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Rutgers Law professor Stuart Green
Stuart Green, a criminal law expert and distinguished professor of law at Rutgers Law School, talks about proposed legislation to legalize marijuana.

New Jersey voters overwhelmingly approved the referendum about legalizing recreational use of marijuana for adults, and now the state must determine what legalization will look like.

Stuart Green, a criminal law expert and distinguished professor of law at Rutgers Law School, talked to Rutgers Today about proposed legislation, what it may mean for the amount of revenue the state generates, and how and when New Jerseyans could expect to sell, purchase and consume legal weed.

Lawmakers are developing legislation to legalize marijuana. Ideally, what would that legislation include?

In the week since the referendum was passed, there has already been proposed legislation introduced in the state legislature. But there is still a huge amount of legislative work that needs to be done. The legislation will have to create a regulatory and licensing regime to govern the cultivation and sale of marijuana and allocate the tax revenue that is produced. Finally, the legislation will have to deal with the decriminalization of marijuana offenses, which are still on the books.

How will legalization positively impact the state? 

Legalization allows the government to regulate and tax marijuana use and sales. It also means that you can't be arrested, ticketed, or convicted for using marijuana if you follow the state laws as to age, place, and amount for consumption.

One of the attractions of decriminalization is that criminal enforcement has had a particularly harmful effect on communities of color. That should end with legalization. There have also been proposals to expunge criminal records of those convicted of minor marijuana offenses. 

Finally, it is very costly to enforce the marijuana laws. Decriminalization should save the state and local municipalities a significant amount of money. 

How about negative impacts?

There is a concern that demand for marijuana among recreational users will create shortages for the approximately 95,000 individuals who use marijuana for medical purposes.

How will prosecution of the illegal sale or purchase of marijuana change? 

Depending on pricing and market availability, there may well continue to be a black market in marijuana sales despite legalization. This activity would still be illegal, which means you can still be arrested for selling or trafficking in marijuana if you aren’t complying with state laws on licensing and taxation. Home cultivation for personal use would also be prohibited, unlike in most other states that have legalized cannabis. However, the penalties for such violations are likely to be very minor. 

So, how will the legal sale of marijuana be conducted? Could someone walk into the local corner store and buy it, or will there be specific, state-regulated facilities that can sell the plant? 

The details of who can sell marijuana remain to be worked out by the legislature and the newly appointed Cannabis Regulatory Commission (CRC). The CRC will be responsible for granting licenses to growers, processors, wholesalers, laboratory testing facilities, distributors, delivery services, and retailers. Retailers will have to be licensed to sell marijuana.

Regardless of how the new licensing process plays out, the first companies to sell to the public will likely be the state’s 12 currently licensed medical marijuana dispensaries. Under proposed legislation, a certain percentage of cannabis licenses would have to go to minority-owned businesses, and an additional percentage to businesses owned by women or veterans. If an applicant pledges to hire people from communities disproportionately impacted by crime or unemployment, they would get licensing priority, as well.

Marijuana leaf

Even if marijuana is legal in New Jersey, could a municipality still ban it?

Individual municipalities could decide to ban retail stores. However, under one proposal circulating, delivery services could operate statewide regardless of local bans. Retailers could also provide for on-site consumption with local approval.

Intoxicated driving is a serious concern that comes with legalization. How do you think we will prosecute or identify people who drive under the influence of marijuana? 

This will be a challenge. According to the National Highway and Traffic Safety Administration (NHTSA), while the incidence of people driving while intoxicated with alcohol has gone down in recent years, the percentage of drivers testing positive for the presence of marijuana has increased, as well as fatal injuries in accidents involving marijuana.

Finally, there is no national standard (.08 g/mL blood alcohol concentration) or cheap and reliable uniform testing for drugged driving like there is for drunk driving – and most tests to detect marijuana are more intrusive than the breathalyzer tests used to detect alcohol. Unlike alcohol, marijuana can stay in the system for days or weeks, and can be detected in roadside tests even while it is no longer likely to cause impairment. 

Would vendors need a license to sell marijuana and will municipalities have the right to put a cap on how many licenses can be issued? 

Not necessarily. It depends on what the legislature and what the CRC decide.

What tax could the state impose on marijuana sales?

The referendum provides that cannabis products would be subject to state sales tax and that, when authorized by the legislature, a municipality may pass a local ordinance to charge a local tax on cannabis products.

A currently proposed model would allow the state to derive revenues from the basic 6 percent sales tax that applies to all goods. In addition, municipalities will be permitted to charge an extra 2 percent tax. Most of the details remain to be worked out, including how these revenues would be used. 

How much could the state and municipalities generate from marijuana legalization and how could those funds be used?

Once a market is established and regulations are in place, it is believed that marijuana sales could generate as much as $126 million in annual state revenues. Deciding how to use the funds generated from taxes and licensing fees will surely be among the contentious issues the state will have to deal with.

The most urgent justification for legalizing marijuana is the expectation of significant tax revenues that could be used to plug some of the financial gaps in the state budget from the pandemic shutdowns.

Some fees would likely go into a fund to pay for the CRC’s operating costs. Other revenues might be used to reimburse local police departments for training officers to recognize impairment. 

How long will it take for legislation legalizing marijuana to pass?

In Massachusetts, it took two years from the date of the referendum before the first dispensary opened. In Maine, it took four. There will be pressure to move the New Jersey process along more quickly, so that the state can stay ahead of neighboring states like New York, which have not yet legalized marijuana but seem likely to do so soon.