New 2017 Expungement Law

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.