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Home growers could still face draconian penalties once weed is legal in New Jersey

New Jersey is on the cusp of legalizing recreational marijuana, but residents caught growing even modest amounts could still face up to 20 years in prison.

Despite grappling for the last several years with legalizing and decriminalizing marijuana — a formal vote is scheduled for Thursday on enabling legislation to legalize marijuana after voters overwhelmingly approved a constitutional amendment last month to do so — the Legislature has no immediate plans to reduce draconian penalties for growing it.

“The Assembly is focused on meeting the January 1, 2021, deadline of a new statutory framework of decriminalizing personal possession and establishing a well-regulated new adult-use market,” said Kevin McArdle, a spokesperson for the Assembly’s Democratic majority, when asked why there’s been little effort to change grow laws.

Spokespeople for the Senate and Gov. Phil Murphy‘s office did not immediately respond to requests for comment.

Murphy and legislative leadership oppose letting New Jerseyans grow even a single plant, whether for medical or recreational use. Nor have they sought to remove or temper a law from the books that treats growing marijuana the same as making crystal methamphetamine, PCP and a host of other hard drugs.

Under current law, growing more than five pounds of marijuana or 10 plants can be prosecuted as “maintaining or operating a controlled dangerous substance production facility” — a first-degree crime punishable by 10 to 20 years in prison, with mandatory minimums that require those convicted to serve at least one-third of the sentence.

A different law offers prosecutors a little more discretion, categorizing growing more than 25 pounds or 50-plus plants as a first-degree crime, while growing between 10 plants and 50 plants or between five and 25 pounds is a second-degree crime punishable by five to 10 years in prison. Though there are no mandatory minimum sentences for those crimes, lawyers POLITICO spoke with said there’s usually a presumption of prison time.

Even growing a single marijuana plant is a third-degree crime under current law, punishable by three to five years in prison but with no mandatory minimum sentence attached.

Ten plants or five pounds may sound like a lot, but it’s far from a major grow operation. Marijuana plants weigh far more when they’re growing than after they’ve been harvested and dried and leaves and stems are ultimately discarded.

Neither the bill to legalize marijuana, NJ S21 (20R), nor a sweeping bill to decriminalize the drug, NJ S2535 (20R), address penalties for marijuana cultivation.

A bill the Senate passed in August would remove the mandatory minimum sentences from most nonviolent drug crimes, including growing 10 marijuana plants. But the measure stalled after it was revealed Sen. Nicholas Sacco (D-Hudson) slipped in an amendment to remove mandatory minimum sentences for official misconduct convictions, upsetting the bill’s sponsor in the Assembly.

To pro-pot activist Ed Forchion, who goes by the name “NJ Weedman,” the fact there has been no significant effort by lawmakers to change stiff anti-grow laws is one of the many signs the cannabis legalization legislation has been written with the help of corporations that want to profit off marijuana rather than residents and minority communities that have borne the brunt of “War on Drugs” enforcement.

Forchion said that as a protest, he grew 25 marijuana plants in the backyard of his Trenton restaurant, NJ Weedman’s Joint, and was not arrested. He’s also suing the state in federal court, arguing the recently-passed constitutional amendment unfairly treats minority communities differently than the for-profit industry.

“Big guys, corporations, they can violate federal law in the state of New Jersey and grow tons of marijuana,” Forchion said (marijuana remains illegal at the federal level). “But a little housewife down in South Jersey wants to grow ten plants in her backyard, she’ll be treated as a first-degree felon.”

New Jersey would be an outlier in legalizing weed but prohibiting home grow. Other jurisdictions that have legalized recreational marijuana — including Massachusetts and Washington, D.C. — allow residents to grow a limited number of plants.

Attorney Charles Gormally, co-chair of the cannabis industry group at the law firm Brach Eichler, said he believes the state will eventually tackle its grow laws.

“I think we’ll get to a place where the contradiction between home-grown cannabis and marketplace cannabis will be reconciled at some level,” he said.

Gormally said there could be reasons why the government, which will receive tax revenue from legal sales, and the companies that make money from the legal grow operations could have an interest in preventing home growers from “cutting into their turf.” But, he said, there are potential compromises, like issuing permits to allow residents to grow a small number of plants.

Gormally said he’s concerned that “if we miss the opportunity to clarify and correct that issue, law enforcement will pivot from worrying about cannabis on the street to worrying about cannabis in your backyard.”

While legislative leadership hasn’t come on board, there has been “momentum” behind leglalizing growing marijuana, said Amol Sinha, executive director of the ACLU-NJ.

Sinha said a conservative state senator, Gerald Cardinale (R-Bergen), expressed support for home grow at a recent hearing, and state Sen. Vin Gopal (D-Monmouth) pushed for medical users to be able to grow at home.

“One of our principles in the ACLU and NJ United for Marijuana Reform was to include home grow as a matter of economic and racial justice,” said Sinha, who said “geography, mobility and cost” will all be obstacles some residents will face in obtaining legal marijuana, whether recreational or medical.

“When we have prices that are in the hundreds of dollars per ounce, there’s going to be a subset of the population that’s priced out of it. And growing at home may be the more cost-effective way to grow the particular strains they may need,” he said. “There’s also the medical angle to this. Having home grow available to medical patients seems to be the logical next step.”

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