Michigan is on the cusp of major changes to the state’s expungement laws that could result in thousands of residents getting prior criminal records sealed from public view.
“Clean Slate” legislation designed to expand expungement options for people who have gone several years without committing another offense passed the Michigan Legislature with wide bipartisan support in September. The bills are now poised to become law pending Gov. Gretchen Whitmer’s signature.
If the package is signed, Michigan would join the likes of Utah, California, Pennsylvania and New Jersey in eventually allowing many low-level crimes to be dropped from a person’s public record automatically, without needing to file an application or attend a hearing.
Other provisions included in the package would open up the expungement process to low-level marijuana convictions and many traffic offenses, increase the overall number of expungements a person can receive and allow consolidations of multiple convictions that occurred in the same 24-hour time period.
The reforms won’t be up and running overnight — lawmakers included a two-year window for the state to set up a system for processing automatic expungement, and other bills in the package are written to take effect 180 days after they’re enacted.
But proponents of the legislation are hopeful the changes will ultimately make what’s currently a costly and complicated process more accessible to people who are otherwise eligible to seal their records.
“By clearing old conviction records, Michigan is creating the space for stability in the lives of many,” Robert Rooks, CEO of the Alliance for Safety and Justice, said in a statement following the legislation’s final passage.
Related: House-passed bills would let more Michigan residents clear their criminal records
What expungement does, and who is eligible
Essentially, an expungement of a person’s criminal records seals them from public view — meaning the conviction would no longer show up in a background check, but could be accessed by law enforcement officials should a person commit future crimes.
Currently, people in Michigan with one felony conviction or two or less misdemeanors for certain crimes can ask a judge to clear their record if they haven’t committed other offenses for five years or more. That eligibility kicks in five years after a person has completed any jail or prison time associated with their conviction and any subsequent parole or probation.
Under House Bill 4983, the waiting period for people to apply for expungement would range from three to seven years depending on what type of and how many convictions a person has.
Another bill in the package, House Bill 4984, would expand the number of convictions eligible for expungement. A person would be eligible to expunge up to three felonies and an unlimited number of misdemeanors, so long as no more than two of those were assaultive crimes. A person with more than one felony conviction for the same offense punishable by 10 or more years imprisonment would be limited to one felony expungement.
For purposes of expungement, multiple convictions that occurred in the same 24-hour time period could be consolidated under House Bill 4985.
Convictions not eligible for expungement include felonies with maximum punishments of life in prison, child abuse, felony domestic violence, most offenses related to criminal sexual conduct, traffic offenses causing injury or death and driving while intoxicated.
It’s unclear exactly how many Michigan residents would be impacted by the new legislation, but experts estimate it could be in the hundreds of thousands.
In Detroit alone, Mayor Mike Duggan said the bills would double the number of Detroit residents eligible for expungement to more than 160,000. He said the move would help the city’s Project Clean Slate initiative to clear records eligible for expungement “remove a major barrier to employment for thousands more Detroiters.”
“For one Project Clean Slate client, his expungement has meant going from making $10/hour to making $26/hr, for others it means going back to school to pursue a dream or career goals, for others it might mean shedding a life-long stigma, and for others still it could mean being able to chaperone their child on a field trip,” he said in a statement. “I look forward to this legislation being signed into law soon by Gov. Whitmer.”
The website Michigan Legal Help offers an interactive guide to walk Michigan residents through the process of determining whether they’re eligible for getting their criminal records expunged.
How automatic expungement would work
As things stand now, most Michigan residents who are eligible for setting aside their past criminal convictions aren’t getting them expunged. According to the Alliance for Safety and Justice, only 6.5% of people eligible for expungements are able to successfully get them.
That’s in part because expunging any past conviction under current law requires a person to apply to set aside the conviction and attend a court hearing to make their case for setting aside the records.
The process requires applicants to procure a certified record of conviction with their application, provide fingerprints to the Michigan State Police and file copies with the court where the conviction occurred, the county prosecutor, the Michigan State Police and the Attorney General’s office.
With a few exceptions, the package doesn’t fundamentally change that process, said Rep. Graham Filler, the House Judiciary Committee chair.
But under House Bill 4980, many records would be set aside automatically, bypassing the need for an application or hearing. Under the bill, eligible misdemeanors would be expunged seven years after sentencing, and eligible felonies would be set aside 10 years after sentencing or the person’s release from jail or prison.
An individual could have up to two eligible felonies and four misdemeanors automatically expunged.
Courts would have the discretion to make the record public if the individual involved doesn’t make a good-faith effort to pay restitution. The legislation also includes a process for reversing the expungement if convictions are set aside in error.
There are several exceptions to what convictions can be automatically expunged, including assaultive crimes, serious misdemeanors, offenses punishable by 10 years or more in prison, crimes that involve a minor or vulnerable adult, crimes of dishonesty or crimes that involve serious injury, death or human trafficking.
Because setting up the system will require coordination between multiple state agencies, the legislation gives state officials two years to get automatic expungement up and running in Michigan, Filler said.
Expanded access to expungement
The package also widely expands what types of convictions are eligible for expungement.
House Bill 4982 would allow a person with a marijuana conviction to petition a court to set aside one or more convictions for something that is now legal under Michigan’s legalization of recreational marijuana. Starting in 2018 after a ballot proposal legalized recreational marijuana in Michigan, possessing and using the drug became legal for those over the age of 21, subject to some limitations.
Joe Neller, chief government affairs officer for cannabis company Skymint, said everybody in the state’s growing marijuana industry has to pass a background check. Prior convictions like these can hold people back from employment.
“This is a real industry with real career opportunities. But, you know, we have to expunge some criminal records to allow some people to join the industry now that it’s legal,” Neller said.
He said the bill was a “good first step,” and Skymint is interested in supporting further criminal justice reform, particularly around the war on drugs.
A related bill, House Bill 5120, allows people to appeal or request a rehearing if they disagree with a court’s decision on their application for expunging marijuana-related convictions.
Traffic offenses that don’t involve injury or death or driving while intoxicated are also considered eligible for expungement under the package, a big change from current law.
Some lawmakers were frustrated the legislation didn’t go further. Sen. Ed McBroom, R-Vulcan, voted against the package in the Senate because it doesn’t provide a path to expungement for people convicted of driving under the influence of alcohol.
“I find that to be exceptionally unjust and unfair,” he said on the Senate floor. “We’re saying you’re a leper if you’ve got a DUI from alcohol, but everything else we can forgive.”
Where things go from here
The bills still need to be signed by Whitmer to become law.
If signed, all of the bills in the package would go into effect 180 days after being signed into law. Once enacted, officials would have a two-year window to create a system for automatic expungement.
Filler said he’s hoping to work with state officials on creating a website helping people navigate the expungement process once the legislation is signed, as one of his biggest concerns throughout the legislative process was that people weren’t taking advantage of the existing expungement system.
“Just because expansion of expungement happened and becomes law, it doesn’t mean that people will actually take advantage of it,” he said.
But he noted many people with records have been contacting his office to learn how they can get their criminal history set aside: “They’re ready. They’re chomping at the bit to take advantage of this process.”
Read more on MLive:
More Michigan residents could get criminal records expunged under House bills
Attorney General Dana Nessel has ‘serious concerns’ with House expungement bills, suggests changes
235K people could have their records expunged of marijuana charges under proposed bill