Restoration of Rights & Record Relief
Last updated: December 6, 2022
I. Loss & restoration of civil/firearms rights
A. Vote & jury
In 2019, HR5823 modified the period of disenfranchisement as a result of conviction of “any indictable offense” to a period of actual incarceration. N.J. Stat. Ann. § 19:4-1(8). Previously, the right to vote was lost while serving a sentence for an indictable offense, including a period of probation or parole. Similarly, HR5823 limited a court’s authority to impose disenfranchisement as punishment for a criminal violation of election laws or voting fraud to a period of incarceration, leaving intact a provision for restoration by a pardon. See §§ 19:4-1(6), (7); 19:34-46. An “indictable offense” includes all crimes but not petty offenses. N.J. Stat. Ann. §§ 2C:51-3(a) and (b), 2C:1-4(b) (“petty offenses . . . are not crimes within the meaning of the Constitution of this State”).1
The right to serve on a jury is lost upon conviction for “any indictable offense.” § 2B:20-1(e). Jury eligibility is restored only by pardon or gubernatorial restoration of rights under § 2A:167-5.
B. Public office & 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.
A court may also disqualify a person from holding office as a result of a conviction for election law violation. N.J. Stat. Ann. § 19:34-46.
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 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. Pardon policy & practice
The power to pardon is vested in the Governor, except in cases of treason and impeachment. N.J. Const. art. V, § 2, ¶ 1.2 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). In 2021, the New Jersey Supreme Court ruled that a person whose two prior convictions had been pardoned was eligible for expungement despite the statutory bar on expunging multiple felony convictions, since the pardon removed the statutory bar based on the prior conviction, making the recipient eligible for consideration in the court’s discretion. See In re Petition for Expungement of the Criminal Record Belonging to T.O. (A-55-19) (084009) (January 11, 2021); see also In re L.B., 848 A.2d 899, 907 (N.J. Super. Ct. Law Div. 2004). However, this does not mean that courts have inherent authority to expunge a pardoned conviction, only that a pardon removes bars to statutory eligibility.
E. 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 the end of his term in January 2019, Gov. Christie had granted 52 pardons, six to out-of-state residents convicted under New Jersey firearms laws.3 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.
III. Expungement, sealing & other record relief
New Jersey’s expungement laws were substantially revised in December 2019 by S4154, enacted as P.L. 2019, ch. 269, which expanded eligibility criteria, established a new “clean slate” automated process to be developed under the direction of a task force, created an e-filing system for expungements, and eliminated expungement filing fees.4. Prior to the 2019 law, whose substantive provisions are effective June 2020, New Jersey’s expungement law had been significantly amended in December of 2017 to reduce waiting periods and raise the cap on the number of convictions that may be expunged in a lifetime. See S-3307 (2017) (effective October 1, 2018). As revised by the 2019 law, expungement is defined to mean “the extraction, sealing, impounding, or 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.” N.J. Stat. Ann. § 2C:52-1. See also In re D.H., 6 A.3d 421, 427 (N.J. 2009) (“[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.”)
Backlogs in petition-based filings at the State Police and delays in implementing the automated process are detailed in this article: Amanda Hoover, Why It’s Still So Hard to Wipe Away a Record Despite the Law that Murphy Signed, NJ.com, April 25, 2021, https://www.nj.com/crime/2021/04/why-its-still-so-hard-to-wipe-away-a-criminal-record-despite-promise-of-law-murphy-signed.html.
A. Expungement of convictions by petition
Expungement of conviction records is available for a single “indictable offense” (equivalent to felonies in other jurisdictions), “disorderly persons offenses” (misdemeanors), “petty disorderly persons” offenses, and municipal offenses. Different waiting periods apply depending on the type of offense and number of convictions, with eligibility criteria modified to expand relief on three separate occasions since 2015. Certain features of the law have not changed: E.g., An application for expungement of indictable or disorderly/petty disorderly persons offenses may be granted only once in a person’s lifetime. N.J. Stat. Ann. § 2C:52-14(e). While only a single expungement may be granted in a lifetime, an application by petition may seek expungement of up to four separate convictions, only one of which may be an indictable offense. §§ 2C:52-2(a), -3(b). (The general cap on the number of petitions was raised from three to four in 2019.) Exceptions to the cap may apply for convictions that are closely related, entered on the same day, or part of the same judgement.
As amended in 2019, the law no longer counts prior convictions as a bar to eligibility, although subsequent convictions still do. See § 2C:52-2(a).
The New Jersey Supreme Court held that a pardon dissolved the statutory bar to expungement of more than one felony, making the recipient eligible for consideration in the court’s discretion. See In re Petition for Expungement of the Criminal Record Belonging to T.O (A-55-19) (084009) (January 11, 2021). In addition, 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 below.
What follows is a description of the application by petition process. (The clean slate automatic process is described in subsection B.)
Application by petition
Eligibility – offenses
Indictable offenses (felonies)
Expungement of indictable offenses is governed by N.J. Stat. Ann. § 2C:52-2, as amended in 2019. Expungement may only be granted for a single indictable offense in a person’s lifetime unless the convictions were part of the same judgment or were “interdependent or closely related.” § 2C:52-14(e). 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).5
Under the 2017 legislation, up to three disorderly/petty disorderly persons offense petitions may be appended to a petition for an indictable offense. Prior to the 2015 legislation, there was no way for an individual to expunge a combination of indictable and disorderly/petty disorderly persons offenses.6 If additional petitions are appended, the waiting period for all offenses is “five years from the date of [the] most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration.” N.J. Stat. § 2C-52:2(a).
Persons convicted at any time of more than one indictable offense are ineligible for expungement under this authority (but see discussion of “clean slate” sealing below. N.J. Stat. § 2C-52:2(a). But see In re Petition for Expungement of the Criminal Record Belonging to T.O.
(A-55-19) (084009) (Sup. Ct., Jan.11, 2021)(a pardon dissolved the statutory bar to expungement of more than one felony, making the recipient eligible for consideration in the court’s discretion).
Interdependent or closely related indictable offenses: There is no cap on the number of indictable offenses (or combination of indictable and disorderly/disorderly persons offenses) that may be expunged if the convictions were entered in a single judgement or were “interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time.” N.J. Stat. Ann. § 2C:52-2(a) (as amended by S-3307, § 1 (2017)). However, this authority is an alternative to the general “capped” authority, so individuals granted expungement under it are ineligible for expungement of additional convictions in the future. Under the 2019 law, prior convictions for which expungement is NOT sought no longer stand as a bar to eligibility.
Disorderly persons & petty disorderly persons offenses
Expungement of disorderly/petty disorderly persons offenses is governed by N.J. Stat. Ann. § 2C:52-3. Up to three convictions for disorderly persons/petty disorderly persons offenses may be expunged in a person’s lifetime, unless the convictions were entered on the same day or were “interdependent or closely related” (see below). § 2C:52-3(b). Effective October 1, 2018, the cap was raised to four convictions. S-3307, § 2 (2017). A separate petition must be filed for each offense.
Expungement of disorderly/petty disorderly persons offenses under § 2C:52-3 is unavailable if a person has at any time been convicted of an indictable offense or more than three disorderly/petty disorderly persons offenses (raised to four effective October 1, 2018). N.J. Stat. § 2C:52-2(a); S-3307, § 2 (2017).
Although expungement under § 2C:52-3 is not available to a person that has been convicted of an indictable offense, such persons may, pursuant to § 2C:52-2, petition for expungement of disorderly/petty disorderly persons offenses at the same time they petition for expungement of an indictable offense. This process is described in the preceding section.
Disorderly convictions entered on the same day, and interdependent or closely related offenses: Effective October 1, 2018, there will be no cap on the number of disorderly/disorderly persons offenses that may be expunged if the convictions were entered on the same day, or were “interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time.” N.J. Stat. Ann. § 2C:52-3(b) (as amended by S-3307, § 2 (2017)). However, this authority is an alternative to the general “capped” authority, so individuals granted expungement under it are ineligible for expungement of additional convictions in the future. Eligibility is limited to those with no convictions other than those for which expungement is sought. Id.
Waiting period and payment of court debt
For both indictable and petty offenses the rules are the same: “The person, if eligible, may present the expungement application after the expiration of a period of five years from the date of his most recent conviction, payment of any court-ordered financial assessment, satisfactory completion of probation or parole, or release from incarceration, whichever is later. The term ‘court-ordered financial assessment’ as used herein and throughout this section means and includes any fine, fee, penalty, restitution, and other form of financial assessment imposed by the court as part of the sentence for the conviction or convictions that are the subject of the application . . . ” §§ 2C:52-2(a), 2C:52-3(b).7 The 2019 law also provided for conversion of unpaid court-ordered financial assessments to civil judgments, and/or waiver where all requirements but payment of court debt are satisfied and “the court finds that the person substantially complied with [a fine payment plan], or could not do so due to compelling circumstances ….” N.J. Stat. Ann. § 2C:52-2(a)(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 or offenses, the person’s financial condition and other relevant circumstances regarding the person’s ability to pay.” N.J. Stat. Ann. § 2C:52-2(a).A court may in its discretion entertain an expungement motion after three years if it finds that a person has had no subsequent convictions and that “compelling circumstances exist to grant the expungement.“§ 2C:52-2(a)(2).8
A pardon has been held by the New Jersey courts to dissolve statutory bars to expungement, making the recipient eligible for consideration in the court’s discretion. See In re Petition for Expungement of the Criminal Record Belonging to T.O. (A-55-19) (084009) (January 11, 2021); In re L.B., 848 A.2d 899, 907 (N.J. Super. Ct. Law Div. 2004). However, this does not mean that courts have inherent authority to expunge a pardoned conviction, only that a pardon removes bars to statutory eligibility.
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.
Marijuana and hashish offenses – N.J. Stat. Ann. § 2C:52-4
Under the 2019 law, specified indictable marijuana and hashish convictions and adjudications are, for the purposes of expungement, either considered disorderly offenses or made non-criminal, depending upon the amount of the drug involved. N.J. Stat. Ann. §§ 2C:52-2(a) and 2C:52-3(b). See also discussion below on “clean slate” marijuana expungement.
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
A prior expungement may bar eligibility unless seeking expungement for a municipal offense. N.J. Stat. § 2C:52-14(e). Section 7(a) of the 2019 law repeals this bar for “clean slate” expungement.[note] A prior bar for those who had been granted dismissal of charges following completion of a supervisory treatment or diversion program, was repealed under the 2017 law. § 2C:52-14(f).[/note]. Persons with pending charges are ineligible for expungement. N.J. Stat. § 2C:52-13.
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), and further explained in the Expungement Packet prepared by the Administrative Office of Courts mentioned at the beginning of this section.
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. The petition and supporting documents must be served on 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:52-10. “Service shall be made within 5 days from the date of the order setting the date for the hearing upon the matter.” Id. 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. Grounds for denial of expungement are set forth in § 2C:52-14, and they include statutory ineligibility, prior expungement, or absence of records. If expungement is granted, all the records specified shall be removed from the files of the agencies which were entitled to notice pursuant to § 2C:52-10.9
The county prosecutor has the burden of verifying the petition and bringing to the court’s attention any information that may bar expungement or make relief 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.
E-Filing system: The 2019 legislation directed the Administrative Office of the Courts to develop an e-filing system within 12 months of the law’s effective date, which accomplishes automatically all of the document production and service requirements in connection with the petition-based expungement process, thus eliminating another substantial barrier to access. See Akil Roper, New Jersey Launches Electronic Filing System for Expungements, CCRC (Jan. 28, 2021), https://ccresourcecenter.org/2021/01/28/new-jersey-launches-electronic-filing-system-for-expungements/.
The 2021 legislation also directed the courts to provide more information and launch a multilingual public awareness campaign about expungements in general, particularly the 2019 reforms. C.2B:1–14
The 2019 law repealed the requirement of a separate filing fee for expungements. Cf. Expungement Packet, supra. Prior to 2019, there was no filing fee for successful graduates from drug court, identity theft and human trafficking victims, and in non-conviction cases. Also, court fees could be waived for indigence, including for those represented by legal services and other eligible entities representing indigents.
There are some associated costs which cannot be waived for those seeking expungement. In most cases, expungement petitions and orders must be served on a number of parties by certified mail, by the petitioner, return receipt requested. If there are ten parties for example, that is over $50 — more if one or more amended petitions are required. And for those seeking relief under “public interest” provisions, petitioners must pay for transcripts of plea and sentencing hearings and for those, a deposit of up to $300 may be required. (This will be eliminated by the e-filing system described above.)
Applicants for expungement are not required to satisfy all related fines imposed at time of sentencing in order to be eligible for relief, as long as they are on a court-ordered payment plan.
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
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 . . . .
N.J. Stat. Ann. § 2C:52-27; see also § 2C:52-1(a), as amended by the 2019 law described above, (“expungement shall mean the extraction, sealing, and impounding or 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:43-8.10 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).
B. Automatic sealing & expungement of convictions
Clean Slate cases
Section 8 of the 2019 law directs the State to develop and implement a “clean slate” provision, effective in mid-June 2020, by which “all convictions” (except certain ineligible crimes) will be automatically made “inaccessible to the public” by “sealing, expungement, or some equivalent process.” Eligibility occurs “upon the expiration of a period of ten years from the date of the person’s most recent conviction, payment of any court-ordered financial assessment, satisfactory completion of probation or parole, or release from incarceration, whichever is later.” Payment of any “court-ordered financial assessment,” including restitution, may be waived by the expungement court by reducing the amount owed to a civil judgment. Most serious and violent offenses, and serious drug offenses are ineligible for “clean slate” expungement, as are offenses committed by public officials and employees that “touched” the public office or position. §§ 2C:52-2(b) & (c).
A task force was established to implement the automated features of the new law. Pending that implementation, and as an interim measure, Section 7 of the 2019 law provides that individuals eligible for relief under the “clean slate” provision may petition the court for relief beginning in June 2020. If the person is determined by the court to be eligible, expungement is mandatory. The provision applicable to petition-based expungement that makes a prior expungement disqualifying does not apply to “clean slate” expungement. See Section 7(a). While the petition-based “clean slate” expungement will go into effect in June 2020, there is no deadline for implementation of the automated system authorized by the law, but an e-filing system has been implemented in the interim (see description above).
Automatic expungement and vacatur of remaining sentences: Section 6 of the 2019 law (further amended by the 2021 law) directed the development, within three months of the law’s effective date, of an automatic system for sealing records from the public (“by operation of law”) for specified indictable and disorderly marijuana or hashish offenses. §§ 2C:52-5.2, 2C:52-6.1. Eligible offenses include possession of six ounces or less of marijuana, § 2C:52-10; or manufacture, distribution, or possession with intent to distribute 1 ounce or less of marijuana or 5 grams of hashish (including if charged as being within 1,000 feet of a school or 500 feet of a public building). § 2C:52-5. (Sealing of offenses of manufacturing, dispensing, and possession with intent to manufacture or dispense were added by a 2021 law.) If a financial assessment is unpaid at the time of sealing, the court shall convert the unpaid portion to a civil judgement. In the interim, Section 5 authorizes courts upon petition to seal the record immediately upon completion of sentence. § 2C:52-5.1.
On September 16, 2021, the New Jersey courts reported that 362,000 marijuana convictions had been expunged since the decriminalization law became effective on July 1.
C. Diversion and deferred adjudication programs
Pretrial intervention: is authorized under § 2C:43-12 et seq. to “provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct.” § 2C:43-12(a)(2). After the filing of a criminal complaint, with the consent of the prosecutor, the judge may postpone all further proceedings and refer applicant to a program of supervisory treatment approved by the Supreme Court. Individuals are ineligible if they previously participated in specified statutory diversion programs. Presumption of exclusion for a defendant who was a public officer or employee charged with an offense related to their position, an offense involving violence, or a defendant charged with domestic violence and the offense was committed while in violation of a restraining order or involved violence or threat of violence.
Conditional dismissal: is authorized by §2C:43-13.1 et seq., and is available to those charged with petty disorderly offenses or disorderly persons offenses.
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).11 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).
In 2022, the range of offenses eligible for expungement upon successful discharge from drug court was expanded by A4771.
D. Victims of human trafficking
In 2013, New Jersey enacted the Human Trafficking Prevention, Protection, and Treatment Act, which provided that a victim of human trafficking convicted of prostitution or a related offense could file a petition for vacatur at any time after conviction, and seek expungement of the record at the same time. N.J. Stat. Ann. § 2C:44-1.1(a).
In 2022, the state expanded the 2013 law to extend expungement to convictions of all but serious violent offenses if the “offense was committed as a result of the trafficking scheme or other course of conduct … that resulted in the person’s victimization, or committed at the direction” of someone engaged in human trafficking. A. 5322 (2022), amending § 2C:44-1.1(a). (As originally enacted, the law applied to persons whose “participation in the offense was a result of having been a victim of human trafficking.”)
The applicant must serve the application and all supporting documents on the Attorney General, the Superintendent of the State Police, the county prosecutor, and head of the police department where the offense was committed, the correctional institution in which the movant was confined, and the judge. The 2022 law repealed a provision in the 2013 law that provided for any of the noticed parties to make an appearance or file a submission responding to the application. A noticed party may still file an objection, but it “shall not be deemed determinative, and the court may grant relief over any party’s objection.” § 2C:44-1.1(b)(1)(b).
The 2022 law also provides that when one of the convictions sought to be vacated is particularly serious, victims of the crime shall be given an opportunity to submit a victim impact statement to the court. § 2C:44-1.1(b)(1)(c). Prosecutors have the burden of notifying victims but can waive this responsibility “when the victim was the trafficker or the notification could endanger the petitioner.” Id.
An expungement granted under this section has the same effect as an expungement granted under § 2C:52-1 et seq. (see Section A, above).
E. Non-conviction records
The Superior Court must, “at the time of disposition“ of a case, automatically expunge most non-conviction records:
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, … order the expungement of all records and information relating to the arrest or charge.
N.J. Stat. Ann. § 2C:52-6(a)(1). The 2019 law deleted a requirement in this section that the defendant make application before the court may act. A similar automatic expungement provision applies to municipal court proceedings, with a petition requirement omitted by the 2019 law. § 2C:52-6(a). There is a waiting period of six months for expungement of deferred adjudication records (see above authorized for minor drug offenses under N.J. Stat. Ann. § 2C:36A-1. and for others). § 2C:52-6(c). Non-convicted charges in a conviction case may not be expunged unless and until the conviction itself is eligible for expungement: “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.
F. Juvenile adjudications
N.J. Stat. Ann. § 2C:52-4.1(b) provides for expungement of juvenile adjudication records after a three-year waiting period,12 as follows:
[A]ny person who has been adjudged a juvenile delinquent may have his entire record of delinquency adjudications expunged if:
(1) Three years have elapsed since the final discharge of the person from legal custody or supervision or 3 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 three-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 3 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 three-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).
Procedures: 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 subsequent 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 (discussed in subsection 1, supra).
G. Certificate of Rehabilitation
N.J. Stat. Ann. § 2A:168A-1 et seq. (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 positions13) and professional/occupational or business licenses (other than law and mortgage loan origination and residential mortgage lender licenses). 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.
A certificate may be awarded by the court at sentencing if the person has only one conviction and is not sentenced to prison, or by the supervisory authority if a person is sentenced to prison three years after completion of supervision if no crimes intervene. “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 in determining whether a person has one criminal conviction. Persons convicted of specified serious offenses are not eligible. N.J. Stat. Ann. § 2A:168A-8.
The text of the law is not clear whether federal or out-of-state offenses may be eligible for relief, but it is significant that a similar certificate scheme in neighboring New York is open to anyone living or doing business in New York, wherever their conviction may have been obtained.
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.
IV. Criminal record in employment, licensing & housing
N.J. Stat. Ann. § 2A:168A-1 (1968 Rehabilitated Convicted Offenders Act) provides that 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.” 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:
1. The nature and duties of the occupation, trade, vocation, profession or business, a license or certificate for which the person is applying;
2. Nature and seriousness of the crime;
3. Circumstances under which the crime occurred;
4. Date of the crime;
5. Age of the person when the crime was committed;
6. Whether the crime was an isolated or repeated incident;
7. Social conditions which may have contributed to the crime;
8. 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.
Until 2021, N.J. Stat. Ann. § 45:1-21 governing licensure of the dozens of state licensing boards enumerated in § 45:1-15 (most health-related licenses, accountants, architects, engineers, cosmetology, and many others) provided consistent with the above statute that boards may deny or suspend licensure upon conviction “of a crime of involving moral turpitude or relating adversely” to the regulated occupation. However, this provision was amended in May 2021 by P.L.2021, c.81 [S942] to modify the standard for denial or suspension of licensure by these state licensing agencies to “a direct or substantial relationship to the activity regulated by the board or is of a nature such that certification, registration or licensure of the person would be inconsistent with the public’s health, safety, or welfare . . . .” In making this determination, a licensing agency “shall consider” (1) the nature and seriousness of the crime or offense and the passage of time since its commission; (2) the relationship of the crime or offense to the purposes of regulating the profession or occupation regulated; (3) any evidence of rehabilitation; and (4) the relationship of the crime or offense to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the regulated profession or occupation. Presumably, this more demanding “direct and substantial relationship” standard governs the dozens of very significant boards to which it applies. However, the bill also precludes granting a license to “an individual who has, within the five years of preceding the submission of an application for a certificate, registration or license, been convicted of embezzlement, fraud, crimes involving public corruption, or theft” and for individuals convicted of murder or particular sex offenses, it creates “a rebuttable presumption that the crime or offense has a direct or substantial relationship to the activity regulated by the board.”
Under pre-existing law, presentation of evidence of pardon or expungement, or certificate of rehabilitation from sentencing court or parole board, “shall preclude a licensing authority from disqualifying or discriminating against the applicant.” § 2A:168A-3. However, this provision assumes that expungements must be disclosed during the licensing process, and it 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.”14
The 2021 amendments require licensing boards to provide individuals denied based on their record with written reasons for an adverse determination,, and “an opportunity to be heard no later than 30 days after receiving notice of a potential disqualification.” It also requires “that the Director of the Division of Consumer Affairs … obtain data concerning the number of, and reasons for, disqualification by any board, and submit a report to the Legislature.”
Conviction for health care 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.
In October 2021, the New Jersey Advisory Committee to the U.S. Civil Rights Commission issued a report concluding that even after passage of the 2021 law, “many barriers still exist, including prolonged training requirements, costly fees, and inadequate employment protections, some, or all, of which could, potentially, be addressed in clean-up legislation.” The Committee recommended waiver of licensing fees, and implementation of a preliminary review procedure that would preclude an individual who has received costly and time-consuming training from later being denied licensing. It recommended that the Opportunity to Compete Law (see below) be amended to prohibit consideration of non-conviction records, and that provisions “allowing expunged convictions to be considered in making employment decisions with respect to any job in the judiciary, law enforcement, and corrections be revisited to determine whether there might be some positions in those areas in which expungements should be dispositive and allow full consideration of an employment application.” Finally, it recommended that the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5–12, be modified to prohibit discrimination based upon an applicant’s criminal history unless there is a substantial relationship between the conviction and the type of employment sought.
B. Opportunity to Compete Law
Ban-the-Box and limitations on consideration of criminal records in in employment 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. N.J. Stat. § 34:6B-14. 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.15
In December 2017, the law was amended to explicitly prohibit inquiries into expunged records during the application process and to clarify that the law covers online applications in addition to oral and written inquiries. See S3306 (2017). However, the law does not prohibit consideration of non-conviction records that have not been expunged, as noted in the report of the NJ Advisory Committee quoted in the preceding section.
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.” § 34:6B-15. 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.16
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.
D. Forfeiture Act
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). See Part IIC, supra. Expungement ordinarily relieves the bar to public office applicable to those convicted while holding public office or employment, but it is not sufficient to overcome the mandatory and permanent bar to public employment for an offense committed in office that “involves or touches on” the office or employment under the Forfeiture Act. See In re D.H., 6 A.3d 421, 430-32 (N.J. 2009).
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).
On June 18, 2021, Governor Phil Murphy signed the Fair Chance in Housing Act (S250). The law, effective on the first day of the seventh month following enactment, will apply to all rental housing providers except owner-occupied premises of four units or less. The law prohibits consideration of any criminal record at the initial rental application stage, allows only certain records to be considered after a conditional offer is made, and imposes substantive and procedural standards for withdrawal of a conditional offer. Violations may be sanctioned with up to $10,000 in fines and other compliance measures, civil immunity is provided for landlords from claims based on decisions to rent to individuals with a record, and reporting requirements are included. The law is described in more detail below.
Initial rental application
Under the bill, prior to accepting an application fee, a housing provider must disclose in writing whether they review and consider criminal history and state that an applicant may provide evidence demonstrating inaccuracies with the criminal record, evidence of rehabilitation, and other mitigating factors. Housing providers may not inquire into or ask about a rental applicant’s criminal history prior to making a conditional offer, except they may consider whether an applicant has ever been convicted of manufacturing or producing methamphetamine on the premises of federally assisted housing or is subject to a lifetime sex offender registration requirement (both grounds for exclusion from public housing under federal law).
Records that may be considered
Even after making a conditional rental offer, housing providers may not consider arrests or charges that have not resulted in conviction, expunged convictions, convictions erased through executive pardon, convictions that have been vacated and otherwise legally nullified, juvenile adjudications, and sealed records. Housing providers also may not require an applicant to submit to a drug or alcohol test, or request consent to obtain information from a drug treatment facility. After a conditional offer, the following records may be considered: convictions for certain listed violent and sex offenses; a pending indictable offense (felony); a conviction for a fourth degree indictable offense if the prison sentence concluded within the previous year; a conviction for a second or third degree indictable offense if the prison sentence concluded within the previous four years; a conviction for a first degree indictable offense if the prison sentence concluded within the previous six years.
Withdrawal of conditional offer
A housing provider may withdraw a conditional offer based on criminal history only if they determine “by preponderance of the evidence, that the withdrawal is necessary to fulfill a substantial, legitimate, and nondiscriminatory interest.” The reasons must be provided “with specificity” in writing, with an opportunity to appeal by providing evidence of inaccuracies within the record, rehabilitation, or other mitigation. The housing provider must perform an individualized assessment in light of six factors relating to the offense, the applicant, and rental safety. The applicant may request, within 30 days of notice of a withdrawal, a copy of all information relied on in considering the applicant, which must be provided within 10 days of a request, free of charge. As previously noted, the applicant must be given an opportunity to present evidence of inaccuracies in the record relied upon, and of mitigating factors.
The Division of Civil Rights is directed to prepare for housing providers model forms for initial disclosures and notice of withdrawal of a conditional offer, in English, Spanish, and any other language deemed appropriate.
Housing providers may not publish an advertisement that it will not consider an applicant who has been arrested or convicted, except for an applicant convicted of manufacture or production of methamphetamine on the premises of federally assisted housing or is subject to a lifetime sex offender registration requirement.
To encourage landlords to provide housing to formerly incarcerated individuals, landlords subject to the law are immune from civil liability arising for a decision to rent to individuals with a record, except for a person with convictions for specified violent and sex offenses.
An applicant or prospective applicant may file a complaint with the Division of Civil Rights of the Department of Law and Public Safety, which shall make an effort to notify the housing provider and provide 14 days to mediate and address the issue. The division itself may also file complaints, without the requirement of mediation, including for retaliations against a complainant. After an investigation, if the complaint is substantiated, the division “shall” issue monetary penalties of $1,000 to $10,000, depending on whether there are previous violations (up to $1,000 may be assigned to the complainant), and the division may issue other non-monetary remedies, including in some circumstances requiring the provision of the rental unit to the complainant. Final decisions on an investigation may be appealed by the housing provider or complainant.
The law also requires the Division of Civil Rights to collect data on complaints and investigations and to report annually on its website information about substantiated complaints that have resulted in monetary penalties.
- 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.
- 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, this 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.
- An earlier bill was vetoed by the governor because it was insufficiently favorable to those with criminal records, and the bill was subsequently rewritten. See https://www.njspotlight.com/2019/09/19-09-12-lawmakers-rewrite-expungement-bill-after-conditional-veto-from-gov/.
- 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.” § 2C:52-2(c)(3).
- Previously, the authorities for expunging indictable offenses and disorderly/petty disorderly persons offenses were entirely separate; and since expungement may only be granted once in a person’s lifetime, receiving an expungement under one authority barred expungement under the other.
- The waiting period was reduced in 2019 from six years to five years, and in 2017 from ten years to six.
- Prior to 2019, the court was required to find that waiver of the eligibility period was “in the public interest, giving due consideration to the nature of the offense or offenses, and the applicant’s character and conduct since the conviction or convictions.” 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).
- The Expungement Packet issued by the AOC states that the petitioner is required to serve copies of the petition and supporting documents on the parties entitled to notice under § 2C:52-10, and in the event expungement is granted also to send them a copy of the court’s order. This reading of the law by the AOC seems neither necessary nor logical, and seems to place an unwarranted burden on petitioners.
- 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.
- In 2017 the waiting periods under this statute were reduced from five years.
- 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.” § 2A:168A-7(c). 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, 79 N.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.
- 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.).
- 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.
Several New Jersey municipalities (Newark, Atlantic City) had ban-the-box provisions that were superseded effective March 15, 2015, as a result of the adoption 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. The superseded Newark law 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).