gov. Chris Christie, a staunch opponent of cannabis. When Gov. Phil Murphy took office, he loosened requirements and expanded the number of qualifying medical conditions. The New Jersey legislature expanded the program further in 2019.


Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

On January 18, 2010, amidst a “flurry of bills” he signed on his final day in office, outgoing governor Jon Corzine signed into law S.119, the Compassionate Use Medical Marijuana Act, permitting the use of medical cannabis for persons with listed conditions: cancer, glaucoma, multiple sclerosis, HIV/AIDS, seizure disorder, Lou Gehrig’s disease, severe muscle spasms, muscular dystrophy, inflammatory bowel disease, Crohn’s disease and any terminal illness (defined as an illness for which a physician certifies that the patient will die within one year).

Legalization of marijuana for personal use in New Jersey takes the next step and removes another layer of laws prohibiting the possession and use of marijuana in the state even though federal prohibition would remain in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.


New Jersey is one of a growing number of states simply ignoring federal prohibition and nullifying it in practice.

Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019. During the November election, Arizona, Montana and South Dakota joined New Jersey in legalizing marijuana for recreational use.

With 36 states including allowing cannabis for medical use, and 15 legalizing for adult recreational use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats.

The push to legalize marijuana for personal use in New Jersey demonstrates another important strategic reality. Once a state legalizes marijuana – even if only in a very limited way for medical purposes – it tends to eventually expand. As the state tears down some barriers, markets develop and demand grows. That creates pressure to further relax state law. These new laws represent a further erosion of unconstitutional federal marijuana prohibition.


A21 and A4629 will now go to Gov. Phil Murphy’s desk. He must sign or veto the legislation within 45 days of transmittal to his office, or it will become law without his signature.

Mike Maharrey

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