Legalize it? The Problems Marijuana Legislation Faces in New Jersey

I. Senate Bill 1896

            The notion of legal recreational marijuana is gaining support in the State of New Jersey. On March 27, 2014, New Jersey State Senator Nicholas P. Scutari (“Scutari”) introduced Senate Bill (“S”) 1896.[1]  If passed, the bill would legalize the possession and personal use of small amounts of marijuana, the sale of marijuana, and the growth of marijuana.[2]  A 7% sales tax would be levied upon marijuana sold or transferred to a marijuana product manufacturer or retail store.[3]  According to the bill, 70% of the potential funds raised would be distributed to the Transportation Trust Fund, 20% would be distributed to the Drug Enforcement and Demand Reduction Fund, and 10% would be dedicated to, “programs addressing women’s health, family planning, postpartum depression awareness, smoking cessation, and HIV-awareness.”[4]

            On May 8, 2014, Assemblywoman Linda Stender (“Stender”) and Assemblyman Reed Gusciora (“Gusciora”) introduced general Assembly Bill (“A”) 3094.[5]  A3094 is a companion bill identical to the bill Scutari introduced to the Senate on March 27, 2014.[6]  A Rutgers-Eagleton poll showed that 49% of registered voters favor complete legalization of marijuana.[7]  According to the poll, this is a fourteen-point increase in support since 2011.[8] However, both bills have numerous hurdles to overcome before they become law.

II. Medicinal Marijuana: Failure to Launch

                  On October 1, 2010, the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) went into effect.[9]  CUMMA provides for the use of Medical Marijuana by qualifying patients with certain debilitating medical conditions.[10]  CUMMA also defines “debilitating medical conditions,” (1) seizure disorder that is resistant to medical therapy; (2) certain viruses or cancer; (3) sclerosis and terminal cancer; and  (4) any other medical condition approved by the Department of Health and Senior Services (“DHSS”).[11]  The Act instructs the DHSS to accept applications from nonprofit entities to establish dispensaries throughout the State.[12]  Specifically, the Act states that, “[the] DHSS is to seek to ensure the availability of alternative treatment centers throughout the State, including, to the maximum extent practicable, at least two each in the northern, central, and southern regions of the State, respectively.”[13]  The Act is seemingly simple and comprehensive.  However, due to procedural obstacles, the DHSS is yet to produce a medical marijuana infrastructure that meets even the most basic requirements established by CUMMA.  

            On January 18, 2014, the New Jersey Superior Court Appellate Division issued its opinion in Caporusso v. N.J. Dep’t. of Health and Senior Services.[14]  Here, the plaintiffs were qualified patients under CUMMA alleging that they had been denied access to medical marijuana because of the Department of Health’s (“DOH” formerly known as the DHSS) failure to implement CUMMA as mandated.[15]  The plaintiffs sought, among other things, to compel the approval and opening of the remaining dispensaries within sixty (60) days of the decision.[16]  The facts of this case illustrate the immense task that must be undertaken in order to make CUMMA a reality.  In denying the plaintiff’s request, the court stated that:

Not only must the technical requirements of the Act be met and the information contained in the application verified, but an ATC . . . The non-profit corporations . . . were required to obtain a location, local land-use permits or variances, necessary equipment, inventory, and financing. The ATCs hired professional and non-professional staff, and implemented administrative, production, security, quality control, and distribution procedures. They needed to fit-out operational space, train personnel, commence growing product, and meet state health, safety, and security inspection standards. Approval of ATC operations requires review and input from other State agencies including the Departments of Law and Public Safety, . . . the State Police, . . . and the Division of Consumer Affairs, . . . and necessitates municipal inspection and permitting. Some ATCs met opposition by communities wary of such an enterprise being located within its boundaries. Even now it appears two ATCs await requisite site permits.[17]

            The aforementioned quote explains that although CUMMA’s minimum requirement of approval by the DOH of the six dispensaries has been met, only three dispensaries have begun operation.[18]  If this novel law is any indication of how marijuana legislation will proceed in the future, both S1896, and its companion bill A3094, have a long way to go before blazing any trails.  However, S1896 and A3094 may not have to deal with the procedural obstacles that CUMMA faces.  This seems to be the case because it is unlikely that the Bill will promulgate into law in the first place.

III. Obstacles: Opposition, Experiment, and Death

            Colorado, which is the first state to legalize the recreational use, growth, and distribution of marijuana, is projected to raise an estimated $98 million in resulting tax revenue in its inaugural year.[19]  These hard and fast numbers show that legalization can be a substantial source of revenue for a state.  Despite this fact, S1896 is not likely to become law without current Governor of New Jersey Chris Christie’s (“Governor Christie”) signature. Governor Christie has repeatedly stated that he will not sign legislation for recreational marijuana.  He recently stated, “I am not going to be the governor who is going to tell our children and our young adults that marijuana use is okay, because it’s not. I don’t care about the tax money that may come out of it.”[20]  The Rutgers-Eagleton Poll suggests the Governor is not alone in his opposition to the legislation, as less than 50% of New Jersey voters favor complete legalization.[21]

            Substantiating the misgivings regarding legalization, a new study shows that mild recreational use of marijuana may be more detrimental than was previously known.[22]  The study suggests that smoking marijuana at least once a week can cause changes in brain anatomy.[23]  The areas of the brain that are affected control pleasure, reward, and enforced learning.[24]  The lead author in the study, Jodi Gilman, states that, “Drugs of abuse can cause more dopamine release than natural rewards like food, sex and social interaction. In those you also get a burst of dopamine but not as much as in many drugs of abuse. That is why drugs take on so much salience, and everything else loses its importance.”[25]

            Recent developments in Colorado may also help to thwart the legalization of marijuana in New Jersey.  The first death linked to marijuana, since Colorado legalized recreational use, occurred on March 11, 2014.[26]  There, a college student that attended Northwest College, in Wyoming, died while visiting Denver, Colorado.[27]  He jumped to his death from his Holiday Inn hotel room.[28]  The coroner cited marijuana intoxication as a significant contributing factor.[29]  In another case that occurred on April 14, 2014, a woman was murdered by her husband; he had purchased and ingested edibles containing tetrahydrocannabinol (“THC”), the active ingredient in marijuana.[30] The husband is said to have taken the edibles, and possibly pain killers, and was hallucinating as a result.[31]

            At the very least, these recent stories in the press will raise serious questions about legalizing recreational use of marijuana in New Jersey.

IV. Conclusion: Not Today, But Maybe Tomorrow

            It is difficult to see how S1896 and its companion bill will pass their respective legislative bodies without the support of the majority of the constituents in the State.[32]  It is even more difficult to contemplate how the bills, once consolidated, will pass a seemingly inevitable veto by Governor Christie—should the bills even make it through the legislature.[33]  Accordingly, it seems unlikely that the current legislation will succeed.  However, given the increase in voter support, the evidence of potential tax revenue, and more so that the notion of legal marijuana now has support in both branches of the New Jersey legislature, there may indeed be a future for legalized recreational marijuana use in New Jersey.[34]

 

*Michael Mellon is a May 2015 J.D. candidate at Rutgers School of Law – Camden. He may be contacted by email at Michael.Mellon@rutgers.edu.

[1] S.B. 1896, 216th Leg., 2014-2015 Sess. (N.J. 2014).

[2] Id.

[3]  Id. at 6.

[4]  Id.

[5] Gen. Assemb. B. 3094, 216th Leg., 2014-2015 Sess. (N.J. 2014).

[6]  Id.

[7]  Rutgers-Eagleton Poll Blog, NJ Support for Pot Decriminalization, Eagletonpollblog (April 15, 2014, 12:01 AM), http://eagletonpollblog.wordpress.com/. See also, Voters Split on Recreational Marijuana, Quinnipiac University (April 10, 2014), http://www.quinnipiac.edu/news-and-events/quinnipiac-university-poll/new… (finding that 48% of New Jersey voters favor legalizing possession of small amounts of marijuana).

[8]  Rutgers-Eagleton Poll Blog, supra note 7.

[9] N.J. STAT. ANN. § 24:6I-1 (West, Westlaw Current with laws effective through L.2014, c. 8 and J.R. No. 1).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Caporusso v. N.J. Dep’t. of Health and Senior Servs., 82 A.3d 290 (N.J. Super. Ct. App. Div. 2014).

[15] Id. at 295.

[16] Id. at 300.

[17] Id. at 301.

[18] Id. at 294-95.

[19] Robin Respaut, Colorado Will Bring in More Than $100 Milion, BUSINESSINSIDER.COM (April 12, 2014, 8:26 AM), http://www.businessinsider.com/r-colorado-legalized-marijuana-tax-revs-a… But see, OFFICE OF RESEARCH AND ANALYSIS, Marijuana Taxes, Licenses, and Fees Transfers and Distribution March Sales Reported in April, Colo. Dep’t. Of Revenue (May 2014) available at, http://www.colorado.gov. 

[20] Brent Johnson, Christie: Not Even ‘Casual’ Marijuana Use is OK, NJ.COM (April. 22, 2014, 8:00 AM), http://www.nj.com/politics/index.ssf/2014/04/christie_not_even_casual_ma….

[21] Rutgers-Eagleton Poll Blog, supra note 7.

[22] Society for Neuroscience, Brain Changes Associated With Casual Marijuana Use in Young Adults, SCIENCEDAILY.COM (April 15, 2014), http://www.sciencedaily.com/releases/2014/04/140415181156.htm.

[23] Id.

[24] Terrance McCoy, Even Casually Smoking Marijuana Can Change Your Brain, WASHINGTONPOST.COM (April 16, 2014, 3:11 AM), http://www.washingtonpost.com.

[25] Id.

[26] John Ingold, Denver Coroner: Man Fell to Death After Eating Marijuana Cookies, DENVERPOST.COM (April 4, 2014, 9:20 AM), http://www.denverpost.com/news/ci_25475533/denver-coroner-man-fell-death….

[27] Id.

[28] Id.

[29] Id.

[30] Jordan Steffen, Woman Killed in Observatory Park, DENVERPOST.COM (April 17, 2014, 2:57 PM), http://www.denverpost.com/news/ci_25587527/observatory-park-husband-ate-….

[31] Id.

[32] Rutgers-Eagleton Poll Blog, supra note 7.

[33] Johnson, supra note 20.

[34] See generally, S.B. 1896, 216th Leg., 2014-2015 Sess. (N.J. 2014); Gen. Assemb. B. 3094, 216th Leg., 2014-2015 Sess. (N.J. 2014).