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The marijuana legalization pros and cons have been debated for decades. The recent expansion of New Jersey's medicinal marijuana program, the roll-out of legal hemp cultivation, and referendum on recreational use for those 21 and older planned for later this year, point to the significant and sustained efforts by lawmakers to address the impact of marijuana convictions through reforms to the expungement laws.

Although New Jersey is tough on crime, New Jersey lawmakers also recognize that rehabilitation and reintegration must be the ultimate goal of a successful system of criminal justice. Particularly with regard to low-level offenses. On Dec. 16, 2019, the New Jersey Legislature passed S4154. Two days later, the governor signed the bill enacting P.L.2019, c.269, which amends the expungement statute for marijuana and hashish offenses as well as other criminal offenses not discussed herein. S4154 becomes fully effective on June 15, 2020.

Expungement, the legal sealing of a criminal record from public view, is generally considered the most effective means to afford a path forward for those who have fully served their punishment but whose public arrest record limits employment opportunities and other societal benefits. While expungement will not erase news articles, social media posts, and similar publications, it officially seals the official court and law enforcement records of the event, and permits the person who obtained the expungement to avoid disclosure of the expunged record. Additionally, expunged arrests or charges will generally result in a "no record" background check and will effectively restore an individual's reputation and be a step to rehabilitation. For example, a person arrested for once smoking marijuana as a college freshman would encounter significant hurdles in achieving professional licensure in a number of professions, including as a teacher, lawyer, pharmacist, nurse, architect, and engineer. Expunging that record prior to applying for licensure would allow that person to respond "no" in nearly all questions regarding that situation, and would remove the impediment to a chosen career path.

Reflecting the legislative trend of reducing the waiting period for expungement eligibility for low-level offenses, this new law introduces sweeping changes to the existing expungement eligibility filing process, which has lengthy waiting periods and precise requirements. S4154 expands eligibility for the expungement of marijuana and hashish offenses, streamlines the filing process, and imposes no limits on the number of marijuana and hashish offenses that are eligible for expungements.

Perhaps most significantly, by September 2020 these offenses are to be automatically expunged through the roll out of the Clean Slate Expungement system. This system is expected to automatically expunge dismissed charges without the existing requirement to petition the court and, incredibly, a clean slate expungement will automatically expunge an entire criminal history after 10 years, assuming all offenses are otherwise subject to expungement notwithstanding limits on the number of offenses on the criminal history.

Currently, expungements are not automatically granted, and eligibility depends upon the exact nature of the conviction or disposition. Upon eligibility, a petition must be filed with the court. Eligibility depends upon factors that include: whether pending charges or other convictions exist; whether other convictions are contained within the same judgment of conviction or are closely related in time and circumstances; when the sentence was completed or fine paid in full; whether the person has satisfactorily graduated from drug court; whether the need for the records is outweighed by the need for expungement; and whether there are related civil proceedings pending.

Generally, a dismissed case can be expunged immediately either through a traditional expungement process or, if requested in court at the time of disposition, through an expedited expungement process. However, obtaining an Order of Expungement may take months. Even once the Order of Expungement is issued and properly served on the appropriate parties, it typically takes between four and six months for the official record to be sealed by the State Bureau of Identification. Therefore, a criminal record search will reveal the existence of the arrest, charge and disposition until the State Bureau of Identification complies with the expungement order.

In order to address the difficulty in expunging distribution convictions, the amendment takes the unusual step of reclassifying distribution and possession with intent to distribute marijuana and hashish up to a certain weight, from crimes to disorderly persons offenses. This reclassification will permit the expungement of multiple unrelated crimes. These changes to the existing limits on the expungement of marijuana, hashish, and paraphernalia offenses graded as disorderly persons offenses under the existing code will be eliminated, thereby expanding the ability to clear a record previously only available upon graduation from special probation (or drug court), a sentence not typically imposed on marijuana charges. The absence of such a remedy had previously created anomalous results where those with more serious drug offenses and addictions could wipe out their records but cannabis users generally could not.

The expungement reform law demonstrates New Jersey's profound commitment to contribute to the full rehabilitation of those limited by the stigma of their cannabis criminal histories, and the consequences of that disclosure in connection with housing, employment, voting and other fundamental aspects of sustaining oneself. More importantly, the amendments will further distinguish cannabis offenses from the more devastating consequences wrought by more insidious substances, such as opioids. Once fully implemented, these amendments will provide meaningful relief for countless individuals.

John E. Hogan is Assistant General Counsel at Wilentz, Goldman & Spitzer, in Woodbridge, and a shareholder on the firm's Criminal Law team. Michael F. Schaff is Co-Chair of the Cannabis Law, Health Law and Corporate teams at Wilentz, and serves as Co-Chair of NJSBA's Cannabis Law Committee.