Restoration of Rights, Pardon, Expungement & Sealing
Last updated: April 22, 2016
I. Restoration of Civil Rights/Firearms Privileges
A. Vote, Jury
The rights to vote and serve on a jury are lost to anyone who is serving a sentence for “any indictable offense,” which includes all crimes except petty offenses. N.J. Stat. Ann. §§ 2C:51-3(a) and (b), 19:4-1(8)(voting); 2B:20-1(e)(jury); 2C:1-4(b) (“petty offenses . . . are not crimes within the meaning of the Constitution of this State”).1 The right to vote is automatically restored upon completion of the service of sentence, probation, or parole, whichever occurs later. § 19:4-1(8).2 If loss of the suffrage was imposed by the court as part of the punishment for a criminal violation of election laws, only a pardon restores the vote. §§ 19:4-1(6), (7). The right to sit on a jury is restored only by pardon. See § 2A:167-5.
B. Public Office and Employment
A person holding public office or employment at the time of conviction of a crime involving dishonesty or a third or higher degree crime forfeits his position. N.J. Stat. Ann. § 2C:51-2(a). In addition, if the crime is one “involving or touching on” his office or employment, he is “forever disqualified” from holding any office or employment. §§ 2C:51-2(a)(2), (d); see McCann v. Clerk, City of Jersey City, 770 A.2d 723, 731 (N.J. Super. Ct. App. Div. 2001) (former mayor convicted of fraud and bribery while in office barred from running again), aff’d, 773 A.2d 1151 (N.J. 2001). This so-called Forfeiture Act has been interpreted to extend to all government employment. Collateral consequences affecting public employment and pension benefits are discussed in greater detail in Part III, infra.
The bar to holding public office may be relieved by a governor’s pardon or gubernatorial restoration of rights under § 2A:167-5. In addition, any forfeiture or disqualification which is based upon a conviction of a disorderly person’s offense “may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.” § 2C:51-2(e). An individual subject to the Forfeiture Act may petition for expungement under § 2C:52-2(a); provided that an expungement does not remove the Forfeiture Act bar where the crime is one “involving or touching on” the person’s office. See In re Expungement Petition of D.H., 6 A.3d 421 (N.J. 2010). A certificate of rehabilitation granted under the Rehabilitated Convicted Offenders Act may remove the otherwise permanent disqualification from public employment in some cases. See § 2A:168A-8(c), discussed in Part IIC.
C. Collateral Consequences
N.J. Stat. Ann. § 2C:51-1(a), derived from section 306.1 of the Model Penal Code, limits the collateral consequences of conviction to those that are necessarily incident to the execution of the court-imposed sentence, that are provided by the constitution or a statute, or that are provided by the order or regulation of a court or public official exercising a jurisdiction conferred by law “when the commission of the offense or the conviction or the sentence is reasonably related to the competency of the individual to exercise the right or privilege of which he is deprived.”
D. Occupational and Business Licensing
Under N.J. Stat. Ann. § 2A:168A-2, no licensing board may discriminate against or disqualify an applicant based upon conviction of a crime unless the conviction “relates adversely to the occupation, trade, vocation, profession or business for which the license or certificate is sought.” Exceptions are the bar to public employment in the Forfeiture Act, discussed supra, and the bar to licensure as a mortgage originator in § 17:11C-57. Any disqualification based upon conviction must be explained in writing in terms of specific enumerated factors. A licensing authority is “precluded” from “disqualifying or discriminating against” an applicant who has been pardoned, had the conviction expunged, or been granted a certificate by a parole board or court indicating that “the applicant has achieved a degree of rehabilitation indicating that his engaging in the proposed employment would not be incompatible with the welfare of society.” § 2A:168A-3. This provision is discussed in greater detail in Part III, infra.
E. Public Contracts
People convicted of bribery or a number of offenses relating to misconduct in office are barred from “submit[ting] a bid, enter[ing] into any contract, or . . . conduct[ing] any business with any board, agency, authority, department, commission, public corporation, or other body of this State, of this or one or more other states, or of one or more political subdivisions of this State for a period of” 10 years if second-degree crime, five years if third-degree crime. N.J. Stat. Ann. § 2C:51-2(f). The Attorney General may waive this bar “as the public need may require.” Id.
A person convicted in any jurisdiction of specified violent crimes may not purchase, own, possess or control any firearm. See N.J. Stat. Ann. § 2C:39-7. A person convicted of “any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L.1991, c.261 [§ 2C:25-19] whether or not armed with or possessing a weapon at the time of such offense,” will be denied a handgun purchase permit and firearms purchaser identification card. See §§ 2C:58-3(c)(1), 2C:58-4(c). A person may apply to the Governor for restoration of civil rights or privileges through pardon (other than disqualification from public office by impeachment). See § 2A:167-5. A governor’s pardon can also restore firearm rights, see N.J. Const. art. V, § 2, ¶ 1, but a certificate of rehabilitation does not. See United States v. Breckenridge, 899 F.2d 540, 542-43 (6th Cir.), cert. denied, 498 U.S. 841 (1990).
II. Discretionary Restoration Mechanisms
A. Executive Pardon
The power to pardon is vested in the Governor, except in cases of treason and impeachment. N.J. Const. art. V, § 2, ¶ 1.3 The Constitution allows for the creation of a commission to assist and advise the governor on pardons, but no such single-purpose panel exists. Id. Governor may also act to restore civil and all other rights, except the right to hold office. N.J. Stat. Ann. § 2A:167-5. (Latter statute does not seem to provide a separate process from pardon.) “On or before March 1 of each year, the Governor shall report to the Legislature each reprieve, pardon and commutation granted, stating the name of the convicted person, the crime for which the person was convicted, the sentence imposed, its date, the date of the pardon, reprieve or commutation and the reasons for granting same.” N.J. Stat. § 2A:167-3.1.
The Governor may refer applications for pardon to the New Jersey State Parole Board for investigation and recommendation, N.J. Stat. Ann. § 2A:167-7, but the Board’s recommendation is not binding on the Governor. See id.; N.J. Const. art. V, § 2, ¶ 1; see generally Zink v. Lear, 101 A.2d 72 (N.J. Super. Ct. App. Div. 1954). Parole Board composed of 15 members (and three alternatives) appointed by the Governor with the advice and consent of the Senate for six-year terms. N.J. Stat. Ann. § 30:4-123.47(a). All but the alternates serve on a full-time basis. § 30:4-123.47(c). All policies and decisions are by majority vote. Id. § 30:4-123.48(a). No regulations have been promulgated governing clemency applications.
No formal eligibility requirements; federal and out-of-state offenders are not eligible for a gubernatorial pardon.
Restoration of civil rights and relief from all legal disabilities, including right to hold public office except in cases of impeachment. See N.J. Stat. Ann. § 2A:167-5; Brezizecki v. Gregorio, 588 A.2d 453, 457-58 (N.J. Super. Ct. Law Div. 1990). Pardon makes recipient eligible for expungement. See In re L.B., 848 A.2d 899, 907 (N.J. Super. Ct. Law Div. 2004)
Frequency of Grants
Recent governors have granted relatively few pardons, and generally only at end of their terms. They do not appear to have exercised their separate power to restore civil rights (N.J. Stat. Ann. § 2A:167-5). As of March 2016, Gov. Christie had granted nine pardons, six to out-of-state residents convicted under New Jersey firearms laws.4 Governor Corzine granted 13 pardons out of over 400 applications, most of them to non-violent offenders whose convictions were over a decade old. Source: New Jersey Division of Criminal Justice.
NJ Div. of Criminal Justice
B. Judicial sealing or expungement
The “primary objective” of the expungement statute is to “provid[e] relief to the reformed offender who has led a life of rectitude and disassociated himself with unlawful activity[.]” N.J. Stat. Ann. § 2C:52-32. “[A] central purpose of the expungement statute was to broaden the reliable base of information that will be maintained for law enforcement[,]” thus “requir[ing] merely the extraction and isolation, not the destruction, of expunged records.” In re D.H., 6 A.3d 421, 427 (N.J. 2009).
Legal Services of New Jersey has published a detailed guide to judicial expungement in New Jersey. See Clearing Your Record: A six-step guide to expunging criminal records in New Jersey (April 2016), available at http://www.lsnjlaw.org/publications/pages/manuals/cyr.pdf.5 See also the provisions for relief at sentencing under the Rehabilitated Convicted Offenders Act, discussed in II.C infra.
1. Expungement of conviction records
Expungement of conviction and juvenile adjudication records is available for certain “indictable” offenses (felonies), “disorderly persons offenses” (misdemeanors), “petty disorderly persons offenses,” and municipal offenses. Different waiting periods apply depending on the type of offense. A pardon creates a basis for expungement for otherwise ineligible offenses. In re L.B., 848 A.2d 899, 903 (N.J. Law Div. 2004). Special procedures and eligibility criteria apply for “drug court” cases where special probation was imposed, see N.J. Stat. § 2C:35-14, and they are described in section 2, below.
Eligibility – Types of offenses
For indictable offenses, the waiting period is ordinarily the later of “10 years from the date of … conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration.” N.J. Stat. Ann. § 2C:52-2(a). However, a court may 1) waive the ten-year waiting period where all requirements but payment of fine are satisfied and “compelling circumstances” prevent full payment of the fine;6 or 2) entertain expungement motion after five years if it finds that a person has had no subsequent convictions and that “expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant’s character and conduct since conviction.” § 2C:52-2(a)(1), (2); See In the Matter of LoBasso, 33 A.3d 540, 550-52 (N.J. Super. Ct. App. Div. 2012) (discussing factors courts may consider in determining whether expungement is in the public interest).
Most serious and violent offenses, and serious drug offenses are ineligible, as are offenses committed by public officials and employees that “touched” the public office or position. §§ 2C:52-2(b), (c). 7
Effective April 18, 2016, a person may append to a petition for expungement of an indictable offense up to two petitions for expungement of disorderly persons/petty disorderly persons offenses. § 2C:52-2(a) (as amended by P.L. 2015, c. 261). 8 If multiple petitions are appended, the waiting period for all offenses is the later of “10 years from the date of his most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration.” § 2C-52:2(a).
Disorderly persons & petty disorderly persons offenses
Up to three disorderly persons offenses/petty disorderly persons offenses may be expunged at the same time, though a separate petition must be filed for each offense. N.J. Stat. Ann. § 2C:52-3(b). The waiting period is ordinarily five years “from the date of [the] most recent conviction, payment of fine, satisfactory completion of probation or release from incarceration for any disorderly persons or petty disorderly persons offense, whichever is later.” Id. The waiting period may be reduced to three years if the person has had no intervening convictions and “the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant’s character and conduct since conviction.” § 2C:52-3(b)(2). See In the Matter of LoBasso, 33 A.3d at 550-52 (discussing factors courts may consider in determining whether expungement is in the public interest). The waiting period may be waived entirely if “less than five years has expired from the satisfaction of a fine, but the five-year time requirement is otherwise satisfied, and the court finds that the person has substantially complied with a [a fine payment plan], or could not do so due to compelling circumstances ….” § 2C:52-3(b)(1). “In determining whether compelling circumstances exist …, a court may consider the amount of the fine or fines imposed, the person’s age at the time of the offense, the person’s financial condition and other relevant circumstances regarding the person’s ability to pay.” § 2C:52-3(b).
Although expungement under § 2C:52-3 is not available to a person that has been convicted of an indictable offense, see § 2C:52-3(a), (b), such persons may, pursuant to § 2C:52-2, petition for expungement of disorderly persons offenses at the same time they petition for expungement of an indictable offense. This process is described in the preceding section.
Youthful drug offenses
Persons convicted of low-level drug offenses at age 21 or younger may petition for expungement one year after the date of conviction, termination of probation, or discharge from custody, whichever is later. N.J. Stat. Ann. § 2C:52-5. Convictions for sale and distribution are ineligible, except in cases involving small amounts of marijuana or hashish. Id.
[E]xpungement under this section shall be granted only if said person has not, prior to the time of hearing, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act or any subsequent or previous violation of chapters 35 or 36 of this title or of P.L. 1955, c. 277, § 3 (C. 2A:170-77.5) or of P.L. 1962, c. 113, § 1 (C. 2A:170-77.8), or who has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program.
Municipal ordinance violations
A person guilty of violating a municipal ordinance may petition for an expungement after 2 years “from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later.” N.J. Stat. Ann. § 2C:52-4. Prior expungements do not bar subsequent expungement for a municipal ordinance violation. § 2C:52-14(e).
Eligibility – Criminal history
Expungement is not available if a person has previously had a conviction expunged (unless seeking expungement for a municipal offense), N.J. Stat. § 2C:52-14(e), or has, prior to or subsequent to the convictions to be expunged, been granted dismissal of charges following completion of a supervisory treatment or diversion program. § 2C:52-14(f). A person with pending charges is ineligible for expungement. § 2C:52-13.
Expungement of an indicatable offense (under § 2C:52-2) or of disorderly/petty disorderly offenses (under §§ 2C:52-2 or 2C:52-3) is not available if a person has had, in addition to the convictions for which expungement is sought, a conviction for an indictable offense or more than two convictions for disorderly persons offenses. §§ 2C:52-2(a); 2C:52-3(a), (b).
When considering expungement of an adult indictable offense, the court is required to give weight to any prior or subsequent disorderly persons offenses:
Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.
The procedures for expungement of conviction records are the same for all offense types. Requirements for expungement petitions are set out in N.J. Stat. Ann. §§ 2C:52-7 (contents of petition) and -8 (required statements that must accompany petition). Petitions are filed in the Superior Court where the most recent conviction occurred. §§ 2C:52-2(a); 2C-52-3(b). Upon receipt, the court sets a hearing date within the next 35 to 60 days and serves the petition and supporting documents to the “Superintendent of State Police; the Attorney General; the county prosecutor of the county wherein the court is located; the chief of police or other executive head of the police department of the municipality wherein the offense was committed; the chief law enforcement officer of any other law enforcement agency of this State which participated in the arrest of the individual; the superintendent or warden of any institution in which the petitioner was confined; and, if a disposition was made by a municipal court, upon the magistrate of that court.” §§ 2C:52-9, -10. The county prosecutor has the burden of verifying the petition and showing that expungement is inappropriate:
Notwithstanding the notice requirements provided herein, it shall be the obligation of the county prosecutor of the county wherein any petition for expungement is filed to verify the accuracy of the allegations contained in the petition for expungement and to bring to the court’s attention any facts which may be a bar to, or which may make inappropriate the granting of, such relief. If no disabling, adverse or relevant information is ascertained other than that as included in the petitioner’s affidavit, such facts shall be communicated by the prosecutor to the court.
§ 2C:52-24. If there is no objection from the persons served, then the court may grant or deny the petition without a hearing. §§ 2C:52-11, -12.
A petition for expungement of a conviction record “shall be denied” if the person does not meet the statutory eligibility requirements described above, or if the “need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter.” N.J. Stat. § 2C:52:14(b).
Effect of expungement
N.J. Stat. Ann. § 2C:52-27:
Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the [person] may answer any questions related to their occurrence accordingly . . . .
See also § 2C:52-1(a) (“expungement shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system”). Officers, departments and agencies notified of the expungement order are required to reply, when asked about records for the individual, that there is no record information. § 2C:52-15. Expunged records shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a presentence report or for purpose of sentencing. § 2C:52-21. Persons who reveal expunged offenses are subject to a fine and potentially to six months’ jail. §§ 2C:52-30 and 2C:43-8.9 Expunged records shall be disclosed to appropriate officials when a defendant in a subsequent criminal case is seeking admission to a diversionary program. § 2C:52-27(b).
Public Office or Employment: Expungement ordinarily relieves the bar to public office applicable to those convicted while holding public office or employment. In re Forfeiture of Public Office of Nunez, 894 A.2d 1176, 1178 (N.J. Super. Ct. App. Div. 2006). However, only a pardon or a certificate of rehabilitation granted pursuant to N.J. Stat. § 2A:168A-7 will permit a former government employee to overcome the mandatory and permanent bar to public employment found in the Forfeiture Act (N.J. Stat. Ann. § 2C:51-2(d) for an offense committed in office that “involves or touches on” the office or employment. See In re D.H., 6 A.3d 421, 430-32 (N.J. 2009). The Court in In re D.H. noted that the legislature created a “relief valve” in 1988 by adding a provision that “[a]ny forfeiture or disqualification . . . which is based upon a conviction of a disorderly persons or petty disorderly persons offense may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.” See N.J. Stat. Ann. § 2C:51-2(e).
Expungement does not provide relief for a person seeking employment with the judicial branch or with law enforcement or corrections agencies. An applicant must reveal expunged records to those employers, and “such information shall continue to provide a disability as otherwise provided by law.” § 2C:52-27(c). See also Cicchetti v. Morris County Sheriff’s Office, 947 A.2d 626, 639 (N.J. 2006) (holding that “nothing in [§ 2C:52-27] imposes an absolute bar on employment with a law enforcement agency,” while observing that the plaintiff’s particular expunged conviction would not have statutorily disqualified him from a law enforcement position).
Expungement following “drug court” special probation
As of April 2016, a Superior Court may order expungement of “of all records and information relating to all prior arrests, detentions, convictions, and proceedings for any offense enumerated in Title 2C of the New Jersey Statutes [Code of Criminal Justice]” upon successful discharge from a term of special probation under §§ 2C:35-14 if the person completes a substance abuse treatment program and is not convicted of an offense during the term of special probation. N.J. Stat. Ann. § 2C:35-14(m)(1) (added by P.L. 2015, c. 261).10 This expungement authority is distinct from the authority for general conviction records described above, and different procedures and criteria apply; however, the effect of expungement is the same. The court must order expungement “unless it finds that the need for the availability of the record outweighs the desirability of having the person freed from any disabilities associated with their availability.” § 2C:35-14(m)(1). Offenses that are ineligible for expungement under § 2C:52-2 (expungement authority for indictable offenses, see above) may not be expunged. § 2C:35-14(m)(2). If a person who receives an expungement under this authority is subsequently convicted of a crime, then “the full record of arrests and convictions may be restored to public access and no future expungements shall be granted….” § 2C:35-14(m)(4). Persons convicted before this authority was enacted in April 2016 may petition for expungement if they meet similar eligibility requirements. See § 2C:35-14(m)(5).
2. Expungment of juvenile delinquency adjudications
N.J. Stat. Ann. § 2C:52-4.1(b):
[A]ny person who has been adjudged a juvenile delinquent may have his entire record of delinquency adjudications expunged if:
(1) Five years have elapsed since the final discharge of the person from legal custody or supervision or 5 years have elapsed after the entry of any other court order not involving custody or supervision, except that periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c.77 (C.2A:4A-44), shall not be considered in calculating the five-year period for purposes of this paragraph;
(2) He has not been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the 5 years prior to the filing of the petition, and no proceeding or complaint is pending seeking such a conviction or adjudication, except that periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c.77 (C.2A:4A-44), shall not be considered in calculating the five-year period for purposes of this paragraph;
(3) He was never adjudged a juvenile delinquent on the basis of an act which if committed by an adult would constitute a crime not subject to expungement under N.J.S.2C:52-2;
(4) He has never had an adult conviction expunged; and
(5) He has never had adult criminal charges dismissed following completion of a supervisory treatment or other diversion program.
Juvenile adjudications may also be expunged in the same manner as adult convictions for offenses that would have constituted an indictable offense (§ 2C:52-2), a disorderly or petty disorderly persons offense (§ 2C:52-3), or an ordinance violation (§ 2C:52-4). § 2C:52-4.1(a).
The procedures and criteria for expungement of juvenile adjudication records are the same as those that apply generally to conviction records, which are discussed in the preceding sections. The bars to expungement based on prior criminal history described in § 2C:52-14 (discussed above) also apply to juvenile adjudications, as does the bar in § 2C:52-13 that prohibits expungement for persons with pending charges. The effect of expungement is the same for juvenile adjudication records and for conviction records.
3. Non-conviction records (including deferred adjudication)
The Superior Court must, “upon application,” expunge most non-conviction records at the time of disposition:
When a person has been arrested or held to answer for a crime, disorderly persons offense, petty disorderly persons offense, or municipal ordinance violation under the laws of this State or of any governmental entity thereof and proceedings against the person were dismissed, the person was acquitted, or the person was discharged without a conviction or finding of guilt, the Superior Court shall, at the time of dismissal, acquittal, or discharge, … upon receipt of an application from the person, order the expungement of all records and information relating to the arrest or charge.
N.J. Stat. Ann. § 2C:52-6(a) (as amended by P.L. 2015 ch. 261) (under the old law, a person was required to file a formal petition for expungement). For municipal court proceedings, the court must, upon request, furnish the person with appropriate documentation to be given to the Superior Court, which must enter an ex parte expungement order upon receipt. § 2C:52-6(a)(3). There is a waiting period of six months for expungement of deferred adjudication records (authorized for minor drug offenses under N.J. Stat. Ann. § 2C:36A-1). § 2C:52-6(c). “An expungement … shall not be ordered where the dismissal, acquittal, or discharge resulted from a plea bargaining agreement involving the conviction of other charges. This bar, however, shall not apply once the conviction is itself expunged.” § 2C:52-6(a)(3); see also § 2C:52-14(c). A person who did not apply for expungement at the time of disposition may petition the Superior Court for expungement “at any time following the disposition of proceedings.” § 2C:52-6(b). Non-conviction records may not be expunged “where the dismissal, discharge, or acquittal resulted from a determination that the person was insane or lacked the mental capacity to commit the crime charged.” § 2C52-6(d). There is no limitation on the number of times non-conviction records may be expunged. § 2C:52-6(a)(5).
The effect of expungement is described in subsection 1, supra.
C. Judicial Certificate of Rehabilitation
N.J. Stat. Ann. § 2A:168A-7 (Rehabilitated Convicted Offenders Act, as amended in 2007) provides that a court at the time of sentencing, or thereafter a supervisory agency, may issue a certificate evidencing rehabilitation “that suspends certain disabilities, forfeitures or bars to employment or professional licensure or certification that apply to persons convicted of criminal offenses.” Disabilities affected include public employment (other than law enforcement and certain other sensitive positions11) and professional/occupational or business licenses (other than law and mortgage origination). A certificate issued pursuant to this act may be limited to one or more enumerated disabilities, forfeitures or bars, or may relieve the subject of all disabilities, forfeitures or bars that may be affected.
“Qualified offender” refers to a person who has one criminal conviction or who has convictions for more than one crime charged in separate counts of one indictment or accusation. Convictions of crimes entered more than 10 years prior to an application for a certificate under this act are not to be considered. Persons convicted of specified serious offenses are not eligible. N.J. Stat. Ann. § 2A:168A-8. While the text of the law is not clear, the applicable process supports the conclusion that those with federal out of state offenses are not eligible for relief, since application must be made either to the sentencing court or to the supervisory authority. Id.
In addition to lifting disabilities, a certificate evidences that “the applicant has achieved a degree of rehabilitation indicating that his engaging in the proposed employment would not be incompatible with the welfare of society,” and “shall preclude a licensing authority from disqualifying or discriminating against the applicant.” N.J. Stat. Ann. § 2A:168A-3. Under 2007 amendments to the RCOA, a certificate relieves bars to public employment as well as licensure, except bars to public employment based upon crimes specified in §§ 2A:168A-7(b), 2A:168A-8(c). See § 43:1-3.1. A certificate issued under the RCOA “is the legislatively-chosen mechanism to ‘relieve disabilities, forfeitures or bars’ to public employment arising from certain prior criminal convictions.” In the Matter of Carluccio, 42 A.3d 918, 927 (N.J. Super. App. Div. 2012)(certificate issued by Parole Board presumptively demonstrated candidate’s rehabilitation for purposes of seeking employment with DMV as safety specialist trainee). Private employers may but are not required to give effect to certificates awarded under the RCOA. § 2A:168A-12.
Conduct may still be taken into account: While an automatic bar may be lifted, the conduct underlying the conviction may still be taken into account. See Hyland v. Kehayas, 157 N.J. Super. 258, 262 (App. Div. 1978) (“[R]espondent’s argument overlooks the fact that the action under review does not involve disqualification or discrimination because of a conviction of crime. The determination by the board consisted of a revocation for misconduct, a standard which does not depend upon a criminal conviction. Hence the provisions of the [RCOA] are inapplicable notwithstanding that the underlying misconduct may have also given rise to a criminal conviction.”). See also Storcella v. Dep’t of Treasury, 296 N.J. Super. 238, 243 (App. Div. 1997), on the other hand, held that N.J.S. 2A:168A-3 does not preclude a licensing authority from contemplating a past conviction in the event of an executive pardon; it merely prohibits the entity from automatically “disqualifying or discriminating against” an applicant on that basis. Difficulties in applying the RCOA also arise from the lack of a statutory standard for determining whether a past offense is relevant to licensure when an applicant presents a certificate of rehabilitation.
It remains to be seen what if any effect the 2007 amendments to the RCOA have in situations where a regulatory scheme includes its own ameliorative provisions authorizing an agency to make exceptions to otherwise applicable disqualifications. See Maietta v. New Jersey Racing Com’n, 93 N.J. 1, 459 A.2d 295, 298 (1983)(contrasting the mandatory disqualification under the horse racing laws with the more flexible “savings provision” under the alcoholic beverages control act that “remove the statutory disqualification in certain instances and thus serve the same purpose as the RCOA”).
A certificate may be issued by the court at sentencing where the sentence does not involve incarceration (and thereafter through a period of supervision) or post-incarceration by the Parole Board, after a three-year eligibility waiting period. Both court and board must find that issuing the certificate will not pose a substantial risk to public safety, and “will assist in the successful reintegration of the offender and is consistent with the public interest.” N.J. Stat. Ann. § 2A:168A-8. The prosecutor must be given notice, § 2A:168A-10, and a certificate may be revoked upon conviction of another crime. § 2A:168A-11.
III. Nondiscrimination in Licensing and Employment
N.J. Stat. Ann. § 2A:168A-1 (1968 Rehabilitated Convicted Offenders Act): “a person shall not be disqualified or discriminated against by any licensing authority because of any conviction for a crime, unless [the crime involves dishonesty in public service] or unless the conviction relates adversely to the occupation, trade, vocation, profession or business for which the license or certificate is sought.” Statute premised on idea that “it is in the public interest to assist the rehabilitation of convicted offenders by removing impediments and restrictions upon their ability to obtain employment or to participate in vocational or educational rehabilitation programs based solely upon the existence of a criminal record.” Id. See also § 45:1-21(f) (licensing boards may suspend or terminate upon proof of conviction involving “moral turpitude” or “relating adversely” to activity regulated by board).
In determining that a conviction “relates adversely” to a particular occupation or trade, a licensing authority is required to explain in writing how the following factors, or any other factors, relate to the license or certificate sought:
- The nature and duties of the occupation, trade, vocation, profession or business, a license or certificate for which the person is applying;
- Nature and seriousness of the crime;
- Circumstances under which the crime occurred;
- Date of the crime;
- Age of the person when the crime was committed;
- Whether the crime was an isolated or repeated incident;
- Social conditions which may have contributed to the crime;
- Any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of persons who have or have had the applicant under their supervision.
Presentation of evidence of pardon or expungement, or certificate of rehabilitation from state or federal parole board, “shall preclude a licensing authority from disqualifying or discriminating against the applicant.” § 2A:168A-3. However, this provision has been interpreted to allow presentation of evidence that “past criminal activity . . . on the very premises for which the license is sought adversely affects upon [the individual’s] moral character.” See Storcella v. State, Dep’t of Treasury, 686 A.2d 789, 792 (N.J. Super. Ct. App. Div. 1997), cert. denied, 693 A.2d 110 (N.J. 1997) (“It was not arbitrary, capricious, or unreasonable for the Lottery Director to conclude that Storcella’s past criminal activity in conducting a bookmaking operation on the very premises for which the license is sought adversely reflects upon his moral character and will directly affect the public perception of the integrity of the Lottery.”); and compare Maietta v. New Jersey Racing Comm’n, 459 A.2d 295, 300 (N.J. 1983) (applicant for groom’s license who had previously worked as a groom, who had been convicted five years before of drug offenses in which he was found to be a minor participant, who had not otherwise been engaged in criminal conduct, and who presented overwhelming evidence of rehabilitation, was improperly denied license) with Verrone v. New Jersey Racing Comm’n, 92 N.J.A.R.2d (RAC) 16 (N.J. Admin. 1992) (convictions for race-fixing precluded grant of assistant trainer license where convictions involved deliberate, planned scheme conducted over period of time and involving other participants as part of larger scheme to subvert integrity of racing in New Jersey, and there was no showing of rehabilitation.).
Conviction for health care claims fraud or insurance fraud: first offense requires suspension for one year, and second offense requires permanent disqualification from licensure “unless the court finds that such license forfeiture would be a serious injustice which overrides the need to deter such conduct by others and in such case the court shall determine an appropriate period of license suspension which shall be for a period of not less than one year.” § 2C:51-5(a).
Law enforcement agencies are exempt by statute. § 2A:168A-6. Alcoholic Beverages Commission is exempt not only for this reason, but “because of the unique status of the alcoholic beverage industry and Legislature’s special treatment of it.” Matter of C. Schmidt & Sons, Inc., 399 A.2d 637, 642 (N.J. 1979). In Maietta v. Racing Commission, supra, the Court added as an additional distinguishing reason justifying its holding in Schmidt the fact that the scheme contains discretionary relief provisions. 459 A. 2d at 298.
B. Opportunity to Compete Law
(Ban-the-Box and Limitations on Consideration of Criminal Record): Effective March 15, 2015, the Opportunity to Compete Law (A1999) requires most public and private employers with more than 15 employees (over a minimum of twenty calendar weeks) to delay inquiry into criminal history until after the first interview. The law carves out exceptions, including but not limited to jobs in law enforcement and the judiciary, jobs for which criminal checks are required by law, and jobs for which lack of prior record is required for licensing or similar purposes. Beyond those narrow exclusions, employers face significant financial penalties for violating the law.12
Employers may not “knowingly or purposefully publish, or cause to be published, any advertisement that solicits applicants for employment where that advertisement explicitly provides that the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses.” This restriction on the content of employment applications does not apply to any advertisement that solicits applicants for positions in law enforcement, corrections, the judiciary, homeland security, or emergency management, or any other position where a criminal history record background check is required by law, where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by law, or where any law restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees. – See more at: http://www.littler.com/publication-press/publication/new-jerseys-opportunity-compete-act-continues-nationwide-ban-box-trend#sthash.s9LB4cKd.dpuf.
Several New Jersey municipalities (Newark, Atlantic City) have adopted ban-the-box provisions, but these will be superseded effective March 15, 2015, as a result of the new law. This includes Newark’s law, one of the broadest in the nation, applying to private as well as public employment, licensing, and housing, and limiting the kinds of criminal records that could be considered.13
C. Certificate of Rehabilitation
Under 2007 amendments to the RCOA statute, a “certificate of rehabilitation” issued under N.J. Stat. § 2A:168A-7 is effective to remove bars to public employment, with certain exceptions: “Public employment” shall mean employment by a State, county, or municipal agency, but shall not include elected office, or employment in law enforcement, corrections, the judiciary, in a position related to homeland security or emergency management, or any position that has access to sensitive information that could threaten the public health, welfare, or safety.” § 2A:168A-7(c)(1). See discussion of certificates of rehabilitation in Part IIC.
The so-called “Forfeiture Act” provides that conviction of any crime involving dishonesty or “of a crime of the third degree or above” while employed by the government results in forfeiture of office and disqualification from all public employment. § 2C:51-2(a)(1). If the crime is one “involving or touching such office, position or employment,” the disqualification is “permanent.” § 2C:51-2(d). See Pastore v. Cnty. of Essex, 568 A.2d 81, 86 (N.J. Sup. Ct. App. Div. 1989), cert. denied, 584 A.2d 205 (N.J. 1990) (forfeiture statute bars from public employment Essex County golf course greens superintendent previously convicted of forgery and misappropriation of public funds); see also Cedeno v. Montclair State Univ., 750 A.2d 73, 75 (N.J. 2000) (university purchasing officer previously convicted of bribery could not recover in age discrimination suit, even though university did not discover conviction until after termination).
In 2007, § 2C:51-2(d) was amended to make clear that “involving or touching on his public office, position or employment” means that the offense was “related directly to the person’s performance in, or circumstances flowing from, the specific public office, position or employment held by the person.” This definition “signals strongly that the disqualification provision was intended to be contingent on a conclusion that the conviction was related, directly and specifically, to the position held.” State v. Hupka, 1 A.3d 640, 647 (N.J. 2010) (permanent forfeiture not warranted where off-duty sheriff engaged in sexual intercourse with a woman without her consent at his apartment). Nevertheless, the application of the definition is not always entirely clear. See id. (noting there is some ambiguity in the statute); see also State v. Blessing, No. A-1306-10T1, 2011 WL 5244964, *5-6 (N.J. Super. Ct. App. Div. Nov. 4, 2011) (swim coach at parochial school who developed sexual relationship with swim team member did not forfeit teaching position at unrelated public school).
Consequence of failure to notify about forfeiture
N.J. Stat. § 2C:51-2(g) provides that “[i]n any case in which the issue of forfeiture is not raised in a court of this State at the time of a finding of guilt, entry of guilty plea or sentencing, a forfeiture of public office, position or employment required by this section may be ordered by a court of this State upon application of the county prosecutor or the Attorney General or upon application of the public officer or public entity having authority to remove the person convicted from his public office, position or employment. The fact that a court has declined to order forfeiture shall not preclude the public officer or public entity having authority to remove the person convicted from seeking to remove or suspend the person from his office, position or employment on the ground that the conduct giving rise to the conviction demonstrates that the person is unfit to hold the office, position or employment.”
Relief from “permanent” disqualification from employment under N.J. Stat. § 2C:51-2(d) may be provided through a gubernatorial pardon or, in some cases, a Certificate of Rehabilitation. See § 2A:168A-8(c)(e); Part IIC, supra.
A person convicted while in office of specified crimes involving fraud or public corruption forfeits pension benefits if the crime involved or touched their office. N.J. Stat. § 43:1-3.1 As used in these sections, a crime or offense that “involves or touches such office, position or employment” means that the crime or offense was “related directly to the person’s performance in, or circumstances flowing from, the specific public office or employment held by the person.” § 2C:51-2(d); § 43:1-3.1.
See Part I for provisions barring public employees convicted of misconduct in office from public contracts for a specified period of time. N.J. Stat. Ann. § 2C:51-2(f).
- Article 2, section I, paragraph 7 of the New Jersey Constitution provides that “The Legislature may pass laws to deprive persons of the right of suffrage who shall be convicted of such crimes as it may designate. Any person so deprived, when pardoned or otherwise restored by law to the right of suffrage, shall again enjoy that right.” In 1979, New Jersey abandoned the classification of crimes as felonies, high misdemeanors, misdemeanors, and disorderly persons, and re-defined all non-capital offenses as either “crimes” or disorderly persons offenses. All “crimes” carry with them the right to be indicted by a grand jury and to trial by jury, and thus result in loss of civil rights.
- An unpublished Appellate Division decision states that individuals who are subject to “community supervision for life” are disenfranchised as if on parole. Hunt v. Supervision of Elections, No. L-7371-05, 2005 WL 2978737 (N.J. Sup. Ct. Nov. 7, 2005).
- Under the 1844 Constitution, a court of pardons consisting of the Governor, the Chancellor, and six judges of the court of appeals, had authority to issue pardons.See In re Court of Pardons, 129 A. 624, 627 (N.J. Pardons 1925). The power was placed with the Governor alone in the 1947 Constitution.
- See John Munson, Christie issues 6th gun pardon of 2015, his one for a Marine recruiter in N.H., NJ.com, http://www.nj.com/politics/index.ssf/2015/12/christie_issues_sixth_gun_pardon_of_2015for_nh_man.html (Dec. 23, 2015); Salvador Rizzo, Christie pardons reformed drug addict from Philadelphia, NorthJersey.com, http://www.northjersey.com/news/christie-pardons-reformed-drug-addict-from-philadelphia-1.1462500 (Nov. 25, 2015). In the midst of his campaign for president in 2015, Gov. Christie “vowed to pardon those out-of-state residents who became unwittingly ensnared in New Jersey’s tough gun transport laws.” Id.
- The guide states:
If you are a low-income New Jersey resident, you may be eligible for legal help from a Legal Services office in your area. You may also be eligible for free legal advice from LSNJ-LAW™, Legal Services of New Jersey’s statewide, toll-free legal hotline. The hotline telephone number is 1-888-LSNJ-LAW (1-888-576-5529) or 732-572-9100 if you are calling from outside New Jersey. Hotline hours are Monday through Friday, 8 a.m. to 5:30 p.m. If you are eligible, the hotline can help you through the expungement process. If you are not eligible for assistance from Legal Services, the hotline will refer you to other possible resources.
- “In determining whether compelling circumstances exist . . . a court may consider the amount of the fine or fines imposed, the person’s age at the time of the offense, the person’s financial condition and other relevant circumstances regarding the person’s ability to pay.” N.J. Stat. Ann. § 2C:52-2(a).
- Prior to March 13, 2010, expungement was not permitted in drug cases except those for minor marijuana and hashish possession. Now expungement is permitted for grade 3 or 4 drug offenses, “where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction.” N.J. Stat. Ann. § 2C:52-2(c)(3).
- Disorderly persons convictions can be expunged under separate expungement authority. See N.J. Stat. Ann. § 2C:52-3 (described infra). However, since conviction for an indictable offense bars expungement under that authority, see § 2C:52-3(a), (b), and expungement of a prior offense is a bar to expungement of subsequent offenses, see § 2C:52-14(e), there was no way to expunge both indictable offenses and disorderly persons offenses prior to the 2016 amendment.
- In G.D. v. Kenny, 15 A.3d 300, 304 (N.J. 2011), an individual argued that his conviction of drug charges “was expunged,” that “therefore, his conviction…is deemed not have occurred,” and thus a political rival’s reference to his prior conviction was defamatory. The New Jersey Supreme Court disagreed, holding that “the expungement statute does not obliterate the record of conviction,” and that the “defense of truth to a defamation action was not lost” because of the expungement order.” Id. at 313-15.
- The N.J. drug court program encourages treatment and rehabilitation of substance abusers by sentencing eligible persons to a term of special probation in lieu of incarceration.
- Except elected office, law enforcement, corrections, the judiciary, homeland security or emergency management, or “any position that has access to sensitive information that could threaten the public health, welfare, or safety.” See also § 2A:168A-6 (“This act shall not be applicable to any law enforcement agency; however, nothing herein shall preclude a law enforcement agency in its discretion from adopting the policies and procedures set forth herein.”). In In re Schmidt, 79N.J. 344, 399 A.2d 637 (1979), the New Jersey Supreme Court held that the Alcoholic Beverages Control Board was a law enforcement agency and hence exempt from the limiting provisions of the RCOA. The court denied similar treatment to the New Jersey Racing Commission. See Maietta v. New Jersey Racing Com’n, 93 N.J. 1, 459 A.2d 295, 300 (1983). In Maietta the Court also distinguished the regulatory scheme at issue in Schmidt as involving “certain ‘savings’ provisions that . . . . remove the statutory disqualification in certain instances and thus serve the same purpose as the RCOA.” 459 A. 2d at 298.
- Last-minute amendments to the law omitted a provision delaying consideration of criminal record until after an offer of employment was made, and prohibiting consideration of certain records, including non-conviction records, expunged convictions, and juvenile adjudications. Covered employers would also have been prohibited from considering most felony convictions after ten years, and disorderly offenses for five years. Other provisions were omitted giving an employer guidance in evaluating a criminal record, including the extent of the individual’s rehabilitation, time elapsed since conviction, and the responsibilities of the job. Also, gone was a provisions requiring an employer taking adverse action based upon conviction, to “certify in writing its reasonable consideration of the factors set forth in subsection a. of this section.” Under the Section 9 that was omitted,
an employer who has any questions or concerns relating to the candidate’s criminal history and suitability for the position sought or held based on a criminal history inquiry shall make a good faith effort to discuss with the candidate these questions or concerns and provide the candidate with an opportunity to explain and contextualize any crime or offense, provide evidence of rehabilitation, and rebut any inaccuracies in the criminal history.
- The Newark law, superseded as of March 15, 2015, delayed inquiry into an applicant’s criminal history until a conditional offer of employment is made by the employer, and imposed a limited “lookback” period for offenses, ranging from eight years for indictable offenses and five years for disorderly persons convictions or municipal ordinance convictions. Several other components of the soon-to-be-superseded ordinance stand out, including: a prohibition on advertisements that limit eligibility based on the criminal record; an enforcement provision with fines for violations; and detailed mandated notices to denied applicants. See Ordinance #12-1630 (Sept. 19, 2012).