By Star-Ledger Guest Columnist published 5-29-19
By Akil Roper
Later this year, Pennsylvania will be the first state to implement a system of expungement and sealing of criminal records – that will require the court and law enforcement to expunge automatically certain arrest and conviction records without petitioners having to file a formal application. While other jurisdictions in the nation are considering some form of expedited expungement, New Jersey is well-positioned to, and should, embrace this concept to help blaze a trail to a more efficient and just expungement process.
For many years, New Jersey’s expungement law has been an important source of relief for those who have “paid their debt” to society, distanced themselves from past involvement in the criminal justice system and demonstrated their rehabilitation. Expungement can help create a path to a well-paying job, a decent apartment and necessary education. To some extent, however, complicated procedural requirements stifle the rights of eligible petitioners. Simplifying and streamlining the process now will make expungement all that more impactful going forward.
Given that lawyers can charge thousands of dollars to file an expungement application, many with lesser resources are forced to navigate a confusing, multi-step process unrepresented. Seeking justice in our courts without the assistance of a lawyer carries a much greater risk of failure. Without a lawyer, some may not even be aware that expungement is an option available to them.
This reality begs the question: how many of those eligible for expungements do not get the relief that they are entitled because of lack of awareness, procedural barriers, or lack of resources? One national study found that between 30 percent and 40 percent of adults with records were entitled to some form of expungement but have not obtained one. And in California, fewer than 10 percent of people eligible for expungement actually expunged their records. In response, a bill is pending to provide for an automated expungement process.
A few years ago, Legal Services of New Jersey created an interactive website Clearing Your Record Online where users on their own can access expungement tools for free, including a program that determines one’s eligibility for expungement and, if eligible, helps users create forms that can be filed with the court.
Since its launch, the website has increased access to the courts and helped many people who could not afford a lawyer file expungement applications. CYRO, to date, has received over 20,000 hits and facilitated the creation of almost 1,500 completed expungement applications. Yet, Petitioners who use the website must still obtain all of their criminal record information on their own, file and serve their papers, respond to any objections and otherwise defend their applications. Not every eligible petitioner will be able to make use of this online program. New Jersey can and should do more.
We believe the future of expungement should be online, automatic in appropriate instances, integrated with and facilitated by the courts. Pennsylvania, as mentioned above, will soon employ a procedure where most dismissed cases and certain other minor conviction records would be sealed without any action required by the individual. To make this happen, the court and state police in Pennsylvania would use computerized search techniques to determine cases eligible for such automatic sealing on a regular basis. Absent any objection from law enforcement, a blanket “order of limited disclosure” would be issued for those cases.
Implementing a system where every individual eligible for expungement has their records expunged without requiring a petition or application will logically place some burden on the state. But the alternative is the status quo, in which thousands or even millions of New Jerseyans who are eligible to expunge, get no relief and continue to face numerous and unnecessary barriers to expungement and employment, housing and education opportunities. Such an outcome is unacceptable.
Akil Roper is vice president and assistant general counsel of Legal Services of New Jersey (“LSNJ”). LSNJ coordinates and supports the statewide network of non-profit civil legal services programs.