As New Jersey legislators hash out the final details of a marijuana legalization bill, activists have continued to look backward: What will happen to the people arrested for marijuana possession while it was still illegal?
Intertwined with the legal weed debate is a discussion over expungements, the process by which an offender can have a crime retroactively and completely removed from their criminal record. An expunged crime is “considered not to have occurred,” according to the New Jersey courts system, but requires a formal court petition and hearing.
But in the eyes of marijuana legalization advocates, placing the onus on the offender to get their slate wiped clean only continues the “drug war,” American Civil Liberties Union New Jersey executive director Amol Sinha said in June.
“To shift the burden of clearing the stain of an unjust law onto the people who have suffered from it unnecessarily already while others reap economic benefits contradicts the principles of equity, fairness, and justice that make legalization such an urgent racial and social justice priority to begin with,” said Sinha, testifying in support of a bill that would make most marijuana arrests eligible for automatic expungements.
Gov. Phil Murphy has been a vocal marijuana legalization proponent since the 2017 campaign trail, citing social justice concerns and the racial disparity among marijuana arrests.
“You can’t incarcerate somebody who did something on Friday and allow somebody who did it on Monday to do it legally,” Murphy said during an appearance on WHYY radio in July. “That doesn’t work for me. Frankly it doesn’t work for most folks who look at this. It’s got to be a part of it.”
Here is a look at how New Jersey’s expungement process works now — and what might change if marijuana is legalized.
What’s the current process for expungement?
Currently, an offender must file a petition for expungement but it’s left up to a judge to make the final decision, at a hearing that could involve a challenge from law enforcement against expunging the crime.
While Legal Services of New Jersey provides detailed instructions on how to self-file for expungement, many offenders hire an attorney to handle the process. The state Judiciary even recommends it: “The court system can be confusing, and it is a good idea to get a lawyer if you can,” according to its guidelines on expungement.
On Oct. 1, a new law will take effect that puts in place a six-year waiting period for expungements — instead of 10 years — and allows offenders to expunge up to four disorderly persons charges and three felonies.
Offenders who complete a drug court program will be eligible to have charges expunged immediately.
What’s the difference between an expungement and a conditional discharge?
While they largely serve the same purpose, a person arrested for marijuana possession is already entitled to a one-time conditional discharge, provided they have an otherwise clean criminal history and haven’t gone through any other diversionary program, such as pretrial intervention, are eligible.
The municipal judge hearing the case usually places special conditions on the discharge, usually involving mandatory drug testing and a one-year probationary period.
So if New Jersey legalizes marijuana, what charges would I be able to have expunged?
In March, Assemblywoman Annette Quijano, D-Union, introduced a bill outlining an expedited expungement process for marijuana offenders whose “past act is no longer considered to be a crime or offense.”
The simple answer: Convictions for possession of one ounce or less of marijuana or possession of drug paraphernalia for use with marijuana would be eligible for automatic expungement.
Why does marijuana legalization specifically pose a problem?
Marijuana arrests disproportionately involve offenders from low-income communities who could balk at the price of an attorney. One of the proposed amendments to the New Jersey marijuana legalization bill is to use part of the state marijuana tax revenue to defray some of the costs associated with seeking expungement for a marijuana possession charge.
And the sheer volume of marijuana arrests could also make it impossible to ensure that everyone with a conviction eligible for expungement is properly notified.
According to the Drug Policy Alliance, only 5,000 people in California applied for an expungement in 2017 despite an estimated 1 million people who were eligible.
Where does “automatic expungement” come in?
Automatic expungement, which is expected to be included in the marijuana legalization bill package, places the responsibility of expungement on law enforcement and the courts system. Instead of a marijuana offender filing for expungement, officials would proactively expunge their records.
Why isn’t automatic expungement the norm?
There have been nearly 697,000 marijuana possession arrests in the Garden State since 1980. While not all of them would be eligible for expungement, the number of cases would undoubtedly be in the hundreds of thousands. That’s a huge burden for the courts system or county prosecutors, who would have to investigate each conviction to determine which are eligible for expungement.
In other states with legal weed, legislators have included specific timelines for automatic expungement. A bill in California, for example, would give the state Department of Justice until July 1, 2019, to compile a list of marijuana cases eligible for expungement, estimated to top 220,000.
Prosecutors would have one year to decide which cases to challenge, while the Justice Department would expunge the rest.
The bill is currently awaiting Gov. Jerry Brown’s signature.
How will this all work in New Jersey?
It’s not clear yet. The bill introduced by Quijano does not detail any deadlines the courts or prosecutors would face in gathering cases for expungement.
A bill introduced last week by state Sen. Troy Singleton, D-Burlington, sets up a framework for automatic expungements — but doesn’t specifically name marijuana — for “certain” fourth-degree crimes, disorderly persons offenses and municipal ordinance violations.
Under current state law, possession of under 50 grams of marijuana is considered a disorderly persons offense.
Singleton’s bill would require the state Judiciary to collect cases eligible for automatic expungement on a quarterly basis, but requires a six-year waiting period.
But that six-year limit is a cut-off: An offender with a case that occurred longer than six years ago would have to file a petition for expungement the old-fashioned way.
“This general cut-off beyond a six-year ‘look back’ from the bill’s effective date is intended to prevent overwhelming administrative burdens … in implementing the bill’s automated expungement process,” the bill statement reads.
Mike Davis; @byMikeDavis: 732-643-4223; mdavis@gannettnj.com
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