Low-Level Marijuana Expungements and Social Justice — In Through The Out Door

By NJSBA Staff posted 11-26-2019 11:20


Editor’s Note: The following article by Anthony M. Arbore was published as part of the Cannabis Law Committee Newsletter Vol. 2, No. 2, which was distributed to members of the Cannabis Law Committee. To learn more about joining a committee of the New Jersey State Bar Association, email us at [email protected]

It is no secret that the potential legalization of adult recreational use cannabis has not gone exactly as the current administration had planned. Legalization was to be coupled with expungement provisions that would effectively remove from the record all low-level marijuana/hashish/paraphernalia arrests and convictions. The intended result would be social justice for those previously labeled “convicted offenders” based upon their record thus potentially being “denied employment opportunities, housing, education, professional licenses, and other benefits generally available to other members of the public.”1

Senate bill S3205 (6/11/19) attempted to address this issue and the governor’s concerns in an ambitious and the governor’s concerns in an ambitious and broad-sweeping makeover of the current expungement process. Going forward, and as specifically related to low level marijuana-related offenses, the bill proposed the “impounding” of expunged records related to marijuana offenses, not simply “extraction and isolation” as currently set forth in the expungement statutes. For the purposes of expungeability, S3205 provided that certain indictable marijuana-related offenses would now be considered disorderly persons offenses thereby making them much easier to expunge. The categories of offenses included in this proposal consisted primarily of: (1) marijuana and hashish-related possession with intent to distribute; (2) distribution convictions limited to one ounce to less than five pounds of marijuana or less than five grams of hashish and (3) simple possession convictions of possession of more than 50 grams of marijuana or five grams of hashish. Those are what are commonly referred to as low-level indictable marijuana-related convictions.

As a corollary, S3205 proposed that the most minor marijuana-related offenses, i.e. disorderly persons offenses consisting of simple possession of less than 50 grams of marijuana or less than five grams of hashish along with possession of marijuana-related paraphernalia would not be considered convictions at all for expungement purposes. Since currently and historically there are a finite number of disorderly persons convictions that may be expunged at any one time, these proposed modifications were considered significant. S3205 also proposed an increase in the number of such convictions that could be included in an expungement application.

Most importantly, with regard to existing convictions of low-level marijuana-related offenses as of the bll’s effective date, S3205 proposed an “expedited” expungement procedure limited to any number of then-existing lowest level marijuana-related convictions. The proposed bill also included an 18-month waiting period from the expiration of the most current conviction for any number of lowest level marijuana-related offenses occurring on or after the effective date of the act along with a new three-year expungement time requirement for any number of low-level indictable marijuana-related offenses.

While applauding “the sponsors for seeking to further enhance this critically important avenue for social justice,”2 Gov. Murphy conditionally vetoed S3205 and set forth even greater proposed sweeping changes to the current expungement statutory scheme as a whole and, in particular, the handling of low-level marijuana convictions. As it pertained to low-level marijuana offenses, the governor’s 19-page conditional veto set forth a proposed “solution that would provide more immediate relief to those convicted of minor marijuana or hashish-related charges that will not have an undue impact on the processing of standard expungement petitions.”3

To a very real and substantive extent, the legislature listened. Rather than further modifying S3205, the senate incorporated the salient aspects of the governor’s low-level marijuana conviction social justice concerns into new Senate Bill S4154 which currently remains pending for potential action.

Mirroring the governor’s proposal set forth in his conditional veto, S4154 includes the automatic “sealing” of all post-enactment low-level marijuana convictions upon adjudication. Such “sealing” is currently applicable only to juveniles upon motion to the court as set forth in N.J.S.A. 2A:4A-62. “Sealing” results in far more confidentiality of records than an expungement. It results in the case itself being sealed with all index references being marked “not available” or “no record” resulting in both law enforcement agencies and the involved individual legally replying to any inquiry by indicating that there is no record. Exceptions include applications for prospective employment within the judicial branch, law enforcement or corrections agencies. 4 Importantly, S4154 also prohibits such sealed convictions from being utilized by the Pretrial Services Program established as a result of “Criminal Justice Reform in[PS1] its risk assessment or recommendations to the court on pretrial release. Similarly, such sealed records could not be used for sentencing purposes in any other case. This automatic procedure would also eliminate the need for any convicted individual to pursue an expungement application. S4154 further establishes that there shall be no waiting period for the expungement of any number of low-level marijuana-related offenses adjudicated prior to the effective date of the bill, other than payment of financial assessments under the new procedures set forth in the bill, completion of probation, parole or release from incarceration. Whether New Jersey will authorize adult recreational use cannabis remains to be seen. Perhaps in the interim, the social justice long sought by the governor on low-level marijuana-related convictions may see the light of day through the alternate doorway of senate bill S4154.

Anthony M. Arbore is a partner in Forster Arbore Velez in Ledgewood, New Jersey where he has been practicing primarily criminal and municipal court defense and plaintiff’s civil litigation for over 33 years. He has also been a Municipal Prosecutor for the entirety of his legal career.

1. Gov. Murphy’s Conditional Veto of Senate Bill 3205, 8/23/19, page 1.
2. Gov. Murphy’s Conditional Veto of Senate Bill 3205, 8/23/19, page 1.
3. Gov. Murphy’s Conditional Veto of Senate Bill 3205, 8/23/19, page 5.
4. N.J.S.A. 2A:4A-62c.