New Jersey prosecutors are not permitted to adopt their own policies to decriminalize marijuana, state Attorney General Gurbir Grewal said Aug. 29 in a newly published guidance.
Instead, prosecutors handling marijuana cases may appropriately exercise prosecutorial discretion on a case-by-case basis, as they would when prosecuting any other type of criminal offense.
The nearly nine-page guidance for municipal prosecutors comes a month after Grewal requested that all municipal prosecutors in New Jersey pause marijuana-related prosecutions in municipal court until Sept. 4, while his office solicited advice from a working group representing a broad spectrum of criminal justice stakeholders and developed statewide guidance.
The request to pause prosecutions will now expire as scheduled, and municipal court prosecutions will proceed in accordance with the attorney general’s guidance.
“Municipal prosecutors cannot decriminalize conduct that the legislature has criminalized,” Grewal said. “They cannot adopt blanket policies of non-prosecution. But municipal prosecutors can and should strive to ensure that individual justice is done in individual cases.”
Under the guidance, prosecutors can’t adopt a wholesale policy of refusing to seek marijuana convictions. But the guidance says they may use discretion in each case.
The guidance states that insufficiency of the evidence usually will be the basis for amending or dismissing of a municipal court complaint, but that other reasons also might justify amendment or dismissal. For example, according to the guidance, “a municipal prosecutor should consider the impact of adverse collateral consequences of a conviction based on the specific circumstances or factors presented by the defendant or elicited by the court,” to the extent permitted by law.
“Attorney General Grewal’s convening of this discussion signaled an important moment for New Jersey, and the guidance issued today represents one step further. Municipal prosecutors – like county prosecutors — have immense power to change the course of a person’s life for the better by using their discretion, and in this guidance, the attorney general urges municipal prosecutors to use it to balance the scales of justice,” said ACLU-NJ Executive Director Amol Sinha in a statement. The ACLU-NJ was a member of the attorney general’s working group.
“The attorney general makes clear that municipal prosecutors should use their considerable discretion to weigh whether a marijuana arrest truly warrants the devastation it can wreak on a person’s life, from diminished employment prospects to loss of housing and separation from families as a result of immigration consequences, along with other effects that can turn everyday undertakings into day-to-day struggles.”