As Phil Murphy Pushes To Make Weed Legal In New Jersey, should He Pardon Past Pot Convictions

Photo Credit: Marko Georgiev

Gov. Phil Murphy repeatedly insists that raising tax revenue is not his main motivation for legalizing marijuana.

Murphy says he is driven by a desire to correct a long-festering “social justice” problem – African Americans have been disproportionately jailed or arrested on marijuana-related charges, even though use of the drug is roughly the same as whites.

So, given his commitment to right a societal wrong, the question was posed to him last week: Why not use that his vast executive powers to get the ball rolling? With one stroke of the pen, Murphy could commute sentences of non-violent offenders, pardon others or convene a blue-ribbon task force to recommend ways to expedite the process.

After all, President Barack Obama, the man who named Murphy an ambassador, took a similar dramatic step, reducing or eliminating sentences for 1,400 non-violent drug offenders at the end of his term. It was his way of declaring the “War on Drugs” a destructive failure.

Murphy did not reject the suggestion out of hand.

“It’s something that I think is a very fair point. I would not say no to that,” Murphy said in an interview with The Record and,  adding that his main goal right now is to enact a legalization law for recreational use that is “airtight and comprehensive as possible.”

He added: “And I think we can.”

Bold step for Murphy

Pardoning past marijuana offenders would be a bold step for Murphy who has, so far, let a wary Legislature stumble toward some consensus on a sensitive, multi-faceted issue.

Thorny social and legal questions have complicated the debate: How will police properly test drivers impaired by marijuana use? Will an illegal, black market still thrive if taxes on marijuana-product sales are too high? Will towns be able to close borders through restrictive zoning laws? How will low-income, urban communities be able to share in the coming boom?

But the issue of expunging, or clearing away someone’s past marijuana-related convictions has taken a back seat in the debate. Although several legalization proposals include a provision to expunge past convictions, they are broadly worded placeholders, suggesting that the details on how the process would work will get fleshed out after recreational marijuana is legalized.

And that could, in effect, maintain the “social injustice” that Murphy is so keen on eliminating. Licensed marijuana operators could begin selling legal pot to the public, possibly as early as next January, while many low-income people  — convicted for buying and selling the same product — could wait months, maybe years, before clearing the Mark of Cain blot from their records, a stain that has blocked them from getting jobs, loans, financial aid and housing.

“Its really a matter of simple justice. We cannot force people to continue carrying the negative stigma and the consequences of an arrest and behavior that we’re saying should be legal,” said Dianna Houenou, policy counsel for the American Civil Liberties Union of New Jersey, which has been a leading advocate for marijuana legalization.

Legalized but not forgiven

The issue of expunging records was also given back-seat status in other states that legalized marijuana. And now they’re playing catch up.

Former Vermont Gov. Peter Shumlin pardoned 192 people convicted of nonviolent marijuana offenses shortly before leaving office last year. At the time, the state had not fully legalized marijuana, but decriminalized, or eliminated penalties for marijuana-related offenses.

Lawmakers in Vermont went further earlier this year by fully legalizing the drug, but without creating a provision to expunge past offenses. Officials are only now just getting around to debating the issue.

Colorado legalized marijuana sales in 2014, but it wasn’t until last 2017 before the state approved a bill that allows people convicted of misdemeanor marijuana possession before Dec. 10, 2012, to petition to have their convictions sealed. The state’s Democratic governor, John Hickenlooper, is also exploring whether to release nearly 40 inmates convicted of nonviolent marijuana offenses.

California included a provision to clear past convictions when voters approved legalization in Proposition 64 in 2016. It applied to hundreds of thousands of cases, but only a relatively few have taken the time to petition the courts. That has prompted some local officials to take more aggressive steps.

San Francisco in January announced it would begin vacating thousands of minor marijuana convictions, and prosecutors are also reviewing an additional 4,000 felony cases for potential reductions. Officials in Seattle are considering a similar move — Washington state approved legalization in 2012.

Murphy, who says he’s eager to learn from past experiences of other states, also has the opportunity to take a more pro-active approach.

An executive action could move the issue to the front burner of the legislative debate. By pardoning 10 people, for example, whose lives have been upended by marijuana-related convictions. Murphy could also communicate to lawmakers the type of offenses he would like to see quickly cleared. And he could plainly make clear other procedural preferences he wants included in a bill that’s sent for him to sign.

Murphy could also call for the creation of a bi-partisan panel of lawmakers, social activists and lawyers to recommend a process to erase past convictions or records of arrests, one that would take effect the same day that the first batch of legal weed is sold.

A Christie precedent

Murphy would not be the first to have used his executive powers to frame the legislative debate.

On the eve before announcing his run for president in 2015, former Republican Gov. Chris Christie ordered his acting Attorney General to issue a new regulation that loosened the standards for obtaining a handgun permit, a move that bypassed the state’s tough handgun laws. (The Legislature rolled back that regulation earlier this year.)

Christie also issued an executive order last year declaring opioid addiction a public health crisis in New Jersey and imposing new limits on opioid prescriptions.

The idea of Murphy inserting himself into the debate with a bold executive order received a mixed reception.

Sen. Nicholas Scutari, D-Union, a leading proponent of legalization, said he doesn’t  want to get the legalization debate “bogged down” over which offenses could be eligible to expunged. Would a person convicted of driving under the influence be eligible? What about someone convicted of dealing multiple drugs including marijuana?

But he believes the lawmakers might be open to to participating in a Murphy-ordered panel that explores the issue.

Assemblywoman Annette Quijano, D-Union, sponsor of a separate bill that would expedite the expungement process once marijuana is legalized, argues that the issue should be debated “now,” rather than later. But she also said she was leery having the governor seize control of the debate through an executive order.

“I am never a fan of transferring the power of the Legislature,” she said. “I think it gets a fair hearing in the Legislature.”

Sen. Ron Rice, D-Newark, a foe of legalization, fears that legal marijuana looms as another drug plague on Newark and other low-income communities. While others stand to profit, his constituents stand to suffer from unforeseen consequences, he says.

“Social justice is just secondary,” said Rice, a former police officer, who has co-sponsored a bill that would decriminalize marijuana. “They want to move on money. It’s about taxes, They don’t care who they harm in the process.”