How Bail Reform Trapped Marijuana Activist NJ Weedman In Jail
Through the metal detectors, past the indoor basketball court dotted with men in orange, and into a small whitewashed room with six telephones, New Jersey’s resident marijuana activist sat behind a window. He sat at the fourth phone, his face framed by a thick border of blue paint around the polycarbonate glass, chipped in some areas. His dreadlocks were tied back and his calm gray-colored eyes were underlined by dark bags. He was tired.
Edward Forchion, known ubiquitously as “NJ Weedman,” has been locked up at the Mercer County Correctional Center for more than a year with no conviction. His incarceration is the result of the state’s new bail reform act, which allows for the detainment of a defendant with no option of bail and extra time to be added to a trial date through the use of excludable time.
His lock-up in the New Jersey jail has an ironic timing. With the election of Governor Phil Murphy, who campaigned on legalizing marijuana, the state is closer than it has ever been to seeing the drug become regulated. But at a time when activists are rejoicing in the plant’s acceptance in the Garden State, New Jersey’s most ardent pot advocate is behind bars.
The man who spent most of his adult life advocating marijuana reform is now fighting bail reform.
In January 2017, New Jersey enacted the Criminal Justice Reform Act, referred to as the bail reform act, after the measure was successfully passed as a ballot question three years earlier. The law made the state’s bail system dependent on risk as opposed to money.
Since its passage, the courts use a computer-based pretrial risk assessment tool, created by the Laura and John Arnold Foundation, that considers a defendant’s criminal history to determine the risk of three components: failures to appear in court, new criminal activity, and new violent criminal activity.
There are also new standards to ensure access to a speedy trial. Defendants must have their first court appearance within 48 hours of an arrest, prosecutors have 90 days to indict a defendant, and, if indicted, a trial must be scheduled within 180 days.
The idea behind the reform was to help low-risk, nonviolent defendants who were jailed simply because they could not afford to post bail. In many instances, the concept has worked.
The New Jersey chapter of the American Civil Liberties Union (ACLU-NJ), which played an important role in creating the bail reform act, said that within nine months of the law being enacted, the state’s pretrial jail population decreased by 15 percent.
Changing the bail system created some obvious opposition. In September 2017, an insurance company with ties to the bail bond industry unsuccessfully petitioned a federal court for an injunction to stop the bail reform act.
Alexander Shalom is a staff attorney with the ACLU-NJ who was a member of New Jersey’s Joint Committee on Criminal Justice, the taskforce created to address the state’s bail system. He applauded the federal judge’s ruling: “No system of pretrial release and detention, including this one, is perfect, but the last thing we need is to heed the bail industry’s desperate call to increase reliance on money bail.”
Despite the risk assessment algorithm, the decision to release a defendant on bail ultimately comes down to the judge. Even if the risk assessment algorithm recommends the release of a defendant, a judge can go against the recommendation and instead rule for pretrial detainment.
Previously in New Jersey, bail was typically only denied for those charged with capital offenses. Under the bail reform act, even for crimes considered nonviolent, a judge may still institute a cash bail when no other release conditions could ensure public safety or the defendant’s appearance in court.
This creates a dynamic where two defendants charged with the same crime, depending on past criminal convictions and other factors, can have two very different decisions when it comes to pretrial detainment. One defendant can be ordered released pending trial while the other is ordered to be held.
In the most extreme cases, a judge can order a defendant to be held without bail pending trial, usually if prosecutors argue that the defendant is a danger to the community.
Forchion, who is facing a third-degree witness tampering charge and has never been convicted of a violent crime, is considered by the court to be one of those cases. His charge stems from posting the identity of a police informant online.
The pretrial risk assessment algorithm recommended Forchion’s release with the condition of weekly reporting to the court. Prosecutors, however, argued Forchion would pose a danger to the community and may obstruct the criminal justice process if he were released. They argued, despite the risk assessment’s recommendation, Forchion should be held in jail without bail awaiting his trial. The judge agreed. That was March 7, 2017.
“For 230 years, we’ve had the right to bail in this country,” Forchion said in one of many phone interviews from jail. “Now, New Jersey passed this bail reform act and now things like this can happen.”
Before Forchion ended up in jail, he owned and operated a restaurant and a “cannabis temple” in New Jersey’s capital city, Trenton.
Like many other cities that relied heavily on manufacturing in the 19th and 20th centuries, Trenton saw an economic downturn before the turn of the millennia, financially depressing the city whose slogan is still “Trenton Makes and the World Takes.” The once-thriving city is now littered with boarded-up windows and dilapidated street corners.
During the day, Trenton’s streets are teeming with State House employees, lobbyists and professionals wearing dark suits, but at night, the same streets are home to the homeless, discarded brown paper bags holding empty cans and used syringes.
In a city where news coverage has been dominated by crime and violence, Forchion’s restaurant and sanctuary stood out as a positive addition to the community, and it was less than a mile away from the New Jersey Statehouse.
The Wall Street Journal profiled the restaurant in 2015 and noted that Forchion’s business received an honorary proclamation from the New Jersey Legislature commending the establishment and welcoming it to Trenton’s business community.
The restaurant, NJ Weedman’s Joint, served health-conscious dishes with a soul food twist, and although the food did not contain marijuana, the names of the menu items did. A meatball sandwich was dubbed the “Meatball Joint” and a vegetarian wrap the “Reggie Special.” The eatery garnered a loyal following, and before its untimely closure, boasted 4.8 stars out of 5 on Google reviews.
Attached to the restaurant but operating as a separate entity was Forchion’s cannabis church, the Liberty Bell Temple, which he referred to as a sanctuary and allowed people to come and take part in its sacrament: marijuana.
The temple, Forchion said, was a place for the people of Trenton to gather and express themselves through music, dance, and art. Some people have referred to the temple as Rastafarian-like, but Forchion, who has identified as a Rastafarian in the past, has never given it a specific label because he wanted it to be inclusive of all backgrounds and beliefs.
“I call it a cannabis temple or a spiritual temple,” Forchion explained. The restaurant and cannabis temple, situated side-by-side, were located directly across from Trenton City Hall. “I was making a statement when I moved there,” Forchion said.
Forchion, who is 53, opened the restaurant and temple in June 2015 with his business partner and girlfriend, Debi Madaio. Shortly after its opening, he retrofitted the buildings with 28 cameras and began filming a reality television show.
According to an article in The Trentonian, Forchion, Madaio and two silent partners created a media company called NJ Joint Ventures with the hopes of producing a television show to pitch to various networks. Their goal was to showcase marijuana activism and the lives of medical marijuana patients.
Before long, though, Trenton police officers began coming to the restaurant and temple claiming that Forchion was unlawfully operating a business past the permitted hours of operation in a residential zone.
“Everything was going fine for about six months,” Forchion said. “Then the police started harassing me for being opened late at night—for being opened past 11 o’clock.”
By the end of December 2015, police were a regular occurrence at NJ Weedman’s Joint and Liberty Bell Temple. Forchion wrote a letter in February 2016 to the mayor of Trenton and the city police informing them that his establishment was in a business zone, not a residential zone. “It was bad for business,” he said. “I had cops who kept showing up at my door.”
Towards the end of February 2016, police came to the restaurant with canines, and according to Forchion, told everyone they had to leave because it was past 11 p.m.
In the beginning of March, Forchion said he was approached by a police officer and again instructed to close his restaurant at 11 p.m. When Forchion didn’t comply, more than a dozen police officers showed up at his establishment a few days later demanding his patrons leave.
The incident, which took place on March 5, 2016, was captured on video and uploaded to the restaurant’s YouTube channel five days later. In the video, there are more than a dozen police officers crowded around the restaurant’s front door. Police lights turn the nighttime streets blue and red.
“I didn’t want it to turn into a massive arrest, so I wound up telling everyone to leave,” Forchion said. “And that was the first time I’ve capitulated, telling everyone to leave, and I’ve never capitulated about nothing, but I knew I was right and that I could be open past 11.”
On March 8, 2016, Forchion filed a civil lawsuit in federal court against Trenton and its police department, claiming his religious rights were violated when the police shut his business down after 11 p.m.
He claimed that since he viewed marijuana as a sacrament, the police were in the wrong for forcing him to close his business, which is attached to his cannabis temple.
For the next six months from March 2016 to September 2016, Forchion received 22 municipal violations from Trenton police for business-related infractions — more than half of the tickets alleging he was opened too late. All of the tickets for violating the hours of operation have all since been dismissed.
“OK fine, I’m a pain in the butt,” Forchion said. “I’ve made myself an activist, a protester, whatever you want to say, but at what point are the police allowed [to] act like a gang?” The police presence began to scare his customers away. “It was a constant. Every couple of weeks they would do it.”
Eventually, in April 2016, Forchion’s restaurant and temple were raided by Trenton police armed with assault rifles and tactical gear. He was one of 10 people arrested from the bust and is facing 11 marijuana-related charges. Since the arrest occurred before the bail reform act was enacted in 2017, he was assigned bail, which he posted, and was released.
“I was not selling weed,” Forchion said, “but okay, I have weed. Who doesn’t know that NJ Weedman has weed?”
According to the affidavit for the search warrant before the raid on NJ Weedman’s Joint, the police “initiated a narcotics investigation” on March 10 — two days after Forchion filed a federal civil rights lawsuit against the city and its police department. “Their investigation was retaliation,” he said. “That’s all it was; retaliation for filing a lawsuit.”
It’s been two years since his arrest and he has not yet been given a trial date for his marijuana-related charges. Forchion’s third-degree witness tampering charge that he is currently in jail for stemmed from the drug bust.
The affidavit showed police used a confidential informant to build a case against Forchion, and Forchion, mostly through social media, revealed the identity of the informant. He claimed it was within his constitutional right to gather information for his legal defense, and said anything he posted online is protected by the First Amendment. A conviction of third-degree witness tampering carries a penalty of three to five years in prison.
Originally, Forchion was charged with second-degree witness tampering in addition to the third-degree charge, but in November 2017, a jury found him not guilty of the second-degree charge. One juror, however, remained undecided on the third-degree charge. Prosecutors decided to retry him on the third-degree charge, and he has been in the Mercer County Correctional Center since.
After finding out that a confidential informant was used, Forchion immediately had an idea of who the police had sent in. A man that Forchion had never met began to visit his restaurant and temple on a regular basis.
“He kept coming in and asking me for weed,” Forchion said, adding that it was not completely unusual for a random person to try to befriend him. “I’ve had this happen where people want to smoke with me, they want to hang out with me, strangers come and visit me,” he said. “Anywhere I go, potheads know me all over the place.”
Each time Forchion declined to sell him marijuana, the informant would persist, Forchion said. That’s when he remembers the situation became a little “weird.”
“In fact, I was joking with my staff and I was calling him Barney Rubble because he kind of looked like him,” Forchion recalled. “He was following me around like a puppy dog like Barney Rubble does to Fred Flintstone.”
On one occasion, Forchion said he gave the informant some marijuana from his personal stash, and “he left with some.” It was after the informant dropped $300 into a donation jar that he left at his temple, Forchion said.
“We didn’t think he was undercover or anything like that,” he said. “We just thought he was a weirdo.” It was less than an ounce, according to Forchion. This led to his arrest in the drug bust on April 27, 2016.
It wouldn’t be for another year, however, that Forchion was charged with witness tampering.
“In April 2016, a month after I filed the lawsuit against the police for harassing me, they raided me based on the rat,” he said. “And then a year goes by and in March 2017, I’m arrested for witness tampering.”
He has been in jail since that time.
Forchion has largely represented himself during much of his history in court. However, for his drug case, he had the help of an attorney. His goal was to get the government’s informant to testify in court in his drug-related case, and he believed he could accomplish this by revealing the identity of the “rat,” which is Forchion’s choice noun for a confidential informant.
“I started doing research—which is perfectly within my Sixth Amendment right to prepare a defense—to figure out who it was,” Forchion said. “I figured out who it was, and I started blasting all of Facebook saying that there was a rat.”
This plan backfired and Forchion found himself charged with the two counts of witness tampering.
The idea of ousting the confidential informant was inspired by a Supreme Court of New Jersey case from 1976, titled State v. Milligan. The case considers the limits of the government’s privilege to protect the identity of police informants.
In November of 1972, an undercover New Jersey State Trooper named Harry Roberson was involved in a Camden County narcotics investigation. Roberson was introduced to the suspected heroin dealer, Preston Milligan, through an informant, according to court documents.
The informer, whose identity the state wished to conceal, introduced a narcotics agent to Milligan and accompanied the agent to the place where the sale was transacted.
Although the informant was present during the meeting, he did not negotiate the sale and was in the bathroom when the transaction took place.
When Milligan was arrested for selling heroin and the case went to trial, he requested through the lower court that the name of the informant be disclosed. Roberson testified during a hearing on the matter and the trial judge subsequently denied Milligan’s motion. He said the informant was his only material witness.
The case went to the Supreme Court, which is when the dilemma of setting a precedent of revealing the identities of informants was mulled over.
“The dilemma is that ordinarily a defendant cannot know unless the informer is made available, while to require him to be made available will end the prosecution and deny society the services of informers,” the court wrote. “At the moment a choice seems unavoidable between a disclosure of the witness-informer in all cases or in none at all. A policy-decision must be made and it must rest upon probabilities. In those terms the risk of loss to defendants is pure conjecture, while the loss to society in its efforts to cope with crime would be real and substantial.”
The balance was struck “in favor of law and order.” The Supreme Court reversed the appellate court’s judgment vacating Milligan’s convictions and agreed with the trial court, which found him guilty of the crime.
The affidavit for the search warrant of NJ Weedman’s Joint alleged that the informant had directly bought marijuana from Forchion. With the 1976 case in mind, Forchion began working to reveal the identity of the police’s informant, but instead of doing so through the courts, he took to the internet.
On his website, Forchion made many postings publishing the informant’s name. He posted photos of the informant, a home address, a phone number, his wife’s name and the number of children he had. Forchion argued that if an informant could make allegations against him, he should be able to use the power of subpoena to get the informant to testify in his drug case.
In August 2016, prosecutors filed a motion for a protective order of the identity of the confidential informant. The motion to keep the informant’s identity private wasn’t approved until February 2017, according to an article on NJ.com. By this time, Forchion had already posted the identity online of who he believed was the informant. He was then charged with witness tampering and was arrested after a SWAT team entered his girlfriend’s home in March 2017.
The court found that Forchion should be detained before his trial on his witness tampering charge because “no amount of monetary bail, non-monetary conditions, or combination of monetary bail and conditions would reasonably assure” the protection of the community.
It was also determined, according to court documents, that if he were released, there would be no assurance the “defendant will not obstruct or attempt to obstruct the criminal justice process.”
Prosecutors did not comment for this story, but did provide copies of court orders regarding pretrial detention motions.
Although Forchion represents himself for the lion’s share of his legal troubles, he now has a standby counsel for his witness tampering case.
Christopher Campbell, Forchion’s standby, said that he believes the state’s case for the third-degree witness tampering charge is not strong since the second-degree charge was already dismissed.
“I really can’t speak for them as to whether they’re trying to punish him or not,” Campbell said of the prosecutor’s office. “But he does make himself a very vocal advocate against the system. Whether that means he’s a target for that reason, who knows.”
Forchion’s attorney also questioned the use of excludable time, which is an aspect of the bail reform law that can delay a defendant’s trial date for a number of reasons.
The bail reform can complicate pretrial hearings, as Forchion’s standby counsel pointed out. “I have seen some surprising things happen with bail reform since its inception. Ed just wants to go to trial, but anytime he tries to do anything he gets excludable time,” Campbell concluded.
One of the biggest arguments Forchion has against the bail reform act is the tenet of “excludable time.” It is what has caused him to remain in jail for more than a year pending his trial.
Under the bail reform act, there is a wide variety of reasons a defendant may receive excludable time against his trial clock. The bail reform act makes clear that prosecutors must bring a defendant to trial within 180 days of indictment and within 120 days for a retrial. Certain events, however, can augment these deadlines and pause the trial clock.
There are 13 instances when excludable time can be applied, according to a bail reform fact sheet on the New Jersey’s judiciary website. Perhaps the most encompassing of all is the time it takes a judge to decide pretrial motions. For any motion a defendant or prosecutor submits before trial, a judge has up to 60 days to respond. The time it takes for a response is considered excludable time.
“For filing a motion asking for something, you get punished. To appeal something, you get punished. It’s all a part of the law,” Forchion said. “This is the dungeon system.”
On November 17, 2017, shortly after Forchion’s second-degree witness tampering charge was dismissed, he filed a motion for his release. Prosecutors filed a response on December 11.
On January 12, 2018, the judge denied Forchion’s release and ordered 57 days of excludable time to count against his trial clock.
On March 1, prosecutors asked for more than 20 days of excludable time because Forchion appealed a judge’s January 12 order denying his release. Forchion appealed this decision to the appellate court on January 20 and also filed an appeal to the Supreme Court on February 26, but the petition was denied.
Forchion was also given 67 days of excludable before he went on trial in November 2017, where he beat the second-degree witness tampering charge.
“It’s like I wasn’t here, like it didn’t count, like it doesn’t count, but I’m locked in a cage,” he said. “It counts to me. Every minute of the day counts for me.”
Under the bail reform act, defendants can be held without bail for months on end. And sometimes those individuals have had their cases acquitted.
In December 2017, the Asbury Park Press reported two men were detained without bail and were eventually acquitted of their charges. Both men were accused of binding, raping, and robbing a prostitute at a hotel a year earlier. One of the men, who had claimed he was never at the crime scene, was in jail for almost 11 months before his acquittal, the report said.
In other instances, the bail reform rules can permit the release someone that draws the ire of the public. For example, in March, a school bus driver, who is currently accused of molesting at least nine children over the course of his 40-year career, was released, His story was shared on anti-bail reform websites across the country.
John Vincent Saykanic, the attorney who has been assisting Forchion with his appeals for more than a decade, said that he “has been trying to get him out for a year from pretrial detention.”
He said the bail reform act does away with a “defendant’s rights to appeal because by appealing you’re adding more time to your pretrial detention.” Saykanic made it clear that Forchion “wants to go to trial ASAP. As soon as possible.”
Saykanic referred to Forchion’s pretrial detention as “punishment” and said that his case is an example of how this the bail reform legislation can be a “nightmare.”
“This is an example of a huge flaw in the purpose of the bail reform, which is supposed to help people who don’t have money to post bail, but here it’s punishing an individual,” he said. “He’s been there over a year now.”
He called Forchion’s situation “a grave injustice.”
Mario Williams, an Atlanta, Georgia attorney specializing in civil rights issues, police misconduct and business litigation, is representing Forchion in his federal lawsuit against Trenton and its police department.
“This is like the true definition of political prisoner,” Williams said of Forchion. “He just rubbed law enforcement the wrong day and they essentially said we’re going to shut you down, and that’s what they did.” He said Forchion was penalized for exercising his rights.
“They penalized him more so because he’s very active when exercising his First Amendment rights and freedom of speech against law enforcement officers,” Williams said.
As for the bail reform, Williams said that it “needs to be scrapped.”
Williams is also representing a woman named June Rodgers, who is suing New Jersey and former Governor Chris Christie in an attack on the reformed bail system. Her son, Christian, was killed after a man shot him dead in the streets. The man who allegedly murdered him, Jules Black, was released under the new system just days before her son Christian was killed.
“Between that case and Forchion’s, you can see some serious flaws in the system,” Williams said. He questioned the risk algorithm designed by the Laura and John Arnold Foundation and its effectiveness.
Williams isn’t the only one to have raised concerns over algorithms used to predict risk in defendants.
Aaron Clauset, a prominent computer scientist, made remarks in response to a study on machine learning applied in the realm of criminal justice. In 2016, Clauset was awarded the Erdős-Rényi Prize, given by the Network Science Society for achievements and outstanding contributions network science. The study Clauset responded to was published in Science Advances in January 2018.
“In the United States, algorithms are commonly used to predict the likelihood that a criminal will commit a crime, and these predictions influence pretrial, parole, and sentencing decisions,” he wrote. “Commercial software, such as the widely used COMPAS’s impressive-sounding 137-feature black box is nearly equivalent to a trivial linear classifier using two features, and both approaches are no more accurate or fair than [predictions] made by people with little or no criminal justice expertise.”
Williams said that he is hoping New Jersey’s bail reform is fixed before other states look to it as a model and adopt similar measures.
‘John Walsh of Bail Reform’
On April 16, 2018, Forchion had his first court appearance since beating the second-degree witness tampering charge in November. He entered the brightly lit courtroom wearing an orange jumpsuit with the words “Political Prisoner #420” scrawled on the back. His dreadlocks were pushed back. He still had bags under his eyes. He was still tired.
He asked the judge if his marijuana charges and cyber harassment charge, which he was indicted on after calling a prosecutor a “pedophile,” could be included in the trial for his witness tampering. The request was denied. Instead, Forchion was given another 22 days of excludable time for his appeal, with an estimated trial date of May 8. It’s what he’s been waiting to hear for the past year.
“I think I’m going to win,” he said. “I think I’m unconvictable.”
While held before trial, Forchion managed to accomplish a lot. He spent most of his time in the jail’s law library working on a book, which already has over 1,000 pages, he said. It wouldn’t be his first; he already has published two other books.
In addition, he has also announced his candidacy for the New Jersey state Assembly Legislative District 15. He’s no stranger to the political arena. He has ran for governor of New Jersey and for Congress. In fact, when he ran for Congressional District 12, Forchion, who campaigned on the self-created Legalize Marijuana Party, received the third most votes at 6,094, which was more than what the Green Party and Libertarian candidates combined.
For the Assembly, however, Forchion is running on a new platform: the Repeal Bail Reform party.
Forchion has called for reforming the state’s bail reform legislation, but not a complete reversal back to the original cash-for-bail system. He proposes a system that doesn’t deny bail to a defendant unless it is someone accused of a serious crime, such as murder.
New Jersey’s bail reform act has already been slightly tweaked as well. On May 1, 2018, the Supreme Court of New Jersey ruled unanimously that in most instances a judge cannot order defendants be detained pretrial solely based on the crime they are accused of committing.
“A recommendation against a defendant’s pretrial release that is based only on the type of offense charged cannot justify detention by itself,” Chief Justice Stuart Rabner wrote in the decision. Charges such as murder, sex trafficking and other crimes that carry a sentence of life imprisonment can be the exception to this.
Third-degree witness tampering, the charge Forchion is facing, is not a crime that carries a sentence of life in prison. When the Supreme Court’s ruling came out, Forchion had been in pretrial detention for 421 days without bail.
Forchion said he doesn’t believe bail system should entirely be based on money, recognizing that many people can be unfairly affected by this, but said there should be a “happy medium” between the two.
“I’ve been calling myself NJ Weedman and advocating for marijuana legalization for years,” he said, “but when this is all said and done, I’m going to be the biggest advocate against bail reform there is. I will become the John Walsh of bail reform repeal.”
After spending 447 days in jail awaiting his trial, Forchion was acquitted of his third-degree witness tampering charge after he was found not guilty of the crime by a jury on May 24. Now out of jail, he said he plans on amending his federal lawsuit to include grievances about his pretrial imprisonment.
In addition to running for office, Forchion also plans on finishing the book that he’s been working on. He said it is nearing completion. He feels compelled to tell his story of how he was affected by the bail reform. He’s hoping he can get a deal for the book, but if it not, it won’t bother him much. He’s writing it for a more crucial reason.
“I don’t even know if people will buy the book,” he said. “I’m writing this for history’s sake.”