The New Jersey State Bar Association is calling for an end to the “genuine crisis with the expungement of criminal records.” In a letter to the Hon. Glenn A. Grant, Acting Administrative Director, and New Jersey Attorney General Matthew J. Platkin, NJSBA President Timothy F. McGoughran raised concerns about a process that “has been plagued by delays” impacting tens of thousands of individuals seeking employment, housing and other opportunities.
In 2019, cannabis reform led to an electronic system to process expungements, regrading certain marijuana convictions to allow for immediate expungements and reduced waiting periods to expunge both indictable and disorderly person’s convictions. In 2021, the New Jersey Supreme Court ordered the automatic expungement of over 360,000 records, specifically including those records for solely cannabis-related offenses.
“Nearly three years later, despite these changes, the handling of expungements remains a labyrinthine process, often differing from county to county,” McGoughran said. “As practitioners on all sides of the expungement system, our members continue to experience issues that frustrate the goals of the legislation and negatively impact residents and the newly created cannabis marketplace.”
Four main concerns outlined in the letter are:
Lack of Uniformity in Application of the Expungement Statute: Despite AOC Directive #05-23, which provides guidance on expungements — specifically the compelling circumstances standard, expedited expungements and eCourts — the expungement process varies widely county by county. Some counties interpret certain convictions as eligible for expungement and some do not. Furthermore, support for the new statutory standard of compelling circumstances may be met with a description of a petitioner’s rehabilitative journey in one county and a demand of actual evidence of rehabilitation in another county.
Clean Slate Expungement petitions suffer the same disparate treatment where some counties read the statute to preclude expungements where the application includes an indictable offense along with multiple disorderly persons and/or municipal ordinance violations. Finally, some counties will permit any balance due on fines and restitution, permitting such fines to be converted to a civil judgment and carrying on with the expungement, while other counties demand proof that non-payment was not willful.
Backlogs and State Police Access to eCourts: There is a significant backlog in processing expungement petitions across the state. While the statute requires a hearing date be set no more than 60 days after the filing of a petition for expungement, delays of up to 24 months are not unheard of, NJSBA said. Pointing to a class action lawsuit by the Office of the Public Defender, the NJSBA points out that the State Police’s lack of access to a petitioner’s file in order to review and/or file any objections before an expungement is granted would address this delay and avoid an unnecessary and potentially costly secondary review.
State Police Secondary Review Process: The NJSBA points out that the secondary review of expungements petitions following a court order not only conflicts with the plain language of the expungement statute, but also raises potential constitutional concerns. . The NJSBA said the secondary review process may implicate the separation of powers clause because determining eligibility for expungement is a function of the Judiciary and has already been completed by the time an expungement petition is granted.
Expungements of Foreign Nationals: Immigration courts and immigration agencies do not recognize or extend comity to state expungements for foreign nationals. As a result, the entry of a plea at any time — even if the matter has been dismissed, vacated, and expunged — equates to a conviction unless there is explicit language that the plea itself has been vacated. Those with automatic expungements are forced to apply to the Superior Court to vacate the expungement in order to obtain these records in support of immigration relief from removal or an immigration benefit. The resulting burden adds delays and significant expense for foreign nationals.
The NJSBA set forth seven recommendations to improve the expungement process, including ending the secondary review by the State Police, issuing a directive to adopt a uniform application of the expungement process, and granting State Police access to eCourts so that they can more timely object to a petition prior to the grant of an expungement. A full copy of the letter may be found here.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.