LEGISLATIVE FISCAL ESTIMATE

[Second Reprint]

SENATE, No. 3205

STATE OF NEW JERSEY

218th LEGISLATURE

DATED: JUNE 4, 2019

SUMMARY

Synopsis:	Revises expungement eligibility and procedures.
Type of Impact:	Annual State expenditure increase; General Fund Annual State revenue loss; General Fund Annual local government expenditure increase
Agencies Affected:	Department of Law and Public Safety; the Judiciary; Department of Corrections; Department of the Treasury; municipal and county governments

Office of Legislative Services Estimate
Fiscal Impact	Year 1	Year 2	Year 3
State Expenditure Increase	Indeterminate
State Revenue Loss	Indeterminate
Local Government Expenditure Increase	Indeterminate

· The Office of Legislative Services (OLS) estimates that if this bill is enacted, the State would incur indeterminate annual cost increases to multiple departments and, in particular, the Department of Law and Public Safety (LPS) for additional resources in the Division of State Police to review and process a higher volume of expungement applications.  However, the OLS can neither confirm nor refute the informal LPS estimate that the clean slate provision of this bill would result in potential cost increases of up to $70.1 million for the State Police if it were to process all new applications within one year of the bill’s enactment.  It is not known how many of those newly eligible to have their records expunged as a result of this bill would choose to go through the process of filing an expungement petition with the court. 

· The LPS cost estimate is based on the assumptions that a high percentage of eligible individuals would file an expungement petition if the bill is enacted and would do so immediately, creating an initial backlog of 1.8 million applications.  Although the OLS cannot test these assumptions, it is likely that the LPS would face an immediate increase in applications following enactment of the bill before the number of annual applications stabilized at a new baseline.  The LPS did not provide any information about the possible fiscal impacts from other provisions of the bill, including expediting the expungement process for certain marijuana and hashish offenses, reducing waiting times for when an application can be filed, and waiving the $75 application fee for all petitioners.

· The Judiciary and, to a lesser extent, the Department of Corrections (DOC) would experience an increased workload to administer and comply with, respectively, the expanded expungement program that would also result in indeterminate annual cost increases for the State.  The Judiciary has indicated that there will be an impact based on its increased administrative activities from a higher volume of applications but that it has not sought to increase staff and is considering technology solutions to meet the increased workload.

· Elimination of the $75 court filing fee for all expungement applications will result in an indeterminate annual revenue loss for the State. The Judiciary has indicated, however, that the elimination of filing fees should have a marginal fiscal impact as many of the individuals who file seek waivers as indigent.  The OLS also notes that the provision of the bill removing willful non-payment of court-ordered fines as a reason to nullify an expungement may also result in an indeterminate amount of forgone revenue from individuals who do not pay outstanding fees and penalties once expungement is granted.

· Local law enforcement agencies, county detention facilities, and municipal courts would also face higher but indeterminate annual costs related to the administrative activities of complying with expungement orders issued by the Superior Court, but the magnitude of these costs are unknown and are likely to vary by municipality.

BILL DESCRIPTION

     This bill concerns several reforms to expungement eligibility and procedures, some focused on the treatment of various marijuana or hashish possession, distribution, or drug paraphernalia crimes and offenses and others being more generally applicable to any expungement.  The bill also provides for a new clean slate expungement, which would permit a person with multiple convictions, based on the commission of multiple crimes or a combination of one or more crimes and one or more disorderly persons offenses or petty disorderly persons offenses, to expunge all such convictions, regardless of the number or types of convictions involved, after a period of ten years without a new conviction.

Standard Expungement:

      Concerning the expungement process for criminal convictions, a person’s eligibility based upon the number or types of convictions would be broadened in several ways.  Under current law, any prior conviction (not associated with an expungement application) which would cause a person to exceed the numerical cap on convictions to be expunged or which would fall outside the types of eligible convictions to be expunged would render a person ineligible to pursue expungement relief.  The bill would eliminate ineligibility stemming from any such prior conviction.

As to eligibility based on waiting periods, the current law’s six-year time period after which a person may first file an expungement application that includes any criminal conviction or convictions, measured from the date of the most recent conviction, payment of any court-ordered financial assessment (such as a fine or restitution), satisfactory completion of probation or parole, or release from incarceration, whichever is later, would be reduced to five years.  This five-year waiting period would also apply to any person who at the time of application had not completed paying all financial assessments, but otherwise satisfied the waiting period, as is currently permitted based on the existing six-year period.  Also subject to reduction by one year, from five years to four years, would be the waiting period for when a person who, having satisfied the fine and all other aspects of sentencing, could make an early application by proving to the court that there are compelling circumstances for granting such early expungement.

       For an application only containing disorderly persons offenses or petty disorderly persons offenses, it would be permitted to include requests for expungement relief addressing up to five convictions, which is one conviction greater than what is currently permitted under the law.

      A person’s eligibility under the expungement process for convictions of either crimes, offenses, or both crimes and offenses based upon not exceeding the aforementioned numerical caps on convictions would be modified concerning how certain marijuana and hashish distribution, possession, and drug paraphernalia crimes and offenses are counted.  Any conviction for certain related crimes would be considered a lesser conviction of a disorderly persons offense instead of a criminal conviction for purposes of determining eligibility, and thus would only count against the cap on convictions for disorderly persons or petty disorderly persons offenses.

      The expungement application process concerning convictions for either crimes, offenses, or both crimes and offenses would be simplified by no longer requiring a separate, duly verified petition for each individual conviction for which expungement relief is sought.  The current law already requires a person to list all of the person’s convictions for crimes and offenses within each petition, so all such information, which is readily contained in just one petition, need not be repeated in multiple petitions as currently required. 

      For those situations in municipal court when no conviction is entered, due to proceedings being dismissed, the person being acquitted, or the person being discharged without a conviction or finding of guilt, the bill would place responsibility on the municipal court for transmitting necessary documentation to the Superior Court so that the latter court could grant an ex parte expungement order.  Under the current law, the person involved in the municipal court proceeding is given documentation which the person could use to later file for an expungement; such an individual filing would no longer be necessary for this person to be granted expungement relief.

Expedited Expungement:

An expedited expungement would be available as a means of more quickly clearing a person’s record with respect to a number of marijuana or hashish possession, distribution, or drug paraphernalia crimes and 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, 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, 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.

Clean Slate Expungement:

The bill would establish a new clean slate expungement which would permit a person with multiple convictions, based on the commission of multiple crimes or a combination of one or more crimes and one or more disorderly or petty disorderly offenses, to expunge all such convictions, regardless of the number or types of convictions involved.  An application for this broad form of expungement relief could be filed after the expiration of a period of ten years from the date of the person’s most recent conviction, payment of any court-ordered financial assessment, satisfactory completion of probation or parole, or release from incarceration, whichever is later.  As with the standard and expedited expungement waiting periods, a person could still apply for a clean slate expungement, even though at the time of application the court-ordered financial assessments were not completely paid off, so long as that person had otherwise satisfied the clean slate ten-year waiting period.

Reforms Applicable to All Categories of Expungement:

      The bill eliminates the existing court filing fee for all expungement applications (currently $75).  The bill additionally assists with the application process by having the Superior Court provide notices of an expungement application to the appropriate law enforcement and criminal justice agencies, which includes information contained in the duly verified petition prepared by the person seeking expungement relief.  Such notices would be distributed within 30 days of an application filing.  Unless a noticed agency provided information back to the court concerning any inaccuracy or missing information, or any other basis for expungement ineligibility, the court hearing the matter would grant the expungement relief sought in the application.

      Lastly, with respect to the on-going collection of court-ordered financial assessments following the granting of an expungement, when applicable, the bill would transfer responsibility for such collection efforts to the State Treasurer.  Under current law, the Judiciary is the primary collector of monies post-expungement through its comprehensive enforcement program.  The bill also removes the willful non-payment of court-ordered financial assessments through the comprehensive enforcement program as a reason to nullify an expungement granted by a court, since this program would no longer be involved in the post-expungement collection efforts.

FISCAL ANALYSIS

EXECUTIVE BRANCH

     No formal fiscal note received.  However, the LPS did provide informal information on the fiscal impacts for one of the bill’s provisions – the clean slate provision.  The LPS estimates that this provision would have a significant fiscal and operational impact on the Division of State Police.  Upon taking effect, this provision would create a potential backlog of approximately 1.8 million eligible petitioners (those persons with more than the number of convictions on their records for which expungement is permitted under current law) whose crimes were committed in 2008 or earlier and who have maintained a clean record for at least ten years.  The LPS says that there is no way to predict the number of eligible individuals who would actually file clean slate expungement petitions, but the LPS states that it is likely to impose a substantial administrative burden.  Assuming that a high percentage of eligible individuals file upon enactment of the bill into law, the State Police estimate that the additional workload necessitated by this change could require over hundreds if not thousands of additional employees to review the additional expungement petitions and process the expungement orders if they were to seek to complete this task within one year.  This task would potentially cost tens of millions of dollars, with an LPS estimate of $70.1 million based on a highest-filing scenario assumption.

     Going forward, the clean slate provision would have the potential to increase the number of expungement applications the State Police must review and process each year.  The clean slate expungement would authorize an expungement petition for every convicted offender who maintains a clean record for ten years.  To illustrate the prospective impact of this provision, an audit of the New Jersey Computerized Criminal History database revealed there were 67,738 individuals arrested in 2008.  After removing those individuals with a barred offense or those who are eligible for expungement under different guidelines, a total of 19,209 individuals would be eligible for expungement review under the clean slate provision.  To put this figure in context, last year the State Police Expungement Unit reviewed 9,426 expungement petitions and processed 5,906 final orders.  Based on these figures, the LPS states that it would have to substantially increase the resources and personnel devoted to expungement to review and process all those additional petitions that would be authorized under the bill.

JUDICIAL BRANCH

      No formal fiscal note received.  However, the Administrative Office of the Courts (AOC) commented that while funding is not sought for the increase in expungement requests, the IT staff is expanding rapidly and it is anticipated that physical space will become an issue.  The AOC further indicated that the elimination of filing fees should have no significant fiscal impact as many of the individuals who file seek waiver as indigent.

OFFICE OF LEGISLATIVE SERVICES

      The OLS estimates that if this bill is enacted, the State would incur indeterminate annual cost increases to multiple departments and, in particular, the LPS for additional resources for the State Police to review and process a higher volume of expungement applications. The provisions of the bill related to clean slate expungements and expedited expungement for certain marijuana and hashish offenses could potentially result in approximately two million new expungement applications within the first year after the bill goes into effect (based on figures provided by the LPS and the Judiciary), which compares to 9,426 applications that were reviewed by the State Police last year according to LPS.  Other bill provisions regarding reduced waiting periods to file an application and the elimination of the $75 filing fee could also potentially increase the number of applications going forward as well.   However, it is not known how many individuals eligible for expungement under this bill would go through the requisite process to have their records expunged or how many would do so within their first year of eligibility.  Therefore, the OLS cannot confirm or refute the LPS estimate that the clean slate provision could potentially result in $70.1 million in increased costs for the State Police to hire additional employees within the first year of the bill’s enactment to address a potential backlog of 1.8 million petitioners. 

      Regarding the expedited expungement process for certain marijuana and hashish convictions, in response to OLS discussion points during the FY 2020 budget hearings, the Judiciary compiled estimates of convictions and pending cases for these types of offenses and indicated that the Judiciary could potentially see 183,265 expungement applications filed for these types of offenses (see table below).  That estimate covers the number of marijuana-related convictions from the last five years – 134,450 in total – and 48,815 cases pending in municipal and criminal courts.  Actual eligibility related to these types of offenses is likely higher since this information only goes back five years.  For comparison, in response to FY 2020 OLS discussion points, the Judiciary indicated that for the 8 months between July 1, 2018 and February 28, 2019 there were 10,216 expungement petitions filed.  Furthermore the Judiciary estimated that by the end of FY 2019, it could potentially see over 15,000 petitions filed.  Again, it is impossible to predict how many of those newly eligible to have their records expunged would go through the process of filing the petition with the court.  Moreover, the timing of when those eligible to file an expungement petition will do so is not known and so it is difficult to ascertain how many applications will be filed during the first year of eligibility or at some point in the future.

      The annual expenditure increase to the State courts is indeterminate but likely marginal according to the Judiciary.  In response to FY 2020 OLS discussion points, the Judiciary said that it had not hired additional staff and is not currently looking to hire additional staff for the expansion of the expungement program.  However, the Judiciary indicated that it is working toward the development of an e-filing solution for expungements, which will assist in simplifying the current expungement process and enable the court system to handle the increase in volume.

      The impact of the bill on the DOC, local law enforcement agencies, county detention facilities, and municipal courts is not known but is likely to result in higher administrative and compliance costs as these entities coordinate with the State Police to ensure that expunged records include all complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, rap sheets, and judicial docket records.

      The removal of the $75 filing fee for an expungement application would result in an unknown amount of foregone revenue for the State because it is unknown how many of those eligible will file an expungement application.  Moreover, the AOC has indicated that many of the individuals seeking expungement file as indigent and seek a payment waiver. The OLS notes that the filing fee is also waived for an expungement resulting from successful graduation from drug court, a Pretrial Intervention Program, or a Veterans Diversion Program so the extent of the revenue impact is lessened by these existing programs.  Similarly, the removal of willful non-payment of court-ordered fines as a reason to nullify an expungement granted by a court could also result in a revenue loss for the State.  Under the bill, the Superior Court will enter a civil judgment in the name of the Treasurer, State of New Jersey, for any unpaid fines outstanding at the time expungement is granted.  The State Treasurer will assume collection and disbursement responsibilities for these fines from the Judiciary but will lack the authority to nullify an expungement as a result of non-payment.  An unknown number of individuals may choose not to pay the balance of their fines since expungement nullification will no longer be a penalty for not paying an outstanding fine.

Section:	Judiciary
Analyst:	Carolyn Roscoe Wright Principal Counsel
Approved:	Frank W. Haines III Legislative Budget and Finance Officer

This legislative fiscal estimate has been produced by the Office of Legislative Services due to the failure of the Executive Branch to respond to our request for a fiscal note.

This fiscal estimate has been prepared pursuant to P.L.1980, c.67 (C.52:13B-6 et seq.).