Legislature Clears the Way for Expunging Minor Drug Offenses

Colleen O'Dea | December 13, 2019 | Social
Assembly committee passed bill without hearing any testimony Thursday; both houses will vote on the measure Monday
Credit: Thought-Catalog/Unsplash
Both houses of the Legislature are set to vote on a measure that would allow people to get minor drug offenses expunged from their record.

With the potential legalization of marijuana in New Jersey on hold for at least another year, lawmakers in the meantime are moving quickly to make it easier for people to rid their records of minor drug and other offenses.

On Thursday, without hearing any testimony, an Assembly committee passed a bill (A-5981) that would revise a number of expungement rules, set up an e-filing system for expungement and eliminate the current application fees, and create a new automated “clean slate” process that would allow for the sealing of all prior non-serious crimes after a decade. It would also allow a person to immediately seek expungement for older offenses involving small amounts of marijuana or hashish. For minor drug offenses that occur after the bill is passed, a judge would immediately remove them from a person’s record.

While the bill goes beyond clearing drug offenses, Democrats consider that provision particularly important, given they were unable to gain enough votes to pass marijuana legalization legislation and are now working toward putting the question of whether to allow adults to smoke pot recreationally on the ballot next November. Both houses of the Legislature held required public hearings on the constitutional amendment Thursday and are set to vote on the measure Monday.

Many consider this to be a social justice issue. A 2017 ACLU-NJ report found the state’s marijuana laws disproportionately affect blacks, who are three times more likely to be arrested for pot than whites despite similar usage rates. What’s more, a criminal conviction can hurt a person’s ability to get a job, financial aid and housing for years.

“Making New Jersey’s expungement process more accessible, with less red tape and greater opportunities for people to succeed in rebuilding their lives after a sentence, plays an important part in moving New Jersey toward social justice,” said Sarah Fajardo, policy director at ACLU-NJ. “Now, with the specter of a ballot question delaying legalization of adult use of cannabis in our state, this is a necessary step to begin to address the inequities and racial disparities that have characterized marijuana prohibition.”

Following the Assembly Appropriations Committee’s party-line approval of the bill, Assemblyman Jamel Holley (D-Union), one of the bill’s sponsors, issued a statement touting how a reformed expungement process will help more than just those with minor drug convictions.

Fighting for social justice

“This is a fight for social justice — for the many residents who need a clean slate,” he said. “This legislation forges a path to real justice for over 2,000 eligible citizens and opens the doors to them for economic opportunity and a second chance. By shifting from the current system to one that is automated and carries a lesser financial burden, we can help more people gain employment and seize the opportunities life presents them.”

For legislators like Sen. Sandra Cunningham (D-Hudson), sponsor of the bill in the upper house and a sponsor of prior bills easing expungement, the measure is a way to finally make the process as fair as it can be.

“We’ve been heading in the right direction for years, but at some point you have to get to your destination,” she said. “This may not be perfect, but it certainly makes it easier for people to get a fair chance at getting their lives back in order.”

The committee voted on the bill without hearing any testimony even though it was the first, and apparently only, hearing the measure will get — it is on the board lists of the full Assembly and Senate on Monday. Assemblyman John Burzichelli (D-Gloucester), who chairs the committee, said that the measure is essentially identical to a previously passed bill that was conditionally vetoed by Gov. Phil Murphy.  As it incorporates virtually all of Murphy’s suggestions, additional testimony was unnecessary, Burzichelli said.

Democrats voted to release the bill, while Republicans opposed. Assemblyman Harold Wirths (R-Sussex) said he was balking because he does not support requiring “law-abiding taxpayers to pay for expungements” of those who have committed crimes.

The bill includes a $15 million supplemental appropriation to pay for additional staff to process expungement applications until the state is able to set up an automatic clean slate expungement system for most nonviolent crimes. While the governor and lawmakers have tussled over spending in recent months, Murphy called that funding “necessary” in his veto message.

A national model

Fajardo said the eventual creation of an automated system, in which a person’s record would be sealed of all lower-level, nonviolent offenses after 10 years, is crucial for ensuring that individuals get a second chance — and it could become a national model. Recommendations for that system would be up to a 13-member task force, which would have six months to study the issue.

“For too long, New Jersey’s expungement system deterred a smooth transition back to civic life rather than helping people move beyond New Jersey’s criminal justice system, which bears the country’s worst Black-white racial disparities in incarceration,” Fajardo said. “This legislation’s clean-slate provision, which creates an automated process to replace a system that often resulted in people eligible for expungement never getting their records cleared, could transform a process that let people slip through the cracks into a national model for justice and fairness.”

In addition to the clean-slate process, the bill could create an immediate process for expunging all marijuana or hashish possession, distribution, or drug paraphernalia crimes and offenses, except for those involving large amounts of drugs. Once the measure is signed, a person with a prior conviction could immediately file for expungement on completion of all jail time, probation, parole and court fees. If the bill becomes law, the court would seal all records of anyone charged with possessing less than one ounce of marijuana or less than five grams of hashish “immediately upon the disposition of the associated charges.” Those with convictions related to large amounts of pot or hash could apply for expungement after three years.

The details of the bill are complex, setting out new rules for several other types of expungements. Among these other provisions, the measure would:

  • Reduce the waiting period before a person could seek to expunge one or several minor crimes and disorderly offenses from six years to five years;
  • Lower from five years to four years the waiting period before a person could apply for an early “public interest” expungement due to “compelling circumstances;”
  • Change, for certain expungement purposes, the categorization of possession or distribution of less than five pounds of marijuana or less than one pound of hashish from a crime to a disorderly persons offense;
  • Eliminate the existing $75 filing fee for all expungement applications;
  • Require the Administrative Office of the Courts to develop an e-filing system for all expungement filings.

“A more advanced and manageable expungement process will bring us a step closer to social equity and social justice for offenders who have not committed a law violation in years,” said Assemblywoman Verlina Reynolds-Jackson (D-Mercer), another sponsor of the bill. “Removing barriers to work opportunities and housing will help to raise the status of many African-American and Latino American residents, providing them with the ability to move up in the workplace and climb the economic ladder. It’s time we get this done for all of those who have been held back because of their record.”