Clean Slate Expungements
On December 18, 2019, New Jersey enacted the Clean Slate law (L. 2019, c.269), codified at N.J.S.A. 2C:52-5.3, with respect to expungements. While these laws were originally scheduled to go into effect on June 15, 2020, they were subsequently postponed pursuant to Executive Order 178 to February 15, 2021, due to COVID-19.
The Clean Slate law significantly increases expungement eligibility in the State of New Jersey. While the regular expungement statutes limit the number of offenses that can be expunged (for example, under the regular expungement statutes, a person can expunge one indictable offense and up to three disorderly persons offenses, or up to five disorderly persons offenses if the Petitioner has no indictable offenses), the Clean Slate law places no such limits on expungement eligibility.
So long as the Petitioner has remained offense-free for 10 years, then they are eligible pursuant to the Clean Slate law to expunge an unlimited amount of indictable and disorderly and petty disorderly persons offenses on their record.
In order to be eligible under Clean Slate law, each of the following must be true:
- You must not have a conviction for an indictable offense that is never eligible for expungement (such as robbery, rape, kidnapping, first-degree or second-degree possession with intent to distribute CDS, etc.) (see N.J.S.A. 2C:52-2(b) and N.J.S.A. 2C:52-2(c) for a complete list of these offenses); and
- Ten years must have elapsed from the date of the person’s most recent conviction, payment of the court-ordered financial assessment, satisfactory completion of probation or parole, or release from incarceration, whichever is later.
The above two considerations are the only eligibility requirements. Thus, a person with 20 indictable convictions would theoretically be eligible for a Clean Slate expungement, so long as they meet the 10-year requirement.
In addition, if a Petitioner seeking a Clean Slate expungement had previously had an indictable offense expunged, the Clean Slate law expressly makes it clear that this fact would not act as a bar to eligibility under the Clean Slate law, as it would under the regular expungement statutes pursuant to N.J.S.A. 2C:52-14(e).
Exception for Payment of Fines/Restitution
As discussed above, a Petitioner is eligible for a Clean Slate expungement so long as it has been 10 years since they completed their sentenced or paid off their fines/restitution, whichever is later. There is, however, an exception with respect to the fines/restitution.
If the Petitioner otherwise meets the 10-year time requirement, but still owes fines/restitution due to reasons other than “willful noncompliance,” then the court, at the time of the expungement, can enter a civil judgment for the remaining fines/restitution and proceed with expungement.
Automated Clean Slate Process
As of February 15, 2021, the effective date of the Clean Slate law, petitioners must file a formal petition with the Superior Court of New Jersey to expunge their records in accordance with the Clean Slate law. Pursuant to N.J.S.A. 2C:52-5.4, however, the Clean Slate law will eventually become automated, meaning there will be no need to file a petition with the Superior Court and that these records will eventually be automatically cleared from individuals’ records.
If and when this automated process is established, then Petitioners are no longer eligible to file for a Clean Slate expungement by petition, as described in N.J.S.A. 2C:52-5.3. When, however, this automated system will go into effect is unknown.
Pursuant to the statute, the State of New Jersey has 30 days from the law’s effective date of February 15, 2021, to appoint a “task force” of individuals who will be responsible for making recommendations as to the development of the automated process. Thus, this task force is supposed to be appointed by March 15, 2021.
The task force then has another 30 days to organize, giving them until April 15, 2021, to do that. After the task force organizes, the task force has another 6 months to identify and recommend solutions to any technological, fiscal, resource, and practical issues that may arise in the development and implementation of the automated process. In doing so, the task force is supposed to analyze and implementation of automated processes in Pennsylvania and California; consult with computer programming organizations regarding implementation; and identify the necessary systemic changes, required technology, cost estimates, and possible sources of funding to develop and maintain this system.
At the end of the 6 months — which would be on or around October 15, 2021 — the task force is to issue a “final report of its findings and recommendations” to the Governor and Legislature.
The statute, however, is silent as to what happens next, after the task force issues its report of recommendations. It also provides no further timelines with respect to the actual establishment of the automated process. Thus, it is unclear when New Jerseyans can expect the automated system to go into effect.
Should I File For a Clean Slate Expungement Now or Wait Until the Automated Process Goes Into Effect?
Unfortunately, your guess is as good as ours with respect to when the automated process will go into effect. That being said, determining whether or not you should file your Clean Slate expungement now or wait depends on a few considerations.
If time is of the essence, then we recommend that you file your Clean Slate expungement now. If, however, you are in no rush to obtain expungement and you are struggling financially, then it may be in your best interests to wait for the automated process – with one warning.
Ask any New Jersey expungement lawyer and they will tell you that the Clean Slate statute is very, very unclear and leaves many important eligibility questions unanswered. For example, what happens with convictions for third-degree and fourth-degree possession with intent to distribute convictions? Usually, petitioners are required to establish that “compelling circumstances” warrant the expungement of those offenses, which is a fact-specific inquiry requiring written and sometimes oral argument. Are those offenses eligible or ineligible for the automated Clean Slate process?
Also, what happens with local ordinance offenses? Especially local ordinance convictions that were originally charged as 2C criminal offenses? The Clean Slate law does not expressly state how these offenses are to be handled and whether they are eligible for the automated process. Also, if someone was recently convicted of a local ordinance, does that re-start the 10-year clock? These questions are just the tip of the iceberg when it comes to the many eligibility questions that are raised by this statute.
As expungement lawyers, our job is to argue for the broadest possible interpretation of expungement statutes on behalf of our clients. In fact, lawyers do their best work and their most important work in grey areas of the law such as this. Due to the vagueness of the Clean Slate law, there is a lot to be argued.
When you rely on the automated process, however, you are obtaining expungement on a take-it-or-leave-it basis. In other words, the State gets to decide what gets expunged and you, unfortunately, have no say in the matter. For these reasons, unless you are struggling financially and are in no hurry to obtain an expungement, in which case it may be in your best interest to wait to the automated process, we strongly recommend that you obtain an attorney to file your Clean Slate expungement.