ASSEMBLY APPROPRIATIONS COMMITTEE
ASSEMBLY, No. 5325
STATE OF NEW JERSEY
DATED: MAY 20, 2019
The Assembly Appropriations Committee reports favorably Assembly Bill No. 5325.
This bill would provide for various “social justice” reforms, some based on criminal justice and others based on civil justice, which would reduce the legal consequences associated with certain marijuana and hashish offenses as well as affect expungement eligibility and filing procedures, concerning both marijuana and hashish offenses and more generally.
Regrading Marijuana and Hashish Offenses
The bill would regrade the unlawful distribution of, or possessing or having under control with intent to distribute, less than five pounds of marijuana or less than one pound of hashish.
Under current law, distribution of less than five pounds, but at least one ounce or more, of marijuana, or distribution of less than one pound, but at least five grams or more, of hashish, is punishable as a crime of the third degree; this crime can be punished by a term of imprisonment of three to five years, a fine of up to $25,000, or both. Distribution of any smaller amounts, that is, less than one ounce of marijuana or less than five grams of hashish, is punishable as a crime of the fourth degree; this crime can be punished by a term of imprisonment of up to 18 months, a fine of up to $10,000, or both. See N.J.S.2C:35-10, subsection b., paragraphs (11) and (12).
The bill would regrade the unlawful distribution of, or possessing or having under control with intent to distribute, less than five pounds of marijuana or less than one pound of hashish as follows, based on the amount distributed or intended for distribution:
- one pound or more but less than five pounds of marijuana, or one-half pound or more but less than one pound of hashish would be a crime of the third degree (three to five years imprisonment; up to $25,000 fine; or both);
- two ounces or more but less than one pound of marijuana, or five grams or more but less than one-half pound of hashish would be a disorderly persons offense based on a first offense (up to six months imprisonment; up to $1,000 fine; or both), and would be a crime of the fourth degree for a second or subsequent offense (up to 18 months imprisonment; up to $10,000 fine; or both); and
- less than two ounces of marijuana, or less than five grams of hashish would be an unlawful act subject only to a civil penalty of $50. This penalty would be recovered in a summary proceeding before the municipal court having jurisdiction, and would get paid into the treasury of the municipality in which the violation occurred for the general use of the municipality.
The bill would also regrade the possession of small amounts of marijuana or hashish. First, the maximum amount constituting a small amount marijuana possession violation under paragraph (4) of subsection a. of N.J.S.2C:35-10 would increase from 50 grams (1.76 ounce) to two ounces (the amount constituting a small amount hashish possession violation under this paragraph would remain the same, at five grams or less). Second, possession of this amount of marijuana or hashish would be reduced from a fourth degree crime or disorderly persons offense, depending upon the amount possessed in accordance with the pre-reform possession categories, to an unlawful act subject only to a civil penalty of $50; and the bill would establish a legal presumption that the possession of such amount of marijuana or hashish is the authorized possession of medical cannabis or a medical cannabis product in accordance with the “Jake Honig Compassionate Use Medical Cannabis Act,” P.L.2009, c.307 (C.24:6I-1 et al.), based on the title and provisions of that act being revised by a proposed Assembly Committee Substitute combining Assembly Bill No. 10 and the previous Assembly Committee Substitute for Assembly Bill Nos. 3740 and 3437 that is under consideration in the Assembly, or the authorized possession of such amount in accordance with P.L.2015, c.158 (C.18A:40-12.22 et al.). If the presumption can be overcome, by a preponderance of evidence, that a substance possessed was illegal marijuana or hashish, the $50 civil penalty may be imposed. The civil penalty would be recovered in a summary proceeding before the municipal court having jurisdiction, and would get paid into the treasury of the municipality in which the violation occurred for the general use of the municipality.
Reducing the Legal Consequences of Certain Marijuana and Hashish Offenses
No court would have jurisdiction over any charge, including any charge of delinquency, except to the extent required to dismiss, withdraw, or terminate the charge, based on a prior small amount distribution or possession violation that would now only be punishable by a civil penalty, unless a final judgment of conviction or adjudication of delinquency had been entered on or before the bill’s effective date. These non-prosecutable charges and cases would be expeditiously dismissed, which could be accomplished by appropriate action by a law enforcement agency, or on a motion to the court with jurisdiction over a case, or the court’s own motion, based upon guidelines or directives issued by the Attorney General and the Administrative Director of the Courts.
Any past, present, or future charge, conviction, or adjudication of delinquency for an even broader array of marijuana and hashish offenses would not be considered whenever the Pretrial Services Program established by the Administrative Office of the Courts conducted a risk assessment on a person for the purpose of making recommendations to a court about an appropriate pretrial release or pretrial detention decision for that individual in accordance with sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.). These non-considered offenses would include:
- unlawful distribution of, or possessing or having under control with intent to distribute, less than five pounds of marijuana, or less than one pound of hashish, in violation of paragraph (11) or (12) of subsection b. of N.J.S.2C:35-5, or a violation of either of those paragraphs and a violation of subsection a. of section 1 of P.L.1987, c.101 (C.2C:35-7) or subsection a. of section 1 of P.L.1997, c.327 (C.2C:35-7.1), for distributing, or possessing or having under control with intent to distribute, on or within 1,000 feet of any school property, or on or within 500 feet of the real property comprising a public housing facility, public park, or public building;
- obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of any amount of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., subsection b., or subsection c. of N.J.S.2C:35-10; or
- a violation involving any of the aforementioned offenses and using or possessing with intent to use drug paraphernalia with that marijuana or hashish in violation of N.J.S.2C:36-2.
The bill would also establish grounds for post-conviction relief due to a past conviction or adjudication of delinquency for any of the above described marijuana or hashish offenses, which would permit an opportunity to have a sentence reduced or changed as permitted by the court.
New Forms of Expungement: “Virtual” and Expedited Expungements
Beginning immediately upon the enactment of the bill, any arrest, charge, conviction, or adjudication of delinquency, and proceedings related thereto, for any of the above described marijuana or hashish offenses that occurred prior to the bill’s effective date would be deemed not to have occurred (other than, generally, with respect to the consequences of any sentence set forth in a judgment of conviction), providing such legal relief without need to petition a court for an expungement order granting such result. While persons would be able to respond to questions about such past occurrences accordingly, information about such would still need to be revealed if seeking employment within the judicial branch or with a law enforcement or corrections agency, and the record would be subject to review in accordance with N.J.S.2C:52-15 et seq.
Also beginning on the bill’s effective date, an expedited expungement process would be available as an additional means of clearing a person’s record with respect to those same past marijuana or hashish offenses. For any person, who prior to the effective date of the bill, was charged with, convicted of, or adjudicated delinquent for any number of such marijuana or hashish crimes or offenses, other than a larger amount distribution crime in violation of paragraph (11) of subsection b. of N.J.S.2C:35-5, there would be no waiting period before applications could be filed. For any person, who on or after the effective date, was charged, convicted, or adjudicated delinquent for any number of such marijuana or hashish crimes or offenses, other than a larger amount distribution crime, there would be an 18-month waiting period measured from the date of the most recent conviction, payment of any court-ordered financial assessment, satisfactory completion of probation or parole, or release from incarceration, whichever is later; however, a person could still apply for an expedited expungement, even though at the time of application the financial assessments were not completely paid off, so long as that person had otherwise satisfied the 18-month waiting period.
Concerning a larger amount distribution crime in violation of paragraph (11) of subsection b. of N.J.S.2C:35-5, a person, regardless of when charged, convicted, or adjudicated delinquent, would only be permitted to apply for an expungement after a period of three years, although with the ability to file even if all court-ordered financial assessments were not completely paid off at the time of filing.
Reforms Applicable to All Expungements
Penalties for Wrongful Dissemination of Expunged Records or Information
The bill would increase the maximum fine, from $200 to $2,000, which could be imposed on a person who reveals to another the existence of an arrest, conviction, or related legal proceeding with knowledge that the record or information has been expunged or sealed. A person could also be subject to a term of imprisonment of up to six month because such an act is categorized as a disorderly persons offense. See N.J.S.2C:52-30.
In addition, the bill provides that any person or
entity regularly engaged in the business of collecting, assembling, evaluating
or disseminating records on individuals for a fee is required to regularly
update their records to ensure accuracy, promptly delete a record that has been
expunged, provide clients with the date collected and explain to clients that
records are valid only as of the date collected. Any such regularly-engaged
person or entity who disseminates a record that has been expunged and knows or
should have known at the time of dissemination that the record has been
expunged is liable to the individual who is the subject of the record for a
damages totaling $5,000 or the actual damages caused by the violation,
whichever is greater, plus costs and attorney fees.
E-filing System and Promoting the Expungement Process
To assist with expungement applications, the Administrative Office of the Courts would develop an expungement e-filing system, to be used in the future for all expungement filings, and upon implementation would additionally provide for electronic service of process and document management. Electronic distribution of notices for expungement relief and copies of expungement orders to appropriate law enforcement and criminal justice agencies would also be done by the courts.
The office’s head, the Administrative Director of the Courts, would develop a multilingual public awareness campaign to promote awareness of the expungement process, as well as information on State, local, nonprofit and other private job training programs in consultation with the Department of Labor and Workforce Development, with a focus on assisting those persons eligible for an “expedited” expungement or “clean slate” expungement, based on a new form of expungement proposed in the Second Reprint to Assembly Bill No. 4498 under consideration in the Assembly, which could generally clear a person’s entire record after a 10-year waiting period.
Civil Justice Reforms
In addition to the above described criminal justice relief largely focused on marijuana and hashish offenses and expungement eligibility and procedures, the bill would provide an array of civil protections against discrimination targeting persons with an arrest, charge, conviction, or adjudication of delinquency involving any of the aforementioned marijuana and hashish distribution, possession, and drug paraphernalia crimes or offenses (see list under statement heading Reducing the Legal Consequences of Certain Marijuana and Hashish Offenses). These protections would include monetary penalties, enforceable by the State, against employers regarding employment actions or persons involved with mortgage lending activities, as well as a private cause of action for discrimination in public or private housing, real property, or any place of public accommodation.
Further, regarding any of the aforementioned marijuana or hashish crimes or offenses, the bill would permit persons currently subject to probation or parole as a result of a criminal conviction to remain eligible to vote. Lastly, the bill would make confidential, and no longer a government record subject to public inspection under P.L.1963, c.73 (C.47:1A-1 et seq.), the portion of any criminal record concerning a person’s detection, apprehension, arrest, detention, trial or disposition for any such crime or offense.
The OLS projects that the downgrading of crimes for unlawful distribution of, or possessing or having under control with intent to distribute, certain small amounts of marijuana or hashish which under the bill would be reduced to a civil penalty of $50, would result in an indeterminate increase in revenue for the municipalities. From the downgrading of these crimes to a civil penalty, the Judiciary, Department of Law and Public Safety, Office of the Public Defender, the Department of Corrections, and county prosecutors would have an indeterminate decrease in caseload and expenditures. The Judiciary would also have an indeterminate decrease in revenue from collecting fewer penalties and fines and would incur an increase in expenditures for the development of the expungement e-filing system and from promoting the expungement process.