Expunging a Record After Being Granted a Pardon in New Jersey

In Re L.B.
Superior Court of New Jersey, Law Division, Hunterdon County
February 2, 2004

Holding: A governor’s pardon allows a person to petition for expungement where she would otherwise be statutorily barred from doing so.

Why This Case is Important: Chapter 52 of the New Jersey statutes provides the procedures and qualifications for criminal record expungement. The statute specifically provides when a petitioner will be eligible for expungement and when she is not. A petitioner who evidences that she is eligible under the requirements of the statute is entitled to expungement. Once a petitioner establishes that she is eligible, the burden shifts to the government to show that the petitioner is statutorily barred. A statutory bar serves to preclude a petitioner from obtaining her requested relief.

Chapter 52 also provides what convictions are statutorily barred. Among the violations is possession with the intent to sell. A court will look to the facts of the case to determine whether the petitioner indeed intended to sell a dangerous controlled substance. As such, a conviction for possession with the intent to distribute may statutorily bar a petitioner from obtaining expungement relief.

This case analyzes the effect of a pardon on such a conviction. The primary issue was whether a governor’s pardon would lift the statutory bar placed on a petitioner, which would thereby allow her to expunge her records.

A pardon in New Jersey serves to remove the petitioner’s legal disabilities that arise from the conviction. It restores all rights of citizenship, and relieves the burden of the crimes. However, a pardon in New Jersey does not completely erase the fact that a crime occurred; it is only meant to forgive the crime. A pardon therefore does not erase the fact that a crime was committed, but it does change the fact that the petitioner was convicted of a crime.

As a result, a pardon of a conviction that statutorily bars a petitioner from expungement will allow her to successfully petition for expungement. As noted above, the pardon removes all legal disabilities from the conviction. Because the conviction is the disqualifier, and because the conviction has been pardoned and the legal disabilities have been erased, then there is no longer a basis to bar a petitioner from expungement.

Facts of This Case: In 1988, the petitioner pleaded guilty to possession of a controlled dangerous substance with the intent to distribute. In 1991, she was discharged from probation. In 2001, the petitioner received a pardon for her conviction from the Governor. In 2003, the petitioner applied for expungement of her records. The petitioner provided evidence that since her conviction she has not been arrested or charged with any offenses. She also provided evidence that she had moved forward with her life, focusing on her education and professional development. The State’s only opposition to the petition was that petitioner was statutorily barred under the expungement statute.

The Superior Court of New Jersey granted her petition. The court first noted that the petitioner’s conviction would be a statuary bar on her application for expungement. However, the court held that the petitioner’s pardon nonetheless allowed her to expunge her records. The court reasoned that a governor’s pardon served to remove the legal disabilities from the conviction. The court stated that the petitioner was only statutorily barred because of the conviction. Because the legal disabilities of the conviction had been removed, the court held that the petitioner was eligible for expungement.

The court thereby granted the petitioner’s request for criminal record expungement.

Key Language: The legal disability provided in N.J.S.A. 2C: 52-2(c) arises solely from the fact of conviction. The pardon, then, dissolves the attendant legal disability arising from the conviction. Consequently, [petitioner’s application] can be heard on its merits.

Expert Advise: “This case not only demonstrates the power of a pardon, but also how New Jersey expungement law operates. The petitioner in this case met all the requirements of the expungement statute, except for her conviction. Once the statute’s requirements are met, a presumption arises that the petitioner is entitled to relief. What barred the petitioner here was her conviction. However, as the court noted, a pardon will effectively remove the legal disabilities arising from a conviction, allowing an otherwise statutorily barred petitioner to successfully expunge her criminal records.” -Attorney Mathew Higbee.

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