New Jersey Section 2C:52-21 – Use of expunged records in conjunction with setting bail, presentence report or sentencing

The Ins and Outs of New Jersey’s Expungement Law: Section 2C:52-21

In New Jersey, expungement allows people convicted of certain crimes to have their criminal records erased. This can open doors to jobs, housing, education, and other opportunities that may otherwise be unavailable due to a criminal record. One aspect of New Jersey’s expungement law that is less known is how expunged records can still be accessed and used in certain circumstances. This article will examine Section 2C:52-21 of New Jersey’s expungement statute, which allows expunged records to be used when setting bail, creating a presentence report, or during sentencing.

What is Expungement in New Jersey?

New Jersey’s expungement law is contained in N.J. Stat. Section 2C:52-1 et seq. It allows for the extraction and isolation of a person’s criminal record from the files of the courts, law enforcement agencies, correctional facilities and other criminal justice agencies[1]. The records that can be expunged include complaints, warrants, arrests, commitments, fingerprints, photographs, index cards, rap sheets and judicial docket records[2].

In order to qualify for expungement in New Jersey, a person must meet certain eligibility requirements. This includes waiting a designated period of time after completion of their criminal sentence and not having been convicted of certain disqualifying offenses[3]. The waiting period is 5 years for most indictable offenses, such as theft, and 10 years for more serious crimes, like aggravated assault[4].

If a person meets the eligibility criteria, they can file a petition for expungement with the Superior Court. The petition will then be reviewed by a judge who decides whether to grant or deny expungement. If approved, the person’s criminal record will be isolated and only made available under very limited circumstances[5].

What Does Section 2C:52-21 Allow?

Section 2C:52-21 of New Jersey’s expungement statute provides that expunged records can be accessed and used for certain purposes related to setting bail, creating a presentence report or during sentencing. Specifically, the law states:

“Expunged records, or sealed records under prior law, of prior arrests or convictions shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a presentence report or for purpose of sentencing.”

This section creates limited exceptions to the general confidentiality of expunged records under New Jersey law. The reasoning is that judges, prosecutors and others in the criminal justice system need access to the most complete information possible when making decisions about bail, sentencing and corrections supervision.

Setting Bail

One instance where expunged records can be released is for bail hearings. When a judge is deciding whether to release a defendant pending trial, and if so, under what conditions, they are permitted to consider the person’s prior expunged offenses. This can include arrests, convictions and sentences that no longer appear on a standard criminal background check.

The judge may feel that the expunged convictions provide insights into the defendant’s character and likelihood to appear at future court dates. For example, if the person was previously convicted of bail jumping, the judge may opt to deny bail or impose a higher amount. Accessing expunged records allows them to make a more fully informed decision when setting bail.

Presentence Reports

Expunged records can also be released to probation officers when compiling presentence reports. Presentence reports provide information about a defendant’s background to help guide sentencing. This can include details on family history, education, employment, mental health, substance abuse and prior criminal record.

While expunged offenses don’t count as criminal history points under New Jersey’s sentencing guidelines, they can still offer insights for sentencing. A probation officer may justify a harsher sentence recommendation if the offender has a lengthy expunged record, showing lack of rehabilitation. Access to expunged records results in presentence reports that paint a fuller picture of the defendant.

Sentencing

Finally, Section 2C:52-21 allows judges to review expunged records when determining an appropriate sentence for a new offense. As with bail and presentence reports, the judge may feel that accessing expunged files provides useful information about the likelihood of recidivism and need for deterrence. Seeing the full scope of the defendant’s prior record, including expunged cases, helps them hand down a fair and just sentence.

Consulting an Attorney

The expungement process in New Jersey can be complex, especially with nuances like the exceptions in Section 2C:52-21. Consulting an experienced criminal defense attorney can help maximize your chances of having your record expunged. An attorney will also advise you on what information may still be available to certain parties even after expungement. This ensures you fully understand what expungement does, and does not, accomplish in New Jersey.

With proper legal guidance, New Jersey’s expungement law can serve as a powerful tool for people seeking to overcome their criminal past. While exceptions exist, expungement opens doors to jobs, licenses, housing and other opportunities that may have otherwise been lost forever due to a conviction.