Bill > S2535

Introduced Session

This bill would provide for various "social justice" reforms, some based on criminal justice and others based on civil justice, which would reduce the legal consequences associated with certain marijuana and hashish offenses as well as raise awareness of the availability of expungement relief, concerning both marijuana and hashish offenses and more generally. Regrading Marijuana and Hashish Offenses Under current law, manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense (hereafter shortened to just distributing, which includes possessing or having under control), one ounce or more but less than five pounds of marijuana, or five grams or more but less than one pound of hashish, is punishable as a crime of the third degree; this crime can be punished by a term of imprisonment of three to five years, an enhanced fine of up to $25,000, or both. Distribution of any smaller amounts, that is, less than one ounce of marijuana or less than five grams of hashish, is punishable as a crime of the fourth degree; this crime can be punished by a term of imprisonment of up to 18 months, a fine of up to $10,000, or both. See N.J.S.2C:35-5, subsection b., paragraphs (11) and (12). The bill would retain as a crime of the third degree the distribution of less than five pounds of marijuana, but raise the minimum amount that falls under this degree to be more than one pound instead of one ounce, and distribution of less than one pound of hashish would also remain a third degree crime, but the minimum amount for this violation would be more than 80 grams instead of five grams; it would regrade the distribution of lesser amounts of marijuana and hashish, as well as change the amount pertaining to each one as follows: - one pound or less of marijuana, or 80 grams or less of hashish would become an unlawful act. A first violation would be subject to a written warning, and a second or subsequent violation would be subject to a civil penalty of $25 or the performance of community service in lieu of payment of the penalty. The civil penalty would be recovered in a summary proceeding in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), before the municipal court having jurisdiction. Whenever community service was imposed, the value of each hour of service would be considered to be not less than the State or federal minimum wage, whichever wage is higher, and the total value of community service imposed could not exceed $25. The bill would also regrade, and change the applicable amounts for, the unlawful possession of marijuana or hashish, which is currently a crime of the fourth degree (up to 18 months imprisonment; up to $10,000 fine; or both) when the act involves more than 50 grams of marijuana or more than five grams of hashish, and, when the act involves lesser amounts, a disorderly persons offense (up to six month imprisonment; up to $1,000 fine; or both). See N.J.S.2C:35-10, subsection a., paragraphs (3) and (4). Under the bill, unlawful possession would be: - a disorderly persons offense (up to six month imprisonment; up to $1,000 fine; or both) when the act involved more than one pound of marijuana or more than 80 grams of hashish; and - an unlawful act subject first to a written warning, and thereafter subject to a civil penalty of $25, or the performance of community service in lieu of payment of the penalty, when the act involved one pound or less of marijuana or 80 grams or less of hashish. Similar to distribution when graded as an unlawful act, the civil penalty would be recovered in a summary proceeding in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), before the municipal court having jurisdiction. Whenever community service was imposed, the value of each hour of service would be considered to be not less than the State or federal minimum wage, whichever wage is higher, and the total value of community service imposed could not exceed $25. Regarding the above described unlawful acts of distribution or possession subject to a written warning, and thereafter a civil penalty or community service in lieu of payment of the penalty, the odor of marijuana or hashish, or burnt marijuana or hashish, would not constitute reasonable articulable suspicion to initiate a search of a person to determine a violation. Additionally, a person would not be subject to arrest, being detained, or otherwise being taken into custody unless the person had committed another violation of the law. Also, a person who committed an unlawful act subject to a written warning, or civil penalty or community service in lieu of payment of the penalty, could not be deprived of any legal or civil right, privilege, benefit, or opportunity provided pursuant to any law solely by reason of committing that act, nor would committing one or more such acts modify any legal or civil right, privilege, benefit, or opportunity provided pursuant to any law. All local and county law enforcement authorities would, following the submission process used for the uniform crime reporting system established by P.L.1966, c.37 (C.52:17B-5.1 et seq.), submit a quarterly report to the Uniform Crime Reporting Unit, within the Division of State Police in the Department of Law and Public Safety, or to another designated recipient determined by the Attorney General, containing the number of unlawful acts of distribution or possession subject to a written warning, or civil penalty or community service in lieu of payment of the penalty, committed within their respective jurisdictions, plus the race, ethnicity, gender, and age of each person committing a violation, and the disposition of each person's violation. These violations and associated information, along with a quarterly summary of violations investigated and associated information collected by the State Police for the same period would be summarized by county and municipality in an annual report, and both quarterly summaries and annual reports would be made available at no cost to the public on the State Police's Internet website. Using or being under the influence of marijuana or hashish, or failing to voluntarily deliver such to a law enforcement officer, both currently disorderly persons offenses (up to six months imprisonment; up to $1,000 fine; or both), would no longer be illegal acts, and thus there would be no legal consequences flowing from using, being under the influence of, or failing to deliver to law enforcement, marijuana or hashish. Using or possessing with intent to use drug paraphernalia to ingest, inhale, or otherwise introduce marijuana or hashish into the human body would also no longer be considered an illegal act; under current law, it is graded as a disorderly persons offense. Notwithstanding that using or being under the influence of marijuana or hashish, or using or possessing drug paraphernalia to use with marijuana or hashish, would no longer be illegal acts, the smoking of marijuana or hashish, and the use of drug paraphernalia for these substances, could be prohibited or otherwise regulated on or in any property by the person or entity that owns or controls that property, including multifamily housing that is a multiple dwelling as defined in section 3 of P.L.1967, c.76 (C.55:13A-3), the units of a condominium, as those terms are defined by section 3 of P.L.1969, c.257 (C.46:8B-3), or a site in a mobile home park as defined in section 3 of P.L.1983, c.386 (C.40:55D-102), which site is leased to the owner of a manufactured home, as defined in that section, that is installed thereon. Lastly concerning the above described unlawful acts of distribution or possession of marijuana or hashish, as well as using or being under the influence of such, none of these acts: (1) could be prohibited or restricted based on any conditions imposed with respect to court-ordered pretrial release or probation, or with respect to certified parole release, or (2) could be considered a violation of the terms of pretrial release, probation, or parole. Reducing the Legal Consequences of Certain Marijuana and Hashish Offenses No court would have jurisdiction over any charge, including any charge of delinquency, except to the extent required to dismiss, withdraw, or terminate the charge, based on a prior small amount distribution offense involving less than one ounce of marijuana or less than five grams of hashish, or a prior possession offense involving 50 grams or less of marijuana or five grams or less of hashish, acts which would now only be punishable as an unlawful act subject to a written warning, or civil penalty or community service in lieu of payment of the penalty, unless a final judgment of conviction or adjudication of delinquency on the past offense had been entered on or before the bill's effective date. These non-prosecutable charges and cases would be expeditiously dismissed, which could be accomplished by appropriate action by a law enforcement agency, or on a motion to the court with jurisdiction over a case, or the court's own motion, based upon guidelines, administrative directives, and court orders issued by the Attorney General, the Administrative Director of the Courts, and the Supreme Court. Any past or future charge, conviction, or adjudication of delinquency for an even broader array of marijuana and hashish offenses, as well as future unlawful acts of distribution and possession, would not be considered whenever the Pretrial Services Program established by the Administrative Office of the Courts conducted a risk assessment on a person for the purpose of making recommendations to a court about an appropriate pretrial release or pretrial detention decision for that individual in accordance with sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.). These non-considered offenses would include: - unlawful distribution of, or possessing or having under control with intent to distribute, less than five pounds of marijuana, or less than one pound of hashish, in violation of paragraph (11) of subsection b. of N.J.S.2C:35-5 or, for past violations, paragraph (12) of that subsection b., a past or future violation of either of those paragraphs and a violation of subsection a. of section 1 of P.L.1987, c.101 (C.2C:35-7) or subsection a. of section 1 of P.L.1997, c.327 (C.2C:35-7.1), for distributing, or possessing or having under control with intent to distribute, on or within 1,000 feet of any school property, or on or within 500 feet of the real property comprising a public housing facility, public park, or public building; - obtaining or possessing marijuana in violation of paragraph (3) of subsection a. of N.J.S.2C:35-10 (past offenses, more than 50 grams; future offenses under the bill, more than one pound), or, for past offenses, possession of 50 grams or less, or using, being under the influence of, or failing to voluntarily deliver to a law enforcement officer, any amount of marijuana or hashish in violation of paragraph (4) of subsection a., subsection b., or subsection c. of N.J.S.2C:35-10; or - a past violation involving any of the aforementioned offenses and using or possessing with intent to use drug paraphernalia with that marijuana or hashish in violation of N.J.S.2C:36-2. The bill would also establish grounds for post-conviction relief due to a past conviction or adjudication of delinquency for any of the above described marijuana or hashish offenses, which would permit an opportunity to have a sentence reduced or changed as permitted by the court. New Form of "Virtual" Expungement for Certain Marijuana and Hashish Offenses Beginning immediately upon the enactment of the bill, any arrest, charge, conviction, or adjudication of delinquency, and proceedings related thereto, for any of the above described broad list of marijuana or hashish offenses that occurred prior to the bill's effective date would be deemed not to have occurred (other than, generally, with respect to the consequences of any sentence set forth in a judgment of conviction), providing such legal relief without need to petition a court for an expungement order granting such result. While persons would be able to respond to questions about such past occurrences accordingly, information about such would still need to be revealed if seeking employment within the judicial branch or with a law enforcement or corrections agency, and the record would be subject to review in accordance with N.J.S.2C:52-15 et seq. Sealing of Records Associated With Unlawful Acts of Marijuana and Hashish Distribution or Possession Once the Administrative Office of the Courts develops and maintains its system for sealing records related to various marijuana and hashish distribution, possession, and drug paraphernalia offenses pursuant to section 6 of P.L.2019, c.269 (C.2C:52-5.2), then all records relating to unlawful acts of marijuana or hashish distribution as described above, for which a civil penalty or community service in lieu of payment of the penalty was imposed, would, upon disposition of the case and any proceedings related thereto, be sealed based upon a court order of nondisclosure to the public of such records. Reforms Applicable to All Expungements and Sealed Records Penalties for Wrongful Dissemination of Expunged Records or Information The bill would increase the maximum fine, from $200 to $2,000, which could be imposed on a person who reveals to another the existence of an arrest, conviction, unlawful act violation, or related legal proceeding with knowledge that the record or information has been expunged or sealed. A person could also be subject to a term of imprisonment of up to six months because such an act is categorized as a disorderly persons offense. See N.J.S.2C:52-30. In addition, the bill provides that any person or entity regularly engaged in the business of collecting, assembling, evaluating or disseminating records on individuals for a fee is required to regularly update their records to ensure accuracy, promptly delete a record that has been expunged or sealed, provide clients with the date collected and explain to clients that records are valid only as of the date collected. Any such regularly-engaged person or entity who disseminates a record that has been expunged or sealed, and knows or should have known at the time of dissemination that the record has been expunged or sealed, would be liable to the individual who is the subject of the record for damages totaling $5,000 or the actual damages caused by the violation, whichever is greater, plus costs and attorney fees. Promoting Awareness of the Expungement Process The Administrative Director of the Courts would develop and maintain: - information, to be provided to a person upon request, about the expungement process and legal services programs Statewide and in each county which may be available to assist the person with an expedited expungement, pursuant to section 5 of P.L.2019, c.269 (C.2C:52-5.1), for the various marijuana and hashish distribution, possession, and drug paraphernalia offenses described above under the statement subheading for Reducing the Legal Consequences of Certain Marijuana and Hashish Offenses, or a "clean slate" expungement, which generally addresses a person's entire criminal record, pursuant to section 7 of P.L.2019, c.269 (C.2C:52-5.3); and - develop a multilingual public awareness campaign to promote awareness of the expungement process, as well as information on State, local, nonprofit and other private job training programs in consultation with the Department of Labor and Workforce Development, with a focus on assisting those persons eligible for an expedited expungement or "clean slate" expungement. Civil Justice Reforms In addition to the above described criminal justice relief largely focused on marijuana and hashish offenses and promoting awareness of the expungement process for clearing records, the bill would provide an array of civil protections against discrimination targeting persons with an arrest, charge, conviction, or adjudication of delinquency involving any of the aforementioned marijuana and hashish distribution, possession, and drug paraphernalia offenses described above under the statement subheading for Reducing the Legal Consequences of Certain Marijuana and Hashish Offenses, or targeting persons with a civil penalty or community service imposed in lieu of payment of the penalty for committing an unlawful act of distribution or possession with marijuana or hashish. These protections would include monetary penalties, enforceable by the State, against employers regarding employment actions or persons involved with mortgage lending activities, as well as a private cause of action for discrimination in public or private housing, real property, or any place of public accommodation. Lastly, the bill would make confidential, and no longer a government record subject to public inspection under P.L.1963, c.73 (C.47:1A-1 et seq.), the portion of any criminal record concerning a person's detection, apprehension, arrest, detention, trial or disposition for any of the aforementioned offenses, or any record concerning a person's commission of any of the aforementioned unlawful acts subject to a civil penalty, or community service imposed in lieu of payment of the penalty.

AI Summary

Committee Categories

Sandra Cunningham (D)*,  Ronald Rice (D)*,  Teresa Ruiz (D)*,  Nick Scutari (D)*,  Nilsa Cruz-Perez (D),  Vin Gopal (D),  Shirley Turner (D), 

Substituted by A1897/4269 (ACS/2R) (on 11/16/2020)

Official Document