Court loss for four N.J. men with prior marijuana charges

Ruling shows need for legislative fix, lawyer says

By: - June 9, 2022 4:30 pm

An appeals court ruled against four men who said their prior marijuana charges shouldn't prevent them from participating in a diversionary program. (Photo by Sean Gallup/Getty Images)

A New Jersey appeals panel on Thursday ruled against four men who sought to enter a diversionary program for first-time criminal offenders even though they all had used a similar program previously when charged with marijuana possession.

One lawyer who supported the men in court says the decision flies in the face of a state law the governor signed last year decriminalizing marijuana possession and making it easier for people with prior pot arrests to get such charges expunged. The law is intended to help repair the decades-long harms of the failed war on drugs, which especially hurt low-income communities of color.

But Judge Hany A. Mawla, writing for a three-judge panel, said diversionary programs like pretrial intervention and conditionary discharges — which allow offenders to avoid incarceration if they participate in rehabilitative measures like counseling, community service, and restitution — were intended only to be used once, even if the first time was for possession of a now-legal drug.

He pointed to a 2013 state law that bars people who have participated in conditional discharges, which is for low-level offenders, from participating in a similar diversionary program for more serious offenders called pretrial intervention.

The four defendants at the root of Thursday’s ruling all had marijuana possession charges dismissed after they participated in conditionary discharge diversionary programs.

They later applied for pretrial intervention after getting charged with more serious offenses ranging from attempted burglary to conspiracy to commit credit card fraud.

In one case, a trial judge denied pretrial intervention, saying the defendant had already used up his one shot at a diversionary program when his prior marijuana charge was conditionally discharged. In the other three cases, trial judges approved pretrial intervention, saying the prior conditional discharges — which occurred before marijuana was legal in New Jersey — didn’t count as first offenses, given that legislators subsequently decriminalized marijuana.

Hany affirmed the denial in the first case and reversed the judges’ rulings in the other three, saying legislators failed to dispel discrepancies between two state statutes — the 2013 law on diversionary programs and the 2021 law decriminalizing marijuana — that appear to be at odds with each other.

“We cannot inject language into a carefully worded statute,” Hany wrote.

Alexander Shalom of the American Civil Liberties Union of New Jersey, who argued the case on amicus, said attorneys are considering asking the New Jersey Supreme Court to weigh the matter.

“The appellate court took a very narrow reading of what the marijuana legalization bill did, and it failed to account for the fact that the legalization bill was explicitly designed to remedy the gross injustice that had been perpetuated by the marijuana prohibition scheme,” Shalom said. “We get the idea that generally we only want to give people one bite at the apple. But what if the thing for which they got the first diversion was something so discriminatory and so wrong?”

There already is legislation in play that aims to dispel the confusion between the two state statutes, and the ACLU-NJ supports that bill, Shalom added.

Assemblyman Raj Mukherji (D-Hudson) and Assemblywomen Angela McKnight (D-Hudson) and Annette Quijano (D-Union) introduced a bill in January that would allow people who participated in conditional discharge for a marijuana crime to again participate in a pretrial diversionary program if they get charged with a new crime, if their marijuana offense is no longer considered illegal under last year’s law legalizing recreational marijuana.

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Dana DiFilippo
Dana DiFilippo

Dana DiFilippo comes to the New Jersey Monitor from WHYY, Philadelphia’s NPR station, and the Philadelphia Daily News, a paper known for exposing corruption and holding public officials accountable. Prior to that, she worked at newspapers in Cincinnati, Pittsburgh, and suburban Philadelphia and has freelanced for various local and national magazines, newspapers and websites. She lives in Central Jersey with her husband, a photojournalist, and their two children.