New Jersey Attorney General Issues Memorandum of Guidance for Marijuana Prosecution

On Wednesday, August 29, 2018, New Jersey Attorney General Gurbir S. Grewal issued a Memorandum of Guidance “Regarding Municipal Prosecutors’ Discretion in Prosecuting Marijuana and Other Criminal Offenses.” To read this complete Memorandum of Guidance (hereafter, “Memorandum”) online, click here. Attorney General Grewal issued this Memorandum more than a month after Jersey City, NJ officials tried to decriminalize recreational use of marijuana. Responding to this attempt, Grewal first issued a letter to void the decriminalization followed by an order for a 30-day postponement for marijuana prosecutions throughout New Jersey. During this 30-day time period, the new guidelines for marijuana prosecution, which can be seen in the Memorandum, were created. The 30-day postponement order is set to expire on September 4, 2018.

As the Memorandum is a long and cumbersome nine pages, for your convenience, we have summarized the Memorandum’s key takeaway points:

The first part of the Memorandum addresses the question whether a municipal prosecutor may adopt a policy or practice of “marijuana decriminalization” under which the prosecutor and/or his subordinates categorically will not pursue convictions for statutory offenses related to marijuana. As to this question, Attorney General Grewal answers “no” stating that, “The adoption of such a policy or practice would be an abuse of discretion and is therefore prohibited.”

While the Memorandum prohibits municipal prosecutors from adopting a policy that stops prosecution for all marijuana-related offenses, the Memorandum does however authorize municipal prosecutors to use their prosecutorial discretion on a case-by-case basis for marijuana-related offenses. The second part of the Memorandum discusses permissible exercises of prosecutorial discretion by municipal prosecutors at different points in the course of a prosecution. The Memorandum’s guidelines discuss how municipal prosecutors might appropriately exercise their discretion at different points in the prosecution of marijuana-related offenses including case selection and initiation, plea agreements, amendments and dismissals, sentencing, diversion programs, and community court.

A noteworthy part of the Memorandum concerns amending or dismissing a charge. The Memorandum states that while insufficiency of the evidence will usually be the basis for the amendment or dismissal of a charge, there are other reasons/circumstances that might justify amendment or dismissal. However, as the Memorandum notes, the relevant statutes and Court Rules do not specifically address what other reasons/circumstances might constitute “good cause” for an amendment or dismissal. Accordingly, the Memorandum provides the following guidance: “To the extent permitted by law, however, a municipal prosecutor should consider the impact of adverse collateral consequences of a conviction based on the specific circumstances or factors presented by the defendant or elicited by the court.” The Memorandum states that such circumstances or factors may include, but are not limited to:

• The age of the defendant, and the nature and extent of the defendant’s prior criminal record;
  
• The nature and circumstances of the offense and the arrest;
  
• Adverse employment or military enlistment consequences (including hindering or precluding future employment, access to professional/occupational licensing, or ability to enlist in the armed services);
  
• Adverse immigration consequences;
  
• Adverse educational consequences (including potential removal from school or student housing and hindering or precluding access to student financial assistance);
  
• Adverse housing and other government benefit consequences (including hindering or precluding future access to public housing and monetary benefits from the government);
  
• Adverse familial consequences (including parenting/family status changes and financial or other burdens for family members); and
  
• Other factors identified in the National Prosecution Standards published by the National District Attorneys Association.

In a separate statement, Attorney General Grewal summarized the policy set forth in the Memorandum as follows: “The guidance that I am issuing today confirms that municipal prosecutors can responsibly exercise discretion to deal with minor marijuana offenses in a progressive, equitable manner, while respecting the rule of law.”

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