The Incarcerated State of our State
By Nikki Tierney, JD,LPC,LCADC, CPRS
NCAAR Policy Analyst
New Jersey has an incarceration rate of 341 per 100,000 people. This includes people who are incarcerated in local jails, state and federal prisons, juvenile detention facilities and involuntarily committed in institutions. New Jersey incarcerates a higher percentage of its people than almost any democratic country on earth. In New Jersey, there are currently 24,000 people incarcerated: 7,900 people are being held in local jails; 12,500 humans are locked away in state prison; 2,300 people have their freedom removed in a federal prison; 800 New Jerseyans have been involuntary committed; and 510 minors are being incarcerated in juvenile detentions facilities.
While the numbers of human beings incarcerated in New Jersey is alarming, New Jersey’s prisons also had the highest racial disparity in the nation in 2021, making this policy failure even more evident. The Garden State has an incarceration epidemic. This is demoralizing for many reasons, including that incarceration causes trauma, is not an effective means to change behavior or address the true causes of behavior, and the consequences of criminal system involvement are infinite and vast. New Jersey prisons release about 8,182 people every year; however, because of state policies and laws, these people will never truly be “released” or free. This epidemic is one we created ourselves and one that can be remedied through evidence-based, humane legislative and policy changes.
If there was a silver lining for the exorbitant number of individuals incarcerated in our state, New Jersey was recognized by the Collateral Consequences Resource Center as the “Reintegration Champion” of 2019, for having the most consequential legislative record of any state in the past year. However, this honor has been proven by time to be harder to achieve, leaving those most impacted by mass incarceration thwarted in the process.
One major legislative action that contributed to New Jersey being recognized as the Reintegration Champion was Governor Murphy signing S4154 into law as part of his Second Chance Agenda. The law which created a “clean slate” system that would provide for expungement of all but the most serious violent offenses after ten years from the date of conviction. This law went into effect on June 15, 2020 and its spirit would make New Jersey one of the most progressive in the United States. The law also required the Administrative Office of the Courts to develop an e-filing system which was intended to automatically produce all of the requisite documents and fulfill the statutory service requirements, thereby eliminating barriers to access. This was completed in 2021 with the statewide launch of New Jersey’s eCourts Expungement System. The legislation also mandated a task force to examine, evaluate, and make recommendations on its implementation.
Report Card Fails to Reflect Label of Reintegration Champion
Another piece of legislation that supported New Jersey’s label as the Reintegration Champion in 2019 was a law that removed the prohibition on voting by persons on parole or probation due to “an indictable offense,” modifying the period of disenfranchisement only to incarceration.Previously, the right to vote was lost while serving a sentence for an indictable offense, including the period of probation or parole. Governor Murphy also signed the Fair Chance in Housing Act, which was touted as the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. Finally, legislation that allowed for automatic expungement for people who graduated from Recovery Court was passed. At the time each of these laws were passed, they held promise of transformation for people previously involved with the criminal system in our State; however, three years later, the same entity that identified New Jersey a Reintegration Champion gave the Garden State an “F” for pardons and a “D” for felony relief. A disappointing assessment where the stakes involve human lives, public safety, recidivism, and generational trauma. In the 2023 report, New Jersey was recorded as passing a single law in support of reintegration. One. Single. Law.
While the New Jersey eCourts Expungement system was widely publicized to make expungements more accessible, that has been far from accurate, and the state was not prepared for the increase in applications that occurred. More specifically in 2023, the New Jersey Office of the Public Defender filed a class action lawsuit claiming the New Jersey State Police continue to disclose the criminal histories of people whose records were court-ordered to be expunged. The complaint alleges that there are 46,000 expungement orders, or 46,000 New Jersey citizens, who have been granted an expungement, but the State Police still disclose their criminal histories impacting their ability to secure housing, obtain employment, and even volunteer with organizations their children participate in. A recent publication by the ACLU of New Jersey in 2023, Decarcerating New Jersey: A Transformative Vision of Justice, also highlighted many abject failures of New Jersey’s alleged legislative advancements in support of Second Chances. For example, the report found that while New Jersey has an aggressive ban-the-box requirement for public and private employment, there are no standards or procedures for enforcement.
Expungement Rates Remain Low Despite Large Number of Recovery Court Graduates
As of January 10, 2024, according to its own statistics, there have been 10,977 successful graduates from Recovery Court since its inception in 2002, but only 4,024 expungements have been granted. That is a 36% uptake rate. Those same statistics laud that 214 mothers and fathers regained custody of their children “due to their participation in Recovery Court” but failed to note that because many of those parents will not receive an expungement, their ability to provide as parents will be severely restricted by their criminal history. Consequently, children also suffer from these failed laws, not just parents. The legislation as initially passed was so ambiguous, it prevented many parents from receiving expungements upon successful graduation. A 2011 Recovery Court (then “Drug Court”) graduate who was denied an expungement successfully advocated to have the law changed. In 2022, the range of offenses eligible for expungement upon successful discharge from Recovery Court was expanded by A4771. This advocacy effort took three years and still, over a year after being granted an expungement, the State Police were still disclosing her criminal record.
In New Jersey, a felony conviction has an astounding 1,079 collateral consequences. Most of these limit a person’s ability to secure stable employment. Many impact a person’s ability to secure safe housing. It is well known stable employment and housing are critical to wellness and lowering rates of recidivism. A recent seminal study conducted with respect to Michigan’s expungement system demonstrated that people who receive an expungement have extremely low subsequent crime rates, and in fact compare favorably to the general population.This finding refutes a common public safety objection to expungement laws. Next, the data from Michigan provided evidence that people who received an expungement experience “a sharp upturn in their wage and employment trajectories; on average, within one year, wages go up by over 22% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and minimally employed people finding steadier or higher-paying work.” Finally, the study showed that among those people in Michigan who are legally eligible for expungement, only 6.5% obtain an expungement within five years of eligibility. Similar to Michigan, the New Jersey Clean Slate legislation required a task force to be formed to study and track New Jersey’s law; however, research has not revealed the findings of this legally mandated task force. Consequently, New Jersey has very little data or evidence about the impacts made from changes to its criminal justice or expungement system.
Governor Murphy’s State of the State
In light of New Jersey’s record on incarceration and its laws and policies on evasive second chances, it was curious that Governor Murphy did not specifically address the state’s current mental health and substance use disorder crisis (both of which are significantly exacerbated by incarceration), but he did mention “the failed War on Drugs,” reform to our inequitable criminal justice system, and clemency in his 2024 State of the State speech. Yet Governor Murphy is the first governor since Governor McGreevey who did not issue a single pardon in his entire first term. To be more specific, in his 2024 State of the State speech, Governor Murphy promised to announce a new clemency initiative in the upcoming months which he vowed would “ensure we live up to our promise as the state for second chances.” Respectfully, while clemency would be a welcomed step, New Jersey will need much more to live up to this moniker.
The ACLU of New Jersey released a very moving piece after Governor Murphy’s speech. The article referred to categorical clemency and aptly described it as a “beacon of hope.” The article noted that 3 out of 4 people incarcerated in New Jersey (9,500 people) were sentenced under mandatory minimum sentencing laws, often criticized for ignoring mitigating factors and disproportionately targeting people of color. New Jersey has a “moral responsibility” to grant categorial clemency to this population in New Jersey, the author of this poignant article concluded.
The term ‘second chances’ is frequently spoken but rarely embraced. Eduardo Macedo said that “[t]rue redemption is seized when you accept the future consequences for your past mistakes.” Nowhere is that concept of redemption truer than in New Jersey, with one caveat. In New Jersey, and America, most people who become involved in the criminal system do not become so because of ‘mistakes’ or ‘choices.’ Many people become ensnared in the criminal system because of failed policies and laws, such as the War on Drugs, which has criminalized a public health crisis for a better part of a century. According to the Bureau of Justice Statistics, nearly 37% of people in state and federal prisons (14%) and 44% of people incarcerated in jails reported a previous mental health disorder diagnosis. More than half of people in state and federal prisons (53%) and 45% of people in federal prisons and jails reported symptoms consistent with a substance use disorder in the year prior to incarceration. Punitive consequences for health conditions cannot, in any state or country, be couched as redemption, a clean slate, or a second chance. To lead the nation as a true Reintegration Champion, the Garden State must commit to oversight of legislative reforms, addressing social and racial inequities, and reckoning with the far-reaching impact of incarceration on its citizens and communities.