NJ Supreme Court Chief Justice Stuart Rabner

In a unanimous Jan. 8, 2019, decision written by Chief Justice Rabner, the New Jersey Supreme Court held out a lifeline to drug offenders who successfully complete the rigorous regimen implemented by the drug courts of this state. Matter of Expungement of Arrest/Charge Records of T.B., J.N.-T. and R.C. That lifeline could not be more important in the opportunity it offers drug court graduates to have their entire criminal histories expunged even when those histories are significant, thereby affording offenders a true fresh start to find employment and live a law-abiding life.

In reversing the Appellate Division, the court's key holdings, based on a relatively new 2016 law commonly known as the drug court expungement statute, N.J.S.A. §2C:35-14(m), are: (1) the new law “favor[s] expungement for successful graduates;” (2) successful drug court participants are entitled to a rebuttable presumption that expungement of their third or fourth degree drug sale offenses “is consistent with the public interest,” shifting the burden to prosecutors to present proof of disqualifying convictions and other factors bearing on the public safety; (3) applications for expungement by drug court graduates may be heard only by drug court judges who are familiar with the participants and with drug court requirements; and (4) unlike other applicants for expungement, drug court graduates need not include with their expungement applications copies of all relevant transcripts and reports of prior convictions, documents that are often difficult and expensive to obtain especially when they relate to old convictions. On this last point, the court said that these documents can be required “on a cost-effective basis” if a judge hearing a specific expungement application thinks them necessary.

The opinion traces the history of expungement statutes in New Jersey. It was not until 2010 that a third- or fourth-degree conviction for selling drugs could be expunged, and then only if expungement was “consistent with the public interest,” a standard the court held was the applicant's burden to meet under the general expungement statute. In re Kollman, 210 N.J. 557 (2012). Moreover, to meet that burden under Kollman, the applicant had to provide all transcripts of plea and sentencing hearings and pre-sentence reports as part of an expungement application, sometimes a difficult and expensive proposition.

The 2016 law made significant changes, applicable to drug court graduates. It allows expungement of the applicant's entire criminal record “for any offense enumerated in Title 2C … upon successful discharge from a term of special probation … if the person satisfactorily completed a substance abuse treatment program [i.e., drug court program] and was not convicted of any crime during the term of special probation.” Convictions of certain serious crimes such as murder, robbery, kidnapping, aggravated sexual assault, and first- and second-degree drug sale crimes are excluded. Moreover, the statute provides a simpler application process and requires the applicant to pay no fees. Rather, drug court graduates need only “bring [the] matter to the attention of the Drug Court judge prior to graduation.” It is then up to the prosecutor, who would by then be familiar with the applicant through his drug court participation, to raise any objection. If a criminal record is expunged and the applicant is later “convicted of any crime,” the full criminal record “may be restored” and no future expungement may be granted.

The opinion is enlightening in its description of New Jersey's drug courts and the positive effect they are having on a population largely disadvantaged by addiction. As described, drug court participants are sentenced to a term of special probation of up to five years, requiring frequent drug testing and regular court appearances. The program involves “rigorous” supervision and participation by judges, probation officers, prosecutors, public defenders, and treatment providers. More than 5,400 persons have successfully completed drug court since it was established statewide in 2002. Of those, 90 percent were employed when they graduated, and all must have been free of drugs for one year. Drug court graduates experience much lower rates of recidivism than do other former offenders.

It is notable that the three applicants in this case all had significant criminal records and yet expungement, according to the decision, is presumed to be in the public interest. T.B.'s record included 13 arrests and convictions, some for drug offenses. J.N.-T.'s record included eight convictions for third-degree offenses including burglary and drug offenses. R.C.'s record, dating from 1996, consisted of five arrests and three Superior Court convictions, including for drug offenses. Although the Appellate Division had engrafted the more rigorous and expensive procedure and standards of the general expungement statute onto the 2016 drug court expungement statute, the Supreme Court remanded the three cases to the trial court for determination under the distinctly different and less onerous principles discussed above.

The court's opinion does a service, not only in clarifying the standard for expungement under the 2016 statute but also in explaining the valuable work done by drug courts and the judges, prosecutors and treatment providers who participate in them and the new world of opportunity available to participating offenders who previously would not likely have been able to salvage lives of drug sales and drug abuse. The work of these courts is unique and to be applauded.