Gubernatorial Pardon Dissolves Statutory Bar on Expungement of Convictions

In re Petition for Expungement of the Criminal Record Belonging to T.O., ___ N.J. ___ (2021). The first Supreme Court opinion of 2021, issued this morning, was authored by Chief Justice Rabner. The issue, as stated in the first sentence of the opinion, was “the effect of a gubernatorial pardon on request to expunge a criminal record.”

The Chief Justice concisely explained the relevant background:

“T.O. was convicted of separate crimes in 1994 and 1996. In the decades since, he has been gainfully employed, has made contributions to the community, and has successfully rehabilitated himself. In 2018, the Governor granted T.O. a full and complete pardon for his two convictions. T.O. then sought to expunge the records of those convictions. Both the trial court and the Appellate Division concluded that he was ineligible for relief because the language of the relevant statutory section at the time, N.J.S.A. 2C:52-2(a), did not allow individuals with multiple, separate convictions like T.O.’s to apply for expungement.”

The Supreme Court granted review and reversed the decisions below. The decision was unanimous.

Chief Justice Rabner provided a detailed explanation of the history and purpose of expungement and the New Jersey statute governing it, including amendments to the expungement statute that post-dated the origins of this case. He also canvassed the law regarding pardons, drawing on federal cases and decisions and statutes from other jurisdictions, which were a mixed bag.

The Court’s holding was as follows:

“Under the version of N.J.S.A. 2C:52-2(a) in effect when the trial court denied T.O.’s petition, someone who had multiple criminal convictions — not listed in a single judgment of conviction or committed as part of a series of events in a short period of time — was ineligible for expungement. The Governor’s pardon, however, removed the legal disabilities linked to T.O.’s convictions. More specifically, although the pardon did not erase the facts underlying the commission of the offenses, it eliminated disabilities triggered by the convictions themselves. Here, the statutory bar to expungement under section 2(a) arose solely from T.O.’s two convictions. In light of the pardon, that disqualification — or disability — no longer exists. T.O. is therefore eligible for expungement of both of his convictions.”

That did not end the matter, though. Expungement, the Court held, was not automatic, declining to accept an argument to that effect made by a group of amicus curiae former Governors of New Jersey. “[A]lthough a pardon renders a person eligible for expungement, it does not alter history. A pardoned individual may still fail to qualify under the statute for reasons other than the fact of conviction — reasons that live on after a pardon has been granted.”

Once an expungement applicant “has satisfied the law’s initial requirements,” the State then has the burden of showing, by a preponderance of the evidence, why expungement should not be granted. The Chief Justice discussed some arguments that the State might make in that regard.

But T.O.’s case was special. The State did not offer any grounds to deny expungement other than the statutory bar that the Court today found inapplicable. “In fact, at the hearing in the trial court, the State conceded that T.O. has ‘been living a productive, law-abiding life since the 90s’ and acknowledged that ‘[i]f there is a person deserving of an expungement . . . , it is [T.O.]’ The trial judge, as well, stated that T.O. ‘would have qualified’ for expungement, aside from the statutory bar.” Accordingly, the Court granted T.O.’s petition for expungement.