Municipal prosecutors have discretion but can't decriminalize marijuana, AG says

Municipal prosecutors can use their discretion in marijuana cases, but cannot adopt their own policies to decriminalize the drug, Attorney General Gurbir Grewal announced Wednesday. The guidance comes after Grewal had municipal prosecutors pause marijuana prosecutions until Sept. 4, while he had an advisory group look at how the cases should be handled. “A municipal prosecutor may not adopt a categorical policy or practice of refusing to seek convictions for statutory offenses related to marijuana,” the guidance determined, backing Grewal’s initial determination that a policy the Jersey City prosecutor adopted in July was not allowed. Instead, the guidelines state, “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.” While the Supreme Court has prohibited plea bargains for certain marijuana-related offenses, municipal prosecutors have some discretion to determine unilaterally — and based on the facts of individual cases — whether charges should be dismissed or amended. The prosecutors may also seek a lesser punishment at sentencing. Insufficient evidence usually will be the determining factor to amend or dismiss such a complaint, the guidelines state. But other reasons also might justify amendment or dismissal. “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,” Grewal said. “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.” The group put together by Grewal also looked at other policy changes to improve the equal, impartial and uniform administration of justice in municipal courts. Based in part on that input, Grewal will have the Division of Criminal Justice prepare recommendations for future action on several issues relating to municipal court prosecutions. That includes:

• 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,” Grewal said. “I look forward to addressing in the near future other, more fundamental issues affecting public confidence in our criminal justice system.”