Expunging Marijuana Records the Way to Go — or a Big Headache for NJ Courts?

Carly Sitrin | March 28, 2018 | More Issues
Case being made that people should be able to clear their records, but concern that tens of thousands would flood the system

Supporters and opponents of marijuana legalization can agree on one point: minority communities have been discriminated against by laws that prohibit marijuana. The question is what should be done. State legislators and advocates of legalization say the solution is to expunge criminal records. But that would flood the system with thousands of petitioners and if the state is unprepared, could do more harm than good.

At Mt. Teman A.M.E. Church in Elizabeth, Sen. Ron Rice (D-Essex) and members of the Black Legislative Caucus gathered supporters and detractors of marijuana legalization as well as members of the community to speak about their concerns and desires for the future.

The four-hour hearing, as Rice called it, featured impassioned comments on both sides of the issue, but with an undercurrent from all speakers that the War on Drugs has negatively impacted New Jersey. Speakers from both sides argued if any marijuana reform legislation is to land on Gov. Murphy’s desk, it needs to address the outsized impact cannabis policies have had on black and brown communities.

“I think we can start with a premise that all of us can agree on, and that is the drug war in the United States of America has been a complete and utter failure,” Sen. Nicholas Scutari (D-Union) said. “It has failed our citizens, it has crowded our jails, and it’s cost us billions of dollars.”

According to the American Civil Liberties Union, New Jersey is making more arrests for marijuana possession than ever before and racial disparities in those arrests are at an all-time high. Black New Jerseyans are currently three times more likely to be arrested for marijuana possession than whites, despite similar cannabis use rates.

High cost of a criminal record

As Gov. Murphy continues to push for adult-use legalization by 2019, and cultural perceptions of cannabis shift, advocates for and against legal pot are placing a big emphasis on record expungement for those affected by marijuana laws.

The idea is to expunge criminal records for nonviolent and minor marijuana possession offenses.

Having a criminal record in New Jersey often makes many aspects of life much more difficult including getting hired or obtaining housing and college loans. Jaleel Terrell, an honors student at Kean University and member of the New Jersey Youth Justice Initiative, said at the hearing that having a possession record has made it difficult for him to get a job despite his many accolades.

Proponents of legalization argue the state cannot make a substance legal and leave thousands languishing in jail or stuck with a criminal conviction because they had the misfortune of being caught prior to Murphy signing a bill. Those against legalization — like Rice — are leaning instead toward decriminalization which would bring possession and use penalties down and amend the records of those currently serving time. Both sides say getting people out of jail and keeping cannabis-related arrests to a minimum would reduce police costs as well as state costs to house prisoners. They also emphasize the desire to keep families together in urban neighborhoods and remove as many obstacles to urban employment as possible as reasons for including criminal justice reform in any marijuana bills.

In other states that have legalized, expungements have not necessarily come easily or quickly, mostly because every other state (aside from Vermont) has legalized cannabis by ballot measure rather than legislation. Colorado voted to legalize in 2012, but the Legislature there only voted to allow those with previous marijuana misdemeanors to clear their records in 2017. Though California voted to legalize in 2016 and allowed those with convictions to petition a low-level court for expungements, it soon found the process to be prohibitively expensive and time-consuming and is only now establishing ways to efficiently expunge or downgrade some charges.

An onerous process

In New Jersey, getting a record expunged can take months — and sometimes a year or more. And, between lawyer fees and costs to obtain personal documents, the process can prove challenging for those without money to spare.

Without hiring a lawyer — which can tack on upwards of $1,000 — the process takes six months on average, and can cost more than $150; this is not factoring in time lost at work or certified mail charges to send documents around the state.

It begins with a lengthy record-gathering process during which an individual must compile their arrest records, the original indictment, summons, docket number, warrant records, and every other relevant piece of information. These can be gathered from a court, a public information database, the state police, or a lawyer and sometimes come at a cost. The state police record itself costs $41.

Akil Roper, chief counsel of re-entry at Legal Services of New Jersey (LSNJ), said this process alone can take weeks, and if it’s not done thoroughly or if any record is missed, it can be grounds for an objection causing the petitioner to have to start from scratch.

After compiling those records and filling out and notarizing the appropriate petition form, a person would file and serve them to a court; that costs up to $75. If the court accepts, they will be mailed back to the petitioner, who must then copy and distribute the forms to every party with a hand in their case including the county prosecutor, attorney general, several chief law enforcement officials, the division of criminal justice and several others.

Those recipients get to review the petition and the prosecutor has a chance to object if anything looks wrong. That can take several more months. From there, if everything squares away, the court will return a favorable order but that is far from the end. Even with an expungement order signed by a judge, a person must then redistribute that order to all the involved parties via certified mail and then await a letter from the state police giving the all-clear.

Roper said the process is complex and even with online tools and guides to aid individuals through the gantlet, one wrong move can send them back to square one.

Flooding the system

Though some states have created special pathways for marijuana-related expungements, Roper cautioned that any New Jersey legislation would need to take into consideration the time and effort required to get the public up to speed with expungement processes and provide assistance where possible.

What’s more, when former Gov. Chris Christie made a change to the expungement process in 2017, new eligible petitioners flooded the system and slowed things down further. If marijuana convictions were to be subject to expungement ranging back any number of years, that could mean hundreds of thousands of petitioners eager to get their records scrubbed. According to ACLU data, between 2000 and 2013, New Jersey police made nearly 280,000 arrests for marijuana possession.

“If what they’re saying is records can be expunged dating back years, well that’s a lot of folks headed to the courts,” Roper said. “It sounds like a great thing, but we need to be sure we have the resources in place to do this.”

Though there has been much talk about building in expungement language to any bill that heads to the governor’s desk, there aren’t many details available in the bills currently working their way through the Legislature.

In two of the most likely pieces of legalization legislation to get anywhere, expungement is given less than a page of consideration: Assemblyman Reed Gusciora’s bill states that “any person convicted of marijuana possession” prior to an effective date to be determined, shall “be eligible to present an application for expungement to the Superior Court.” Sen. Scutari has identical language in his Senate version.

Clean sheet

In the decriminalization measures: Assemblyman Jamel Holley’s (D-Union) version is more specific. It says that “after the expiration of a period six months following the court’s entry of the order of dismissal, the records of the person’s arrest shall be expunged.” That’s known as an “automatic expungement.” Holley’s bill would not require any action by the person charged or the payment of any fee.

Roper said “automatic expungement” may be a way to expedite the process and save a lot of people a lot of time by having the courts go through their records and scrub any dismissed files that did not result in a conviction. However, that would still require a substantial amount of work on the court’s part.

Assemblywoman Annette Quijano (D-Union) also introduced a measure allowing persons charged with or convicted of possessing, using, or being under the influence of marijuana to file a petition for expungement at any time after decriminalization or legalization legislation is passed. Her proposal would also direct the courts to establish an “expungement coordinator program” to assist those filing petitions. That coordinator would be a trained volunteer or lawyer working pro bono to help guide people through the process.

“There have been updates over the years,” Roper said, “but getting information out to the community involves getting out there, giving presentations, and trying to reach everyone…I’m certainly on board, but the details will need be thought through.”