On a national level, 37 states have instituted some type of cannabis law reform policies: 11 states have legalized adult use cannabis, 15 states have decriminalized cannabis use, and 11 states have legalized medicinal cannabis. Despite more than half of the country legalizing or decriminalizing cannabis, law enforcement still made more than 6.1 million cannabis arrests over the past eight years. By comparison, police made more arrests for cannabis possession than for all violent crimes combined. A closer look at the numbers reveals that, on average, a Black person is 3.64 times more likely to be arrested than a white person, even though reports consistently show that Black and white people use cannabis at similar rates. In some states, however, Black people were up to six, eight or almost 10 times more likely to be arrested. (ACLU report, April 20, 2020, "A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform.")

On a state level, New Jersey consistently ranks as one of the top three states in the U.S. with the highest cannabis arrest rates, along with Texas and New York. Despite legalizing medicinal cannabis in 2012 and expanding the medicinal cannabis program in 2018, cannabis arrests have increased by 45.6% between 2010 and 2018 according to the ACLU. In 2017, New Jersey police made almost 38,000 arrests for marijuana possession/distribution, equating to 95 arrests per day. Consistent with national statistics, on average, Black people in New Jersey were 3.5 times more likely to be arrested for cannabis possession than white people, increasing from 2.81 times in 2010. However, in some counties, Black people were 7.5 (Warren), 9.34 (Morris) and 13.71 (Hunterdon) times more likely to be arrested for cannabis possession. All but 7 counties in New Jersey had a racial disparity above the national average.

New Jersey also has one of the most onerous expungement processes in the United States. According to the Legal Services of New Jersey, expungement petitions can take six months to a year or more and require a lengthy record gathering process. Moreover, if any component of the expungement application is missing, it can result in immediate dismissal, leaving the petitioner no choice but to start over again. This obstacle course results in a hefty price tag and heavy burden for petitioners looking to clean their record.

One need not look too far to discover the real-world impacts of an arrest and criminal record.  From eligibility for student loans, to housing, to employment opportunities, a cannabis related arrest can extinguish hope and cut off access to resources needed to escape the gravity of poverty. Far too often, as the ACLU demonstrates, the criminal justice system has negatively and disproportionately impacted people of color and their communities with respect to cannabis related activities. This unjust and unbalanced approach to law enforcement has also skewed the demographics of those able to participate in the legal cannabis industry.

Cannabis Dispensaries 'Essential' Businesses in the Era of COVID-19

On March 21, 2020, during the early days of the state lockdown due to the COVID-19 pandemic, Governor Murphy issued an order classifying medical cannabis dispensaries as "essential" businesses along with 20 other states. For the first time in American history, the once scorned devil's weed was declared essential along with supermarkets, gas stations and hospitals. With such a historic designation, New Jersey must reexamine its complicit past life and confront its means and mechanisms of social injustice and racial disparity. With medical cannabis dispensaries deemed "essential," it is time that New Jersey resurrect the conversation about how it plans to incorporate social justice and social equity initiatives for the communities of color that shouldered the heaviest burden of cannabis criminalization. New Jersey is the fourth most racially diverse state in the United States and, given its disproportionate hard-on-crime track record, New Jersey must take a proactive approach to ensure that cannabis legalization is accomplished through the lens of social equity to create a cannabis industry that reflects the state's diverse population.

November 2020 Ballot Initiative

The November 2020 ballot initiative is an opportunity for the state of New Jersey to yet again emerge as a leader, especially in the tristate area, not only with respect to the evolving economic demands, but also with respect to equity, justice, and common-sense policy that reverses the trends explicated in the ACLU Report. On Nov. 2, 2020, New Jersey residents will hold the fate of cannabis legalization in their hands. For the first time, voters will be met with the following ballot question: "Do you approve amending the Constitution to legalize a controlled form of marijuana called 'cannabis'?" Years' worth of advocacy, lobbying and educating boils down to one scientifically inaccurate question. According to a Monmouth University study, 62% of New Jersey residents are in favor of adult use legalization, providing a hopeful outlook for the New Jersey cannabis industry. A vote to legalize cannabis would not only be a step toward righting past wrongs, but it would also move New Jersey and its residents into a fast-growing new marketplace, where currently more than 78 million Americans now live with legal, regulated, and taxed recreational cannabis and its revenue streams.

In conjunction with ongoing disproportionate arrest rates, lack of access to capital, professional services and technical assistance, the battle for a license in a hyper-competitive environment such as New Jersey is a steeper climb for communities of color. According to New Frontier Data, even though cannabis remains a schedule 1 "drug," the U.S. legal cannabis industry was estimated to be worth $13.6 billion in 2019, and yet only 4.3% of cannabis owners were Black and 5.7% of owners were Latino, while 81% of cannabis owners were white. While the economic benefits are large, New Jersey must bear in mind that it is the State's responsibility to enact social equity provisions that address the impact its criminal justice policies have disproportionally had on communities of color. It is blatantly duplicitous to designate cannabis operators as "essential" and allow licensed cannabis operators (the majority being white owned) to cultivate, manufacture and dispense cannabis at a premium, while imprisoning communities of color for a minuscule fraction of what current operators are profiting from.

The Jake Honig Compassionate Use Medical Cannabis Act ("Jake Honig Act"), enacted July 2, 2019, made a lackluster attempt to include what legislators refer to as "social equity provisions." These provisions include: (1) micro-licenses with overbearing quantity, ownership and size restrictions; (2) conditional licenses; (3) percentage allocations of licenses to be awarded to minority, women and disabled veteran certified businesses; and (4) establishing the Office of Minority, Disabled Veterans, and Women Medical Cannabis Business Development. July 2, 2020, will mark one year since the Jake Honig Act was passed, and New Jersey has yet to implement any of these "social equity" initiatives, due in large part to the court-ordered stay on pending licenses that prohibits the NJ Department of Health (NJDOH) from reviewing and awarding licenses from the July 2019 RFA.

The "social equity provisions" cited in the JHA are simply not enough to guarantee the participation of the communities disproportionally harmed by the war on drugs. Legalized states such as Massachusetts, Illinois and Washington, which are in the process of implementing their social equity programs, provide evidence of what a social equity program could look like. While it has not been long enough to assess the viability and success of these social equity programs (and most have failed at implementation), there are already examples of various avenues New Jersey could take.

New Jersey has the late-mover advantage of being able to look to other states for social equity programs that have successfully resulted in licensure for social equity. For example, adult use legalization should include state funded educational programs, priority licenses for those that meet the definition of a social equity applicant, grants derived from cannabis tax revenue, state funded incubator programs to provide mentorship and access to professional services, vehicles for micro licenses to evolve to full scale licenses, technical assistance for filling out the lengthy applications, and automatic expungements that puts the burden on the state rather than the petitioner. While various decriminalization bills have been introduced in the past month, none of these bills includes comprehensive social equity provisions.

Conclusion

In order to create and implement true social equity provisions, it's imperative that collaboration exist between local communities, social justice advocates, law enforcement, health professionals, and state and local officials to ensure that a strong foundation is created from the beginning. New Jersey has a significant and rare opportunity to be the first state in the tristate area to enact a strong, robust legal cannabis industry that addresses the harm caused by the criminalization of a medicinal plant—New Jersey is after all, the Garden State.

Jessica F. Gonzalez is an associate in the Cannabis Law Group at Bressler, Amery & Ross in New Jersey, and Brian J. Ellis is Counsel in Bressler's New Jersey and New York offices. The views set forth in this article are the authors' alone, and do not necessarily reflect those of Bressler, Amery & Ross, P.C.