Gov. Phil Murphy said the proposals he sent back to lawmakers for wiping certain marijuana offenses from criminal records could become “de facto decriminalization” for the state.
Administration officials and legislative leadership have been frosty at best on full-fledged decriminalization, worrying it would amount to a back-door legalization of cannabis. But an Aug. 23 conditional veto from Murphy called for a system of automatically sealing marijuana convictions – for distribution of up to five pounds and possession of any amount – once they are handed down to defendants.
“That’s a big deal, so it never gets on your record,” Murphy said at a Tuesday editorial board meeting with NJBIZ.
The sealed record would mean no one would be able to access it, save for some law enforcement, when a person is applying for housing, employment or college, according to a senior administration official.
“All of the people who would normally see that conviction on your record and could potentially use it to disqualify you, they won’t be able to see it,” the official added.
But even with “de facto decriminalization,” a convicted person would still have to go through the arrest, booking with local law enforcement, appearances before a judge, acquisition of a lawyer and a criminal trial—all of which can add up to hundreds or thousands of dollars, and untold hours.
All of this, the official contended, is still “better than the current system.”
The notion of any such decriminalization coming out of the measure that Murphy rejected – Senate Bill 3205 – was heavily disputed by lawmakers such as Senate President Stephen Sweeney, D-3rd District.
“Our bill would have been landmark legislation nationally, and we don’t think that he really improved it,” Sweeney told NJBIZ at an unrelated event in Secaucus Wednesday morning.
The governor has been wary of the “expedited expungement” proposed in S3205, worrying it could overwhelm an already beleaguered and over-stressed system.
“Prioritizing these expungement petitions by providing a shorter time frame for filing will delay the processing of standard expungement petitions,” reads the veto statement. Murphy instead wanted a system of automatic expungement – something lacking in the measure lawmakers sent him.
He proposed lawmakers establish a task force to study how the state could create a digital system to automatically clean offenders’ records for those who stay out of trouble for 10 years – rather than requiring the person to actively apply for expungement – and the kinds of technology necessary for such a change to the system.
Sen. Sandra Cunningham, D-31st District, S3205’s main sponsor, could not be reached for comment.
Sen. Ron Rice, D-28th District, a vocal opponent of marijuana legalization, accused the governor of “buying time” with his proposed “de facto decriminalization.”
Rice, who heads the Legislative Black Caucus, wants the Legislature to move forward with full-fledged decriminalization.
He, along with members of his caucus and the Latino Legislative Caucus are backing Senate Bill 3801, which would decriminalize possession of up to two ounces of marijuana and replace it with a $50 fine.
Sweeney and Murphy have remained skeptical of the proposal.
Sweeney argued the penalties would amount to a traffic ticket, and the measure would become a backdoor to legalization, but said he would be willing to sit down with Rice and listen to his proposals.
“It’s not de facto, and in the [people of color]’s mind, it’s not de facto,” Rice said. “We want immediate decriminalization.”
“The governor is really trying to buy time to get a referendum,” he added.
Murphy said that the bill, as lawmakers sent him when it passed in June, could unintentionally open the door for sexual assault convicts to have their records expunged as well – something the administration wants to avoid.
“Maybe it was just through an oversight, but things like sexual assault, we need to make sure we block that loophole, and the bill that we got, our interpretation was that it would be on the list of expungement-eligible,” Murphy said. “We couldn’t abide by that.”
The Assembly Majority Office did not comment, while the Senate Majority Office heavily disputed Murphy’s assertion.
“The governor is wrong in his interpretation,” Senate Majority Office Deputy Director of Communications Kabir Moss said in a statement to NJBIZ. “The expungement bill does not expand eligibility to offenses that are not currently expungeable.”
Enactment of legislation which has unintended and undesired consequences has been par for the course with lawmakers in the state.
Indeed, Scarinci Hollenbeck’s Dan McKillop, leader of the firm’s cannabis law group told NJBIZ that some language in the bill lacked clarity when the state’s Chapter 52 of the New Jersey Code of Criminal Justice, which precludes serious crimes such as sexual assault and terrorism from expungement eligibility, is also considered.
He pointed to the line in the expungement bill and in Murphy’s veto statement, “In all cases, except as otherwise provided in this chapter, a person may present an expungement application to the Superior Court pursuant to this section if the person has been convicted of multiple crimes or a combination of one or more crimes and one or more disorderly persons or petty disorderly persons offenses under the laws of this State.”
“It’s unclear given the text of the bill how any expungement preclusions that are set forth in Chapter 52 would function once the bill with this language becomes law. [There is a] potential for applications to be filed by persons convicted of serious crimes, and for those applications to be heard because of the language of that sentence in the bill,” McKillop said.
“There could certainly be more clarity used in the language of the bill to make it obvious what the bill is trying to achieve and what it is not. If the language of the bill allowed persons to use it in [regard to crimes such as sexual assault], it would obviously frustrate the real intent of the legislation,” McKillop added.
Legislative leadership conceded in May that they could not garner enough votes among lawmakers to pass a bill legalizing adult-use, recreational marijuana, opting instead to put the measure before voters in the 2020 presidential election.
Sweeney then said in August that he wanted to give legalization another go, likely during the lame duck session between November Assembly elections and lawmaker’s swearing-in ceremonies at the beginning of January.
Murphy said he would be “all in” for a final push.