TRENTON – Attorney General Gurbir S. Grewal today released new guidance addressing the scope and appropriate use of prosecutorial discretion in municipal court prosecutions of marijuana-related offenses. The guidance reaffirms that municipal prosecutors are not permitted to adopt their own policies to decriminalize marijuana. Instead, prosecutors handling marijuana cases may appropriately exercise prosecutorial discretion on a case-by-case basis, as they would when prosecuting any other type of criminal offense.

In July, Attorney General Grewal had requested that all municipal prosecutors in New Jersey pause marijuana-related prosecutions in municipal court until September 4, 2018, while his office solicited advice from a working group representing a broad spectrum of criminal justice stakeholders and developed statewide guidance. The request to pause prosecutions will now expire as scheduled, and municipal court prosecutions will proceed in accordance with the Attorney General’s guidance.

According to the guidance, “a municipal prosecutor may not adopt a categorical policy or practice of refusing to seek convictions for statutory offenses related to marijuana.” This prohibits policies like the one adopted in Jersey City in July, and is consistent with the Attorney General’s initial determination that Jersey City’s policy was void.

Instead, the Attorney General’s guidance states: “Municipal prosecutors should exercise their prosecutorial discretion in marijuana-related cases as they would in any other case—based on the particular facts and applicable law, and consistent with their ethical obligations.”

The Supreme Court has prohibited plea bargains for certain marijuana-related offenses, but municipal prosecutors have some discretion to determine unilaterally, and based on the facts of individual cases, whether charges should be dismissed or amended. In addition, at sentencing, municipal prosecutors may seek to lessen a defendant’s punishment or the collateral consequences of a conviction.

The guidance states that insufficiency of the evidence usually will be the basis for amending or dismissing of a municipal court complaint, but that other reasons also might justify amendment or dismissal. For example, according to the guidance, “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,” to the extent permitted by law.

“The guidance that I am issuing today confirms that municipal prosecutors can responsibly exercise discretion to deal with minor marijuana possession offenses in a progressive, equitable manner, while respecting the rule of law, including the authority of the Legislature and the Courts,” said Attorney General Grewal. “Municipal prosecutors cannot decriminalize conduct that the Legislature has criminalized. They cannot adopt blanket policies of non-prosecution. But municipal prosecutors can and should strive to ensure that individual justice is done in individual cases.”

In addition to discussing the scope and appropriate use of prosecutorial discretion in marijuana-related cases, the working group responded to the Attorney General’s request to identify other policy changes to improve the equal, impartial, and uniform administration of justice in our municipal courts.

Based in part on the working group’s input, the Attorney General will be directing the Division of Criminal Justice to prepare recommendations for future action on several issues relating to municipal court prosecutions. Questions to be addressed by the Division may include:

• Should the Code of Ethics for County Prosecutors be extended to apply to municipal prosecutors?
• Should prosecutors adopt practices and policies to address criminal justice issues raised in the recent Report of the Supreme Court Committee on Municipal Court Operations, Fines, and Fees?
• Is there an appropriate role for prosecutors to play in advising defendants of potential collateral consequences of convictions?
• Do Municipal Prosecutor Supervisors or Liaisons in County Prosecutors’ Offices require additional guidance as to their duties?

“Today’s guidance on marijuana-related prosecutions is only one step toward improving the administration of justice in our municipal courts,” said Attorney General Grewal. “I look forward to addressing in the near future other, more fundamental issues affecting public confidence in our criminal justice system.”

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