By William Riback
The New Jersey Supreme Court recently ordered that people convicted of cannabis possession receive an automatic expungement of their records.
They require all courts to find cannabis possession offenses and expunge these records, thereby streamlining the process and giving those affected a remedy without the expense and hassle of filling out forms or hiring an attorney. They also terminated all probation and payment of outstanding fines.
The action stemmed from the “Clean Slate” law, which passed in December 2019 and required the courts to develop a system to seal certain cannabis records upon an order of a court.
The expungement law that passed in 2019 established an expedited expungement process for certain minor marijuana, hashish, and paraphernalia conviction records. While laudable for its social justice aims, the process may have the unintended and unfair effect of delaying the review of standard expungement petitions.
Those criminal records included simple possession, failure to make lawful disposition of marijuana or hashish, being under the influence of those substances, and simple possession of drug paraphernalia as well as a school zone or public areas, distribution, and intent to distribute for less than one ounce of marijuana and less than five grams of hashish.
However, the expungement law required the person with a record to file a petition for expungement with the courts. That was not efficient because it would require the convicted person to know of the change in the law, hire an attorney, or figure out the expungement process.
On February 22, 2021, the Governor signed a bill decriminalizing possession of up to six ounces. Following the decriminalization bill’s signing, the Attorney General dismissed all pending cases for possession of under six ounces or distribution of less than one ounce. For cases already resolved, the Attorney General required the courts to devise a system of automatic expungement by operation of law instead of requiring the person with a record to take any steps to petition for an expungement.
The AG’s directive required termination of all sentences, supervision, and unpaid fines terminated, which resulted in the New Jersey Supreme Court’s recent order. According to the Order, 360,000 cases will be affected. However, verifying that one’s record has indeed been expunged might still take some time.
The Long Road to Expungement
The NJ Supreme Court’s Order ends a long history of discrimination against People of Color. At the decriminalization signing ceremony in February, Governor Phil Murphy noted that prior laws were racist.
“Our current marijuana prohibition laws have failed every test of social justice, which is why for years I’ve strongly supported the legalization of adult-use cannabis. Maintaining a status quo that allows tens of thousands, disproportionately people of color, to be arrested in New Jersey each year for low-level drug offenses is unjust and indefensible,” Murphy said.
The law was obviously discriminatory since people arrested in the majority-minority inner cities of New Jersey were charged with possession with intent to distribute within 1,000 feet of a school zone, which is worse than a usual distribution charge. Due to population density, most of the land in Camden, Newark, and other cities is within a “school zone.”
Thus, People of Color were given mandatory prison sentences of three years, while Caucasians in the suburbs received probation. The jails were filled with People of Color for small quantities of cannabis, with little connection to the school zone.
In 1988, Michael Pinsky, Esq. defended his client in State v. Rodriguez, 225 N.J. Super. 466 (1988) by claiming that the law was discriminatory and unconstitutional. The court rejected this argument since they believed the legislature was entitled to prohibit the distribution of a dangerous substance near a school. The court accepted that cannabis was dangerous, and the defense was unable to refute it. They cited Schedule I of the federal Controlled Substance Act (CSA), where cannabis is listed as an addictive and toxic narcotic, despite science refuting these false notions.