Can NJ’s Effort to Legalize Pot Find a Way Through the Expungement Maze?

Carly Sitrin | June 5, 2018 | More Issues
Assembly panel raises myriad issues — from the sheer number of low-level convictions to a paper chase involving yellowing court records to duplicative databases — that must be addressed

For thousands of New Jerseyans convicted of minor marijuana possession, legalization could be the beginning of a new life. But to clear their records, they must first navigate a maze of legal and bureaucratic red tape that legislators are attempting to simplify.

The Assembly Judiciary Committee met yesterday to discuss the intricacies of the state’s expungement process if New Jersey were to move ahead with cannabis legalization or decriminalization. While every advocate and government official who approached the committee to speak was largely in favor of the Legislature’s efforts to expunge minor marijuana possession charges, they each brought with them a new wrinkle to the problem from technological snags to systemwide breakdowns.

“I thought this would be much easier,” Judiciary Committee Chair Assemblywoman Annette Quijano (D-Union) said during the hearing.

Expungements have always been a critical factor in the legalization deal for lawmakers and advocates as statistics continue to show the outsized impact prohibition has had on communities of color. American Civil Liberties Union data shows New Jersey is making more arrests for marijuana possession than ever before and black New Jerseyans are currently three times more likely to be arrested for possession than whites, despite similar rates of use.

But now, as Gov. Phil Murphy’s deadline for legalization efforts moves closer — he’s built legalization revenue into his next budget — legislators are finding out just how complicated this may be.

Quijano has introduced a bill that would allow people 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. The legislation would also direct the courts to establish an “expungement coordinator program” to assist those filing petitions.

“If we are to allow for legal possession and use of marijuana as many other states have done, then we have to ask ourselves if it’s morally just to allow those individuals to continue to carry the scarlet letter,” Quijano said.

Automatic expungements?

In nearly all of the pro-legalization discussions (including an NJ Spotlight roundtable) legislators, advocates, and even the governor have all been pushing for “automatic expungements” for those arrested or convicted of minor drug possession charges. The idea is that if possession and distribution suddenly become legal, the burden should not be on those serving time for something that was until recently a crime.

In theory, those records would be expunged automatically by an algorithm, or a dedicated team of volunteers or state workers, without the burden of filing and paying fees placed on the petitioner. In practice, it’s much more complicated.

Steve Somogyi, assistant director for the municipal court services of the New Jersey judiciary, said at the hearing that the sheer “numbers in play here can be really staggering.” According to Alyson Jones, also of the judiciary, the Administrative Office of the Courts is already processing about 10,000 expungement petitions every year.

Somogyi said he ran data for 2016 drug possession charges alone and found 43,000 charges filed in municipal courts. In 2017, that number was 40,000.

What’s more, he found that since 2008, arrests for possession of less than 50 grams of marijuana — an amount commonly legalized in other states — number 400,000. Since 1992, Somogyi said, there have been about one million arrests, all of which could be eligible for expungement.

And while some states have begun to float the idea of developing software or a computer algorithm to handle many of the expungement requests, much of the work in New Jersey would need to be done by hand.

Paper labyrinth

Quijano said in an interview with NJ Spotlight, that even though she is a municipal prosecutor, one of the most surprising facts to surface during the hearing was the bureaucratic labyrinth of paper records that would need to be dealt with manually at the municipal court level.

“This process is not just about technology. If it was it would be a much simpler conversation,” Somogyi said at the hearing. “This process is also a very manual process,” involving law enforcement, jails, and courts.

The state’s criminal-record system involves a multitude of files kept in different locations and in different forms. While most are now digitized, the original paper copies are kept and stored as they contain more detailed information than the computer systems will allow. For example, computer databases often do not differentiate between charges for marijuana and hashish (a cannabis resin). If legalization were to only apply to the cannabis plant or flower and not to concentrates or byproducts, there would be no way of sorting through those charges in the computer. Original paper reports on file with courts, law enforcement, or municipalities include that information.

And while an individual can petition each of those sources to clear their records, expunged documents are never destroyed but are instead separated and filed away out of publicly available spaces. They’re maintained because individuals applying to jobs in law enforcement or state security are required to disclose expunged information on their applications.

To assist with the unprecedented influx of potentially millions of expungement requests (if legalization legislation were to stretch back to the 1970s, as some have suggested) Quijano has proposed an expungement coordinator position that would need to have direct access to law enforcement and court databases to channel these documents through the system quickly.

Bill Caruso, an attorney and lobbyist with New Jersey United for Marijuana Reform, also pitched the idea of involving lawyers across the state on a pro-bono basis in the potential expungement efforts as well.

For Quijano and the other bill sponsors, legislating and funding these positions will be yet another challenge. Though Quijano said if legalization were to pass, some of that tax revenue would first go back into the expungement process.

No opportunity for streamlining

Unfortunately, the system itself is not set up for an “automatic” or streamlined expungement process, even with technology and manpower. For one, individual charges cannot be expunged under New Jersey law. As Somogyi pointed out in the hearing, multiple charges are often bundled together into cases: An individual who was arrested for theft and was also discovered with a small amount of marijuana cannot simply expunge the marijuana charge on its own.

“With the way things are integrated into computer system … we do not have the ability to just expunge the marijuana charge. We can only expunge an entire case or we cannot expunge it at all,” Somogyi said. New Jersey courts consider cases based on the date; if multiple crimes are committed on the same date at the same time, they are treated as one offense for expungement purposes.

In fact, having multiple charges is one of the most common reasons for an expungement rejection. “A case is a case and things are all tied together,” Somogyi said.

Even if an individual makes it through the legal gauntlet of paperwork, permissions, and fees necessary to expunge their charges, that record does not simply vanish. In the age of the internet, nothing can truly be erased. Google searches, news archives, and websites like the soon-to-be-shut-down can hold on to traces of these charges long after the official expungement has gone through in the state.

What’s more, employers typically turn to private companies and commercial databases to conduct background checks on potential employees. These companies purchase digitized copies of state criminal records in bulk and in some cases, rarely update them. The Sunlight Foundation recently published a series of articles outlining this practice and the discrimination that individuals can face when their thoroughly expunged records are not removed from all of these databases.

Sarah Lageson, an assistant professor at Rutgers School for Criminal Justice, said at the hearing that those who fail to remove mention of their past arrest from every possible source can even be punished more harshly than if they never attempted to clear their record at all.

“If the order is not updated in all the different databases, that can actually hurt the petitioner much more than just having the conviction because if that shows up on a background check or internet or in a government database the petitioner can be accused of lying … so it’s sort of a double punishment.”

Assemblywoman Shavonda Sumter (D-Passaic) said in an interview with NJ Spotlight after the hearing, that she’s beginning to see the expungement issue in a new light.

“When I was going in to this I was thinking it was overdue and that we could not consider legalization of recreational use without the expungement piece. After the hearing today, I realized we have a tremendous amount of work to do to ease access to expungement…We also need technology and support for the multiple layers that are entangled when the average person petitions to clear their record,” Sumter said.

For the bill’s sponsor, Quijano, there’s a lot of information to digest in a short time, but she said she is confident that she and her colleagues will find a path forward.

“This issue has so many tentacles,” Quijano said. “Today was an example of what good government should be. There was an open dialogue and an open exchange of information. My bill is not the end-all, it’s the beginning of an ongoing discussion.”