TRENTON, N.J. (Feb. 23, 2021) – Yesterday, New Jersey Gov. Phil Murphy signed legislation into law to 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) to create a legal framework for the program. After months of wrangling, Murphy put his signature on the bill Monday.

Murphy also signed Assembly Bill 1897 (A1897) decriminalizing marijuana and hashish possession and Assembly Bill 5342 (A5342) clarifying marijuana and cannabis use and possession penalties for individuals younger than 21 years old.  Juveniles will face a written warning for possession with referrals to community drug education and treatment programs.

“This November, New Jerseyans voted overwhelmingly in support of creating a well-regulated adult-use cannabis market. Although this process has taken longer than anticipated, I believe it is ending in the right place and will ultimately serve as a national model,” Murphy said in a press release.

The new law creates a regulatory and tax structures for the state’s marijuana cultivation and retail businesses. Under the law, adults 21 and older can possess up to six ounces of marijuana. They will be able to purchase up to an ounce at a time from licensed retailers. As the licensing system is established, existing medical cannabis dispensaries will be able to sell marijuana products to adult consumers. Eventually, retail sales outlets will operate under a state regulatory scheme.

The new law prohibits home cultivation for personal use. They also allow local jurisdictions to ban cannabis businesses, but delivery services will be allowed statewide.

The Cannabis Regulatory Commission created to oversee the industry will have six months to enact its rules and regulations before accepting applications for marijuana businesses. The law limits the number of cultivation licenses to 37 over the first two years of the program.

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.

EFFECT ON FEDERAL PROHIBITION

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).

The 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.

A GROWING MOVEMENT

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.


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