PTI Reform Needed Following Marijuana Law Changes

Often in our practice, our clients avoid jail time in exchange for enrollment in a diversionary program, like the Pretrial Intervention (PTI), or Conditional Discharge (CD) program. This allows them to enroll in a program to demonstrate to the court their intent on self-improvement, and allows their record to remain clean so long as they keep it that way in the future.

Often these diversionary programs are a result of simple marijuana possession cases, for example, where our clients retained us when they are caught in possession of small amounts of marijuana and/or marijuana paraphernalia.

However, now, because New Jersey voters and the State Legislature have legalized possession of marijuana of up to six ounces (more information here), and the legislature has moved to expunge past marijuana possession convictions, it seems the State is moving towards a New Jersey where marijuana offenders are, at the very least, punished less than they used to be.

Recently, a new problem has arisen where our past clients’ PTI acceptances are precluding them from enrolling a second time. Whereas, with the old laws, PTI is a program defendants can only enroll in once, now that the offending crime is legal, shouldn’t these defendants have another chance at PTI? Given that people of color are 3.5 times more likely to be arrested for Marijuana possession as their white counterparts, we submit that the counties should demonstrate their commitment to equity by allowing these residents, that were previously enrolled in PTI for something that is now legal, to have a chance at PTI.

Our offices had a similar case recently, where our client was precluded from PTI because they already had a PTI enrollment for marijuana. Our offices were aware of this and we mentioned in court that we were going to appeal the rejection decision. As a result of our indicating a desire to appeal, the State offered us a favorable offer.

The Office of the Public Defender has indicated to us that the Attorney General’s office does take the position that prior Conditional Discharges cannot count against a defendant’s entry into PTI. County prosecutors are not following this Attorney General and Public Defender position. They cite State V. O’Brien, a case where a Superior Court Judge held that a prior conditional discharge, even if vacated, bars PTI admission. As such, our offices will be fighting strongly on all PTI cases, advocating for our clients in this area.

Our offices have an acute awareness of the rules regarding PTI and Conditional Discharge programs. We handle these issues daily, and many of our clients have avoided jail time as a result of being accepted into PTI. If you have questions about your case, or you were charged with a crime and you believe you qualify for PTI or a Conditional Discharge, please reach out to our offices and we will gladly assist you.