Expungement Article

HISTORICAL BACKGROUND

In 1979, the Legislature developed comprehensive amendments to the criminal expungement laws. The purpose of the 1979 expungement statute was to assist the "one-time offender" who has led an otherwise lawful existence." (N.J.S.A. 2C:52-32.) This is consistent with the goals of the criminal justice system, which include rehabilitation. The costs of recidivism far exceed the costs of rehabilitation. This realization helped advance the NJ Drug Courts, one of the court's most successful initiatives. Unfortunately, many of those Drug Court graduates as well as other people with criminal convictions are often inhibited in their rehabilitation efforts due to difficulty in securing employment because of a criminal record. This may lead people back to criminal activities. (See National Association of Drug Court Professionals, Research Update on Adult Drug Courts By Douglas B. Marlowe, J.D., Ph.D., Chief of Science, Law & Policy http://www.nadcp.org/sites/default/files/nadcp/Research%20Update%20on%20Adult%20Drug%20Courts%20-%20NADCP_1.pdf.) Expungement of a criminal record is available in a variety of situations, including the expungement of arrests resulting in dismissals, juvenile records, disorderly and petty disorderly persons charges, and certain indictable crimes. (N.J.S.A. 2C:52-1, et seq.) The benefit of an expungement is that it removes the expunged records from public access. A public record check will reveal "no record information." (N.J.S.A. 2C:52-15.) A person whose record has been expunged may truthfully answer under oath that he or she has no criminal record. (N.J.S.A. 2C:52-27.) There are exceptions under which such records would be disclosed, including but not limited to an application for employment with law enforcement or the judiciary; applications to law school; and to the court, the parole board and the department of corrections. (N.J.S.A. 2C:52-17 to 2C:52-23.) However, for most positions of employment, many professional licenses and college applications, an expungement may mean all the difference in that person's ability to move forward with his or her rehabilitation and lead a productive life.

RESTRICTIONS ON EXPUNGEMENTS

The expungement statute, N.J.S.A. 2C:52-1, et seq., provides for the expungement of only one crime. The notion of what constituted "a crime" was the subject of much debate over the years. The issue concerning the definition of "a crime" was recently resolved by the New Jersey Supreme Court. The Court answered the question whether the language of the statute bars expungement of multiple offenses that were committed within a short period of time and were pled guilty to on the same date. In a 5-2 decision, the majority, unfortunately, held that an expungement is precluded when there is more than one crime that defendant is adjudicated guilty of, regardless of the timing of those crimes, even if the conviction date is the same. [In re J.S. and G.P.B, 223 N.J. 54 (2015).] The majority of the Supreme Court rejected the "one-night spree" concept applied in In re Fontana, 146 N.J. Super. 264 (App. Div. 1976). It reasoned that, prior to the 1979 amendments, the statute referred to "convictions" not "crimes." The court in Fontana found that since a "conviction" could encompass multiple crimes that occurred during one ongoing crime spree, an expungement of the crimes involving the same participants, which occurred over a relatively short time frame and had judgments of convictions that were entered same day, would be eligible for expungement. The 1979 amendments contained different wording, no longer referring to "convictions" but rather to "crimes." The Supreme Court reasoned that since the Legislature used the term prior or subsequent "crime" rather than "conviction," it intended to preclude expungement where an individual committed a second crime even if the two crimes result in a single conviction date and sentence. This effectively overruled Fontana. The Court further noted that since the Legislature did not amend that portion of the statute in its 2010 amendments, following the 2008 holding in Ross that rejected the "one-night spree" concept in the context of expungements, it sought to limit the eligibility of petitioners as per Ross. [See In re Ross, 400 N.J. Super. 117 (App. Div. 2008).] Although the Supreme Court has interpreted the statute as prohibiting an expungement of two crimes that occurred at different times even if the convictions occurred on the same date, a person is not precluded from an expungement if he or she pleads guilty to two counts of the same indictment when there are multiple counts charged involving the same crime. Justice LaVecchia's dissent, joined by Justice Albin, made a public policy argument for a more expansive view of the statute. The dissent noted that there are numerous collateral consequences associated with a criminal conviction. One of the most significant is the inability to secure employment. The dissent noted that studies have found that a criminal record reduces the likelihood of securing an offer of employment by about 50 percent and that African Americans and Latinos are disproportionately affected. [Amy L. Solomon, In Search of a Job: Criminal Records as Barriers to Employment, NIJ J., June 2012, at 43 (citing Robert Brame et al., Cumulative Prevalence of Arrest from Ages 8 to 23 in a National Sample, 129 Pediatrics 21, 21-27 (2012)); The National Institute of Justice, http://nij.gov/about/Pages/welcome.aspx (last modified Feb. 25, 2013).] The dissent reasoned that the language "crime" versus "conviction" is subject to more than one interpretation. The dissenters opined that an expungement should be permitted if a person has not been convicted of a crime prior or subsequent to the judgment of conviction that he or she seeks to expunge. That Judgment of conviction may contain multiple counts, but on the conviction date, the person has not been previously or subsequently convicted of another offense and is therefore a "one-time offender." The dissent looks to the language of Section 2(a) of the statute, which provides that a person may apply for an expungement if he or she has not been adjudged a disorderly or petty disorderly person on more than two occasions. [N.J.S.A. 2C:52-2(a).] Hence, that portion of the statute considers the occasions of conviction, rather than the number of counts contained therein. Moreover, there is no indication in the legislative history that it intended to alter the statute's meaning with the wording change or to abandon the approach taken in Fontana. Finally, the dissent reasoned that there are many other safeguards against abuse of the expungement process, such as prohibiting expungement of certain crimes, including murder, kidnapping, human trafficking, sexual assault, arson and other serious crimes. Therefore, it is the dissenters' position that a liberal approach is consistent with public policy and the Legislature's goals "to reward efforts at rehabilitation and facilitate reentry when appropriate, and to provide relief to certain one-time offenders who have rejected their criminal past." [In re J.S. and G.P.B, 223 N.J. supra at 84, quoting In re Kollman, 210 N.J. 557, 580 (2012), quoting N.J.S.A. 2C:52-32.] It is interesting to note that the reasoning of the dissent is also consistent with President Obama's initiative to promote rehabilitation and reintegration of formerly incarcerated convicted defendants back into the community. These programs, announced in a press release on November 2, 2015, include adult reentry education grants, guidance concerning arrests and public housing, "banning the box" on federal employment applications, expanding job training and other programs for people with criminal records. (https://www.whitehouse.gov/the-press-office/2015/11/02/fact-sheet-presidentobama-announces-new-actions-promote-rehabilitation.) Society has a vested interest in helping rehabilitated offenders re-acclimate to the community. If rehabilitated offenders have assistance with basic needs such as housing, education, health care (including substance abuse and mental health), and employment, they are less likely to reoffend, saving society a monetary cost and preserving the opportunity for the individual to make a valuable contribution to society. (https://www.bja.gov/Publications/CSG-ReducingRecidivism.pdf; https://csgjusticecenter.org/wp-content/uploads/2014/08/SCA_Fact_Sheet.pdf.)

EXPANSION OF EXPUNGEMENT OPPORTUNITIES

On April 18, 2016, new legislation became effective. Although the new amendments will not impact the foregoing type of situation, the legislation has reduced the waiting time to expunge certain offenses and offers other expungement opportunities. The new amendments provide four major changes to the expungement statute:

1. "Drug Court" Expungement shall be granted to a Drug Court graduate allowing for the expungement of that graduate's entire criminal record for all disorderly/petty disorderly persons offenses and crimes, except those crimes barred pursuant to N.J.S.A. 2C:52-2b and c, provided that the individual has not re-offended since graduating Drug Court and the court has not determined that the need for availability of such records outweighs the desirability of having the person freed from any disabilities associated with their availability. Interestingly, crimes prohibited from expungement include certain distribution and possession with intent to distribute narcotics offenses. Moreover, if a Drug Court graduate is convicted of any crime following the Drug Court Expungement, all expunged convictions may be restored to public access and the person will be forever barred from any future expungement. Nonetheless, this still serves as a significant incentive and opportunity for Drug Court participants to stay on the right track. Prospective as well as past Drug Court graduates are permitted a Drug Court Expungement without any filing fee, although certain procedural requirements are waived for prospective graduates, but are not applied retroactively to past graduates. (N.J.S.A. 2C:35-14m.)

2. The new amendments to N.J.S.A. 2C:52-2 continue to provide for an "early pathway" for the expungement of indictable crimes and added certain provisions of the endangering the welfare of a child statute to the list of crimes that are not eligible to be expunged. N.J.S.A. 2C:52-2 still provides that only one crime may be expunged, but now allows for the expungement of up to two disorderly or petty disorderly persons offenses in addition to that crime. However, separate petitions must be filed for each conviction. The standard waiting period of 10 years from the date of the most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration for the crime is still applicable and may be reduced to five years upon a "public interest" finding by the court. The burden is on the petitioner to present evidence that the expungement is in the public interest in consideration of the nature of the offense, and the applicant's character and conduct since the conviction.

3. There is now an "early pathway" for disorderly/petty disorderly persons offenses. N.J.S.A.2C:52-3 provides for the expungement of up to three disorderly/petty disorderly persons offenses after the passage of five years. The new amendments allow a "public interest" application to be filed after only three years.

4. Arrests for any crime, disorderly/petty disorderly persons offense or municipal ordinance not resulting in conviction may be expunged without the filing of a petition or filing fee if the request is made at the time of dismissal. (N.J.S.A. 2C:52-6.) Relief from these procedural requirements and costs is significant. These amendments provide greater opportunities to expunge more offenses in an earlier timeframe. The requirement of separate petitions for separate convictions is somewhat onerous, but the overall benefits of the statute amendments appear to substantially align with the primary objective of the expungement statute, which is to provide relief to the reformed offender who has disassociated from unlawful activity to allow for a fresh start.

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