New 2017 Expungement Law
By Kenneth Vercammen
The Senate Judiciary
Committee reports favorably and with committee amendments Senate Law No. 3307.
This law, as amended,
would revise procedures for expunging criminal and other records and
information, including the shortening of certain waiting periods before a
person may seek an expungement and increasing the number of convictions, which
may be expunged.
Concerning the
expungement of one or more criminal convictions, the law sets forth the
following categories of eligible persons:
- a
person who has been convicted of one crime, and does not otherwise have any
prior or subsequent conviction for another crime;
- a person who has been convicted
of one crime and less than four disorderly persons or petty disorderly persons
offenses, and does not otherwise have any prior or subsequent conviction for
another crime or for another disorderly persons or petty disorderly persons
offense such that the total number of convictions for offenses exceeds three;
- a person who has been convicted
of multiple crimes, or a combination of multiple crimes and disorderly persons
or petty disorderly persons offenses, all of which are listed in a single
judgment of conviction, and the person does not otherwise have any prior or
subsequent conviction for another crime or offense in addition to those
convictions included in the person’s expungement application; or
- a person who has been convicted of
multiple crimes or a combination of multiple crimes and disorderly persons or
petty disorderly persons offenses, which crimes or combination of crimes and
offenses were interdependent or closely related in circumstances and were
committed as part of a sequence of events that took place within a
comparatively short period of time (a so-called “crime spree”), regardless of
the date of conviction or sentencing for each individual crime or offense, and
the person does not otherwise have any prior or subsequent conviction for
another crime or offense in addition to those convictions included in the
person’s expungement application.
If a person with one
or more criminal convictions is eligible as described above for expungement
relief, the expungement application may generally proceed so long as one of the
following time period requirements is met:
- six
years have passed with respect to all aspects of satisfying the most recent
conviction (six years from the date of conviction, payment of fine,
satisfactory completion of probation or parole, and release from
incarceration);
- the payment of a fine, which is
currently subject to collection under the State’s comprehensive enforcement
program established pursuant to P.L.1995, c.9 (C.2B:19-1 et seq.), is not yet
satisfied due to reasons other than willful misconduct, but the six-year time
requirement is otherwise met.
- the fine is satisfied, but six
years have not passed since doing so, and the six-year time requirement is
otherwise met; or
- at least five but less than six years
have passed with respect to all aspects of satisfying the conviction (this
expedited expungement would also require, as it does under current law, the
person to show that it is in the public interest to permit such expungement).
As
expressed in the law, the term “fine,” in reference to measuring any applicable
time period requirement for determining the satisfaction thereof, means and
includes any fine, restitution, and other court-ordered financial assessment
imposed by the court as part of the sentence for the conviction, for which
payment of restitution takes precedence in accordance with applicable
law.
Whenever the court granted
expungement relief to a person with an outstanding fine, the court would,
utilizing the comprehensive enforcement program, provide for the continued
collection of any amount owed that is necessary to satisfy the fine or for the
entry of civil judgment for the outstanding amount. Once the person’s records and information was
expunged, information regarding the nature of such financial assessments or
their derivation from expunged criminal convictions would not be disclosed to
the public. Any record of a civil judgment would be entered in
the name of the State Treasurer, and administered by the State Treasurer in
cooperation with the comprehensive enforcement program without disclosure of any information related to
the underlying criminal nature of the assessments.
The
court, after providing appropriate due process, could nullify an expungement
granted to a person with an outstanding fine if the person willfully fails to
comply with an established payment plan or otherwise cooperate with the
comprehensive enforcement program to facilitate the collection of any amounts
that remain due. In the event of nullification, the court could restore
the previous expungement granted after the person complies with the payment
plan or otherwise cooperates with the comprehensive enforcement program to
facilitate the collection of any outstanding amounts owed.
With respect to
criminal convictions for the sale, distribution, or possession with intent to
sell marijuana or hashish, the law amends the expungement law to establish
general expungement eligibility for a low-level offender consistent with how
such an offender’s crime is graded under the State’s Criminal Code. This
consistency would also apply to a young low-level offender (21 years of age or
less at the time of the offense) who is granted special eligibility to make an
expungement application after one year from the date of the conviction,
termination of probation or parole, or discharge from custody, whichever date
is later in time. Eligibility would be extended to all such convicted offenders
when the crime is graded as a crime of the fourth degree, based on the amount
of the drug being:
- less than one ounce
of marijuana (the current law provides eligibility for a smaller amount, 25
grams (0.89 ounce) or less); or
- less than five
grams (less than 0.17 ounce) of hashish (the current law provides eligibility
for a slightly higher amount of five grams (0.17 ounce) or less).
The new amounts set
forth in the law are derived from the amounts used to grade the crime as a crime
of the fourth degree under the State’s Criminal Code. See N.J.S.2C:35-5,
subsection b., paragraph (12). As such, this would create a legal
consistency between expungement law eligibility and grading under the Criminal
Code, such that any fourth degree crime involving the sale, distribution, or
possession with intent to sell marijuana or hashish would be generally eligible
for expungement, and in the case of a young offender, the special eligibility
for expungement after a one-year time period would consistently apply.
This is not currently the case, because the amounts set forth in the
expungement law are different than the amounts used to grade the crime.
Concerning
a person with one or more convictions for disorderly persons or petty
disorderly persons offenses (but no criminal convictions), the law sets forth
eligibility as follows:
- a
person who has been convicted on the same or separate occasions of no more than
four disorderly persons offenses, no more than four petty disorderly persons
offenses, or a combination of no more than four disorderly persons and petty
disorderly persons offenses, and the person does not otherwise have any prior
or subsequent conviction for a disorderly persons or petty disorderly persons
offense such that the total number of convictions for such offenses exceeds
four;
- a person who has been convicted
of multiple disorderly persons offenses or multiple petty disorderly persons
offenses, or a combination of multiple disorderly persons and petty disorderly
persons offenses, which convictions were entered the same day, and the person
does not otherwise have any prior or subsequent conviction for another offense
in addition to those convictions included in the person’s expungement
application; or
- a person who has been convicted
of multiple disorderly persons offenses or multiple petty disorderly persons
offenses, or a combination of multiple disorderly persons and petty disorderly
persons offenses, all of which were part of a “crime spree” (described in the
same manner as above with respect to a spree which resulted in multiple
criminal convictions).
If a person with one or more
convictions for disorderly persons or petty disorderly persons offenses is
eligible as described above for expungement relief, the expungement application
may proceed so long as one of the following time period requirements is met:
- five years have passed with
respect to all aspects of satisfying the conviction;
- the fine is satisfied, but five
years have not passed since doing so, and the five-year time requirement is
otherwise met; or
- at least three but less than five
years have passed with respect to all aspects of satisfying the conviction
(this expedited expungement would also require, as it does under current law,
the person to show that it is in the public interest to permit such
expungement, similar to the expedited “public interest” expungement process for
criminal convictions).
As
is the case with an expungement involving one or more criminal convictions, the
amendments provide that the term “fine,” in reference to measuring any
applicable time period requirement for determining the satisfaction thereof,
means and includes any fine, restitution, and other court-ordered financial assessment
imposed by the court as part of the sentence for the conviction, for which
payment of restitution takes precedence in accordance with applicable law.
The law provides a one-time limit on a
person receiving an expungement involving any criminal conviction (continuing
the current law’s one-time limit), as well as a one-time limit for receiving an
expungement of multiple convictions pertaining to multiple disorderly persons
or petty disorderly persons offenses, which convictions were entered the same
day or which convictions constituted a “crime spree.”
Finally, the law
would remove a bar on expungement eligibility for any person with one or more
convictions for crimes, disorderly persons offenses, or petty disorderly
persons offenses, who, prior or subsequent to the conviction or convictions for
which expungement is sought had criminal charges dismissed following the
completion of a supervisory treatment or other diversion program. The
dismissal of criminal charges in such manner would no longer be an automatic
bar to the person seeking and obtaining the relief of expungement.
However, even if the person is successful in expunging any convictions, the
expunged records would remain available for subsequent review for purposes of
determining whether to grant or deny the person another entry into a
supervisory treatment or diversion program for new charges. See N.J.S.2C:52-20
and 2C:52-27, subsection b.
The committee amendments to the law:
- update the categories of persons
with one or more criminal convictions who would be eligible for expungement
relief, as described above;
- update the categories of persons
with one or more convictions for disorderly persons offenses or petty
disorderly persons offenses (and no criminal convictions) that would be
eligible for expungement relief, as described above;
- update the time period
requirements that need to be met in order for a person to proceed with an
application to expunge one or more convictions for a crime of offense, as
described above;
- provide that the term “fine,” in
reference to measuring any applicable time period requirements for determining
the satisfaction thereof for proceeding with an expungement application, means
and includes any fine, restitution, and other court-ordered financial
assessment imposed by the court as part of the sentence for the conviction, for
which payment of restitution takes precedence in accordance with applicable
law;
- add provisions which would permit
the court to nullify an expungement granted to a person with an outstanding
fine if the person willfully fails to comply with an established payment plan
or otherwise cooperate with the comprehensive enforcement program to facilitate
the amounts that remain due, and only restore the expungement once the person
complies with the payment plan or otherwise cooperates with the comprehensive
enforcement program;
- revise the provisions in the underlying
law to maintain the one-time limit on a person receiving an expungement for
multiple convictions pertaining to multiple disorderly persons or petty
disorderly persons offenses, which convictions were entered the same day or
which convictions constituted a “crime spree” – the revision is an update to
the descriptions of the various categories of persons who are eligible for
expungement relief, making these descriptions consistent throughout the law;
- remove a provision which would
have permitted the sharing of expunged records with the Administrative Office
of the Courts (AOC) concerning any on-going obligations to pay restitution -
this provision is unnecessary, as the AOC is not directly involved in the
collection or enforcement of any such obligations; and
- provide for a delayed effective
date, updated to be the first day of the tenth month next following enactment
(instead of the third month), in order to provide additional time for the AOC
to take necessary administrative action in advance of the law becoming law so
that it can more effectively implement the reforms presented in the law.
The Governor’s office said:
Three new expungement reform bills developed by Governor
Christie and Senator Sandra Cunningham (D-Hudson) as part of their continuing
bipartisan endeavor would prohibit employment discrimination based upon an
expunged criminal record; accelerate expungements and increase the number of
convictions that can be expunged; and reduce the waiting period to expunge an
entire juvenile record.
“I commend Senator Cunningham for working with me on this legislation
that will return many more recovering addicts to their families, as productive
members of society and help break the costly cycle of recidivism,” Governor
Christie said. “It prevents a childhood or adolescent mistake from ruining
someone’s future, while still ensuring there are appropriate consequences for
unlawful behavior and lessons are learned. These reforms represent a second
chance at life for our family members, friends, neighbors and coworkers, and
they provide the same opportunities we would desperately want for ourselves.”
“A minor criminal offense should not lead to a lifetime of
punishment. These bills are about removing barriers for residents and helping
them to overcome the obstacles that exist to finding employment, taking care of
their families and setting their lives on the right path,” said Senator
Cunningham. “I want to thank the Governor for being a partner in this important
work. These bills are a great step to providing offenders with the second
chance they deserve.”
Senate bill 3306 would strengthen New Jersey’s Opportunity to
Compete Act, also known as “Ban the Box,” sponsored by Senator Cunningham and
signed into law by Governor Christie in August 2014. S-3306 would prevent those
with current and expunged criminal records from being discriminated against at
the early stages of employment pursuits.
Senate bill 3307 would reform procedures for expunging criminal
records by:
· Allowing a petitioner to expunge up to four, instead of
three, offenses or multiple offenses that occurred within a short timeframe, if
the petitioner has not been convicted of any prior or subsequent offense;
· Reducing the expungement eligibility waiting period from
10 years to six years, following the latest of any conviction, payment of fine
and completion of probation, parole or prison sentence;
· Further reducing the expungement eligibility waiting
period if satisfaction of a fine or restitution is the petitioner’s only
remaining barrier and the court finds that the expungement is in the public’s
interest; and
· Aligning expungement and sentencing statutes, allowing
expungement for possession of marijuana with the intent to sell up to one
ounce, which is the threshold for a fourth-degree crime.
Senate bill
3308 would decrease from five to three years the waiting period to expunge an
entire juvenile record, maintaining all other requirements and provisions.
“These
necessary, life-saving reforms for people who deserve a second chance should be
immediately passed by the New Jersey legislature and replicated across the
country, as I have heard loud and clear from the victims of this disease and
their families, grassroots leaders, medical professionals, law enforcement
officers and those in the criminal justice system, during my travels around
this great state and nation,” Governor Christie said.
