Pressing Pause on Pot Convictions
By Steven M. Fulop and Jacob V. Hudnut
Mr. Fulop is the mayor of Jersey City, where Mr. Hudnut is the chief prosecutor.
July 29, 2018
JERSEY CITY — Every city in America knows that it’s a bad idea to prosecute low-level, nonviolent marijuana offenses. It wastes scarce municipal resources and does nothing to enhance public safety. What’s more, even though whites and blacks use marijuana at similar rates, blacks are more harshly punished for it.
That’s why, on July 19, marijuana offenses were effectively decriminalized in Jersey City, New Jersey’s second most populous city.
Prosecutors treated every marijuana case that day as a violation instead of a misdemeanor, unless driving under the influence was involved. We told our prosecutors to ask for no more than a $50 fine, or just five hours of community service if the defendant couldn’t pay that fee. Instances like the absence of any public nuisance or a low likelihood of re-offense would warrant outright dismissal. We also stressed the importance of diverting people with an obvious drug addiction toward social services.
The goal of the policy was to avoid the collateral consequences of a conviction. Our assistant prosecutors approved. It meant less time subpoenaing police officers for marijuana prosecutions that had zero impact on public safety, and more time preparing for more consequential prosecutions of assault, theft and domestic violence.
Police officers also gave us positive feedback. They felt free to set aside enforcement of low-level, nonviolent marijuana offenses in favor of spending more time keeping our city safe by pursuing violent offenders. Brave young people don’t enlist in police academies to pursue pot smokers; they enlist to make a difference by keeping secure the streets where their family, friends and neighbors live.
We were excited to propose a solution to a problem that affected the entire state, not just our city. Each year, there are more than 25,000 arrests for simple marijuana possession in New Jersey. It is estimated they cost the state more than $1 billion each decade in policing, court operations, probation and jailing. Much of these costs fall on municipalities, like Jersey City, that are already short on cash. Most alarming is that people of color are three times more likely to be arrested than white people despite similar rates of marijuana use.
The collateral consequences of marijuana possession are considerable. Someone arrested for it could get a criminal record, have her driver’s license suspended, lose student financial aid, be banned from public housing, have a harder time securing a job or potentially get deported.
Unfortunately, our policy had a very short life. A little over 24 hours after we put it in place, Gurbir Grewal, the attorney general of New Jersey, voided it as an overreach of municipal prosecutorial authority, though we believe that the policy was supported by laws and legal precedent affording municipal prosecutors the discretion to downgrade or dismiss complaints for good cause.
If the realities of expensive and racially disparate marijuana prosecution aren’t “good cause,” then what is?
We asked to meet with Mr. Grewal and persuaded him to convene a working group that would advise him on a statewide directive to clarify municipal prosecutors’ discretion in marijuana cases. He also agreed to adjourn all marijuana-related prosecutions in municipal courts statewide for six weeks.
Meanwhile, the State Legislature is expected to vote on legalizing marijuana by September. If the various measures related to the issue pass, they could effectively end prosecution of marijuana possession in New Jersey.
Now, the question is: What are the rest of the country’s attorneys general waiting for?
Prosecutors in New York City and Philadelphia effectively decriminalized marijuana quite some time ago, and the sky didn’t fall. In New York, Gov. Andrew Cuomo recently embraced a state health department report calling for legalization. In Pennsylvania, the mayors of Philadelphia and Pittsburgh have all but conceded that legalization is inevitable.
Those states’ attorneys general should also impose statewide moratoriums on marijuana prosecution.
Who can name a good reason to continue burdening people of color with life-altering criminal convictions for something whites do without the consequence of conviction? Who with a straight face can argue that towns should continue spending their overstretched local resources on enforcement that does nothing to keep our streets safe?
In 1935 the Supreme Court declared that a prosecutor’s job is more than merely winning every case by racking up convictions; it also includes seeing that justice is done. We in Jersey City followed that principle on marijuana. The state attorney general did recently, too. Every state on the verge of marijuana legalization should follow us and do the same.
Steven M. Fulop is the mayor of Jersey City, where Jacob V. Hudnut is the chief prosecutor.
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