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On December 18, 2019, Governor Murphy signed into law a much-anticipated expungement reform bill (A5981/ S4154) that will bring sweeping changes to expungement eligibility and the expungement process.
Clean Slate Eligibility, E-filing and Automated Expungement
As to eligibility, a provision referred to as “clean slate,” or the “Cunningham Cleanser,” will enable many more individuals to expunge their criminal records. It will allow individuals to clear an entire record of arrests and convictions 10 years after their most recent conviction, payment of fine, satisfactory completion of probation, or parole or release from incarceration, whichever comes later. The clean slate provision recognizes that remaining offense-free for a number of years is a strong indicator of rehabilitation. As with traditional expungement, however, individuals with convictions for serious crimes (such as murder, robbery, and aggravated sexual assault) will not be eligible for this relief.
As to process, the courts are preparing, and will soon unveil, a new electronic filing procedure to assist those filing for expungement. Upon implementation, “e-filing” will provide for electronic document management and service of process. Thereafter, expungements will require the court to run the petitioner’s criminal background information and serve the necessary parties 30 days after filing. The state police, attorney general, or county prosecutor is required to object to a petition within 30 days to contest any inaccuracies or to make a statutory objection. More information on this process will be provided as soon as possible.
Also, the new law authorizes a task force to explore the development of an automated expungement system. Earlier this year, LSNJ advocated for automated expungement, citing the injustice imbedded in the expungement process and calling for a system where individuals need not go through the traditional multi-step petition process in order to achieve relief. See It should be easier to expunge minor crimes and give people a second chance, attorney says (from NJ.com). After the automated expungement system is in place, clean slate expungements will be handled by the courts, obviating the need to petition the court for such expungement.
Expedited Expungement of Marijuana Convictions, Regrading
Although legislation to legalize marijuana in New Jersey failed to pass, the expungement law contains provisions for expedited expungement and the sealing of certain marijuana offenses. Individuals with such convictions will be eligible for expungement immediately after payment of fine; completion of probation or parole; or release from incarceration, legal custody, or supervision. The following offenses are included:
- Distribution or possession or having under control with intent to distribute less than one ounce of marijuana or less than five grams of hashish in violation of N.J.S.A. 2C:35-5b(12) or such violation and a “school zone” or “public housing” violation under N.J.S.A. 2C:35-7a or N.J.S.A. 2C:35-7.1a (i.e., distributing, or possessing or having under control with intent to distribute, on or within 1,000 feet of any school property or within 500 feet of public housing facility, public park or public building); or
- Obtaining, possessing, using, being under the influence of, failing to make lawful disposition of, marijuana or hashish in violation of N.J.S.A. 2C:35-10a(3), N.J.S.A. 2C:35-10a(4) or N.J.S.A. 2C:35-10b or N.J.S.A. 2C:35-10c; or
- A violation involving marijuana or hashish as above, and using or possessing with intent to use drug paraphernalia in violation of N.J.S.A. 2C:36-2.
Those who had such convictions prior to the effective date of the bill may petition for expungement. For those who have such convictions on or after the effective date of the bill, the court will order an “order of nondisclosure” covering relevant court, probation and law enforcement records and having similar effect as expungement.
For convictions for distribution of marijuana (one ounce or more, but less than five pounds) or hashish (over five grams but less than one pound) in violation of N.J.S.A. 2C:35-5(11), an automatic order of nondisclosure will not be issued. However, those convictions will be expungeable after a three-year waiting period.
The new law also regrades the following marijuana-related criminal offenses as disorderly persons offenses for the purposes of expungement:
- Distribution or possession or having under control with intent to distribute one ounce to five pounds in violation of N.J.S.A. 2C:35-5(11); or up to one ounce in violation of N.J.S.A. 2C:35-5(12); or
- Violation of either and a “school zone” or “public housing” violation under N.J.S.A. 2C:35-7a or N.J.S.A. 2C:35-7.1; or
- Possession of more than 50 grams of marijuana or more than 5 grams of hashish in violation of N.J.S.A. 2C:35-10a(3).
Any conviction for possession, using, being under the influence, or failing to make lawful disposition of marijuana or hashish in violation of N.J.S.A. 2C:35-10 (simple possession); or use or possession with intent to use drug paraphernalia in violation of N.J.S.A. 2C:36-2 is “not a conviction” and presumed expungeable under N.J.S.A. 2C:52-6 (arrests not leading to conviction).
Traditional Eligibility Revised
A few important changes were also made to the traditional expungement eligibility and process. Under the new law, a previous or so-called “prior to” conviction will not bar the expungement of a conviction even if that previous conviction is not eligible to be expunged. For example, a petitioner may not expunge two separate criminal convictions that occurred years apart, but the petitioner may now seek the expungement of the latter, as the previous conviction will not preclude the expungement of the latter conviction. After expungement of the latter conviction, the previous conviction would remain. Also, in the same vein, a previous conviction shall not prevent the expungement of a crime spree.
The waiting period to expunge an indictable conviction (and up to three disorderly persons or petty disorderly persons convictions) is reduced from six years to five years.
Also, the new law provides for the expungement of up to five disorderly persons or petty disorderly persons offenses if the applicant does not have any indictable convictions. The outstanding fine provision now applies to disorderly persons convictions. That is, in most cases, an expungement may be granted if there is an outstanding fine but all other statutory requirements are met. But, in any instance of outstanding fines, the law will require the entry of a civil judgment for any fines and fees owing on any expungeable convictions unpaid at the time of granting the expungement.
For arrests not leading to conviction or “dismissed cases,” the provision requiring an applicant to request an application to expunge a case dismissed in municipal court has been eliminated and will be replaced by procedures set by the Administrative Office of the Courts. Many who were eligible for relief under N.J.S.A. 2C:52-6 previously were unaware they had to initiate their request at the time of dismissal and if they missed the opportunity would have had to file a petition. This amendment seemingly aims to remedy the occurrence of individuals not advised by the Municipal Court of their rights resulting in a missed opportunity to expunge without petitioning the court.
The new law also immediately eliminates the current $75 filing fee. Meanwhile, it authorizes a $15 million expenditure from the general fund to expand the workforce and support the Department of Law and Public Safety to help facilitate expungement reform.
Public Interest Applications
The “public interest” standard will be replaced by a “compelling circumstances” standard. Previously under the “public interest,” the court could grant an expungement application it deemed in the public interest, giving “due consideration to the nature of the offense and the applicant’s character and conduct since the conviction” N.J.S.A. 2C:52-2a(2). It is unclear how the courts might interpret “compelling circumstances” as a burden of proof required to be met by expungement applicants, but it might modify the strict documentation requirement for the nature of the offense analysis as set forth in In re Kollman (i.e., pre-sentence investigation reports, plea and sentencing transcripts from criminal cases). A compelling circumstances requirement is applied as well, for third- and fourth-degree sale, distribution and possession with the intent to sell controlled dangerous substances convictions. Additionally, the waiting period associated with early pathway public interest expungement is reduced from five to four years.
Other Changes
In addition to the reforms described above, the new law:
- Explicitly requires that an expungement should be filed in the jurisdiction where the “most recent” conviction for a crime was located. The explanatory language may be helpful where an applicant has several expungable criminal convictions, for example under crime spree eligibility.
- Simplifies the necessary statement to accompany the petition per N.J.S.A. 2C:52-8 to remove the wordy “crime spree” definition. It still requires disclosure of a past criminal conviction when an individual is seeking the expungement of a criminal conviction.
- Requires disclosure of any previous name changes in an expungement application.
- Shifts responsibility of collection of fines post-expungement to the Treasurer.
While some changes take effect immediately, such as the elimination of the expungement filing fee, others pertaining to eligibility will take effect 180 days after enactment on June 15, 2020.
Legislative Process and Effective Dates
The road to passage of the new expungement law was not without detour. In August of last year, Governor Phil Murphy conditionally vetoed a version of the expungement reform bill largely because it moved the law toward an automated expungement process. A new bill, integrating changes suggested by the governor, was reintroduced and approved by the legislature after a full vote. It was subsequently signed by the governor at a press conference in December.
LSNJ’s Prisoner Reentry Project provides representation, advocacy, and outreach to help low-income individuals returning from incarceration, or individuals with criminal records, overcome civil legal barriers.
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