Advice for New Jersey?

Boston Globe writer Dan Adams reports that the New Jersey legislature is expected to soon pass, and the governor expected to sign, a marijuana regulation and taxation bill modeled, in part, on our law.

I haven’t examined the NJ proposal, but the report raises the curious question: Does our law deserve to be seen as a “model”?

Soon it will be two years since the voters of Massachusetts overturned a century of marijuana prohibition in Massachusetts. What governs our rights and duties vis-à-vis marijuana today is Chapter 94G of the General Laws, which includes critical provisions adopted by voters and left intact by the legislature.  Another substantial portion was re-written by the legislature.

The portions left intact include the protections of individual citizens from involvement with the police for personal possession and cultivation, and sharing, common acts among friends yet criminal until recently. 

Another big part of the voter-enacted law is the mandate to the CCC to adopt

procedures and policies to promote and encourage full participation in the regulated marijuana industry by people from communities that have previously been disproportionately harmed by marijuana prohibition and enforcement and to positively impact those communities.

This instruction is the basis for the social equity and economic empowerment programs administered by the CCC.  With the inclusion of that language, Massachusetts is the first state to expressly acknowledge—if not too little too late—the brutal fact that the marijuana prohibition laws were conceived, enacted and enforced as an instrument for the oppression of minorities, principally African-Americans.  

To the extent that New Jersey replicates, or expands on, our effort in Massachusetts to come to terms with that historical reality, we can be proud to be a “model.”

The same can be said as to our removal of personal possession, use, cultivation, sharing, etc., from the province of the criminal law. We did that right.

The legislature re-wrote two significant portions of the law that was presented to the voters as Question 4 in 2016. One was the entire regulatory structure for the licensing of commercial production and distribution.  Although it’s too early to assess the new system, as licensed non-medical operations haven’t opened, we have reason to expect that it will operate as intended, and roll out “directly,” as my grandmother would say. We’ve waited decades; a few more weeks won’t matter.

Where New Jersey should not look to Massachusetts as a “model” is how prospective licensed marijuana producers and distributors are hobbled and treated unfairly by municipalities, in the ostensible exercise of their right to govern the “time, place and manner” of marijuana establishments, and their right to exact concessions though host community agreements. Too many cities and towns have imposed unreasonable restraints and complications through zoning bylaws and have extorted applicants, flaunting the fiction that licensed marijuana operations can be expected to cost the municipality money.  Remarkably—or not—no municipality, to my knowledge, has identified any new costs presented by such operations.  Municipalities have everything to gain, and nothing to lose, by accommodating licensed marijuana establishments. Unfortunately, too few of them have gotten the word.

They will eventually, as they hear echoes of ka-cheng from neighboring towns, and look up and notice that the sky hasn’t fallen anywhere, but by then it may be too late for them to share in the rewards.

September 25, 2018