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In a recent opinion, the Supreme Court of New Jersey considered the scope of the governor’s pardon power and how it interacts with the legislature’s power regulate the conditions of expungement.  Ruling for the petitioner, the court opened the door for individuals to have their records expunged after a gubernatorial pardon, despite a statutory bar for those with multiple convictions.[1]

Writing for a unanimous court, Chief Justice Stuart Rabner didn’t dwell long on petitioner T.O.’s crimes, noting simply that he had been convicted of assault and drug possession many years ago.[2] Instead, the Chief Justice elaborated on T.O.’s actions in the subsequent two decades, including his employment at a private corrections company, residential reentry facilities, jails, and drug treatment programs.[3] After his release from prison, T.O. led a “productive life,” volunteering at a homeless shelter and creating a nonprofit group devoted to feeding the homeless.[4]

In 2017, with the support of friends, family members, and co-workers, T.O. applied for a pardon, which then-Governor Chris Christie granted. T.O. then petitioned a superior court to have his record expunged. The prosecutor acknowledged that “[i]f there is a person deserving of an expungement . . . it is [T.O.].”[5] However, the State opposed the petition based on a statute that prohibited people convicted of multiple crimes from applying for expungement. According to the State, a pardon had no effect on the statutory bar. The trial court agreed with the government both that T.O. deserved an expungement and that he was legally barred from one, concluding “I wish I could grant [the] application.”[6]

The appellate court affirmed, reasoning that “expungement is not a right guaranteed by constitutional or common law; it is purely the product of legislation.”[7] Because pardons erase neither the conduct underlying a conviction nor all of the consequences of that conviction, Governor Christie’s pardon could not abrogate the statutory bar. The New Jersey Supreme Court subsequently granted review.

At the high court, T.O. argued that because pardons remove any legal disqualification triggered by the fact of conviction, the appellate court’s interpretation of the expungement statute unconstitutionally interfered with the governor’s pardon power. He further argued that while the statute was silent on the effect of pardons, his interpretation did not conflict with it and indeed was consistent with the legislature’s goal of providing relief to reformed offenders.[8]

Various parties submitted amicus briefs in T.O.’s favor, including several former governors (Governor Christie among them). Together the governors argued not just that T.O.’s interpretation was required to avoid a separation powers of problem, but that expungement should occur automatically in all cases upon pardon.[9]

Other amici, including the ACLU of New Jersey, argued that nothing in the statute actually barred a pardonee with multiple convictions from applying for expungement and that the statute should be interpreted broadly given the legislature’s recent amendments—which demonstrated an intent to provide broad relief to former offenders.[10] They also made policy arguments, arguing that expungement promotes employment and housing and reduces the likelihood of recidivism.

For its part, the State argued that there was no evidence that the legislature intended to allow expungement based on pardon.  And because a pardon could not change the fact that T.O. had been convicted of two prior crimes, it could not supersede the statutory bar. While amici had noted that several states make pardonees eligible for expungement by statute or case law, New Jersey had not, and a majority of jurisdictions hold that a pardon does not remove the adjudication of guilt.[11]

The New Jersey Supreme Court reversed. It first reviewed the basics of expungement[12] and noted that the legislature had consistently amended the statute to expand eligibility. It next turned to the pardon power of the President of the United States, which it said “informs” the understanding of the gubernatorial pardon power. Based on the King of England’s power to “forgive[] any crime, offence, punishment, execution, right, title, debt, or duty, temporal or ecclesiastical,”[13] the presidential pardon removes all “penalties and disabilities” related to the pardoned crime and restores a person “to all his civil rights.” According to the United States Supreme Court, a pardon makes a person “a new man,” “gives him a new credit and capacity,” and as far as the pardoned offense goes, “place[s] [him] beyond the reach of punishment of any kind.”[14]

But there are limits on the president’s pardon power. The Supreme Court has observed that a presidential pardon “does not make amends for the past,” does not afford relief for past imprisonment, and doesn’t provide compensation to those harmed.[15] For example, a pardoned landowner may not recover the money generated from the sale of his seized property.[16] It has also clarified that a pardon does not overturn a judgment; it instead “mitigates or sets aside punishment for a crime.”[17] In sum, at the federal level, a pardon removes all penalties for the crime, but does not erase the fact of the crime, meaning that a pardon has a legal but not a moral effect.

Turning to the New Jersey constitution, the court cited state court cases holding that a pardon “does not restore” what the parties have already endured but instead “releases [them] from all future penalty.[18] As in federal cases, a pardon does not have any moral effect—it does not remove guilt or affect decisions dependent upon character. That is, if a law disqualifies a person from public employment or government benefit on the basis of having committed a certain crime, a pardon removes that disqualification. But if the employment or benefit depends on “character,” the decisionmaker may still consider the crime as part of that calculation. In sum, a gubernatorial pardon wipes out future legal consequences of the pardoned conviction, but it does not affect or rehabilitate a person’s moral character.[19]

With this understanding, the New Jersey Supreme Court ruled that the pardon removed the legal consequences of T.O.’s convictions, including being disqualified from expungement.[20] But contrary to the former governors’ assertion, expungement was not an automatic effect of a pardon. Instead, T.O. would still have to satisfy the other statutory criteria necessary to qualify and the burden would then shift to the State to show why the petition should not be granted—for example because of the circumstances of the offense or the harm that was caused.[21] Because there was nothing in the record demonstrating that T.O. should not receive expungement—indeed the appellate and trial court judges had agreed he deserved one—the court ruled that T.O.’s record should be expunged.[22]

At bottom, both the Supreme Court and the Court of Appeals believed there was a separation of powers problem. But while the Court of Appeals thought the executive was interfering with the legislative power, the Supreme Court saw the Court of Appeals’ interpretation of legislative power as interfering with the executive power. The Court of Appeals had viewed expungement purely as a matter of legislative concern, meaning it focused very little on the scope of the pardon power and instead looked at the text of the expungement statute. And it used legislative intent to inform the text’s silence with regard to the effect of a pardon. The Supreme Court, by contrast, determined that the governor enjoys a broad power to remove legal consequences of convictions through the pardon power, and thus that legislative intent was immaterial. Whatever the legislature thought of the eligibility of people who committed multiple crimes to apply for expungement, its legal obstacles are removed once the governor grants a pardon. That doesn’t mean that individuals in New Jersey are constitutionally entitled to expungement once they are pardoned; it simply means the legislature cannot bar them from eligibility based solely on the pardoned crime.

[1] See In re Petition for Expungement of the Criminal Record Belonging to T.O., A-55-19 (084009) (Jan. 11, 2009).

[2] Id. at *3.

[3] Id.

[4] Id.

[5] Id. at *8.

[6] Id. at *5.

[7] Id.    

[8] Id. at *6.

[9] Id. at *8.

[10] Id. at *7.

[11] Id. at *9.

[12] It observed, for example, that if a court grants expungement, “the arrest, conviction and any other proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly.” N.J.S.A. 2C:52-27. However, a pardonee must still reveal information in expunged records when seeking employment with the judiciary, law enforcement, or a corrections agency.

[13] Ex parte Wells, 59 U.S. 307, 311 (1856).

[14] Id

[15] See Knote v. United States, 5 U.S. 149, 153 (1877).

[16] Id. at *153-54.

[17] Nixon v. United States, 506 U.S. 224, 232 (1993) (citation omitted).

[18] See Cook v. Board of Chosen Freeholders, 26 N.J.L. 326, 329 (Sup. Ct. 1857).

[19] The court also surveyed the effect of pardons in other states, noting that the case law was mixed. Some courts have held that a pardon does not entitle one to expungement, while others have held that it automatically entitles one to expungement. And in contrast to New Jersey, more than a dozen other states explicitly provide that a pardon makes a conviction eligible for expungement, including Arkansas, Connecticut, Delaware, Georgia, Illinois, Kentucky, Maryland, Massachusetts, Nebraska, North Carolina, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and West Virginia.

[20] See In re Petition for Expungement of the Criminal Record Belonging to T.O., A-55-19 (084009) (Jan. 11, 2009) at *26.

[21] Id. at *28.

[22] Id. at *29.