Overdue Expungement Legislation Signals Michigan’s Commitment to Criminal Reform and Recognition of Racial Inequality

By Meghan Patero Associate Editor, Vol. 26

2020 has drawn attention to the glaring consequences of racial inequality within the criminal justice system.[i] And while efforts to enact policies aimed at decreasing the number of people who enter the criminal justice system are important, we must also not forget about those who have already exited the system. For those who have served out their convictions, the impact of a criminal record will haunt them well beyond the end of their incarceration.[ii]

The far-reaching impacts of criminal convictions are often neglected when criminal justice system reforms are discussed.[iii] And in turn, so too are its collateral consequences.iii A criminal record, which is an official documented history of all prior criminal convictions and arrests is a public record accessible by anybody.[iv] It follows an individual beyond the end of their incarceration because a criminal conviction of any type “carr[ies] serious financial, personal, and social costs.”[v] These collateral consequences include being prohibited from voting, being ineligible for certain employment positions, and being barred from reuniting with children.[vi] Even after an individual is considered “fully rehabilitated” and readjusted to society, the existence of a criminal conviction comes with permanent consequences.iii

Well, maybe not always permanent. You see, a process called expungement exists. An expungement is a legal process which an individual undergoes to set aside or seal their conviction.iv This effectively erases the criminal conviction from one’s criminal record.iv

Neat right? I think so too. Currently, in Michigan (and the requirements and rules depend on your jurisdiction), expungement is only available to individuals with a limited criminal record (one felony or two misdemeanors) and who are at least five years out from the end of their sentence.[vii]

Now, regardless of your opinions on expungement and its requirements, we should remember that people of color are significantly more likely to encounter the criminal justice system.v Not once, but several times.v A criminal record of three misdemeanors? Automatic disqualification for expungement.vii A criminal record of two low level felonies? Automatic disqualification for expungement.vii This is currently the law in Michigan.

However, Michigan’s expungement law will soon change. A package of six bills collectively called the Clean Slate Legislation was signed into law by Governor Gretchen Whitmer on October 12, 2020.[viii] Introduced on September 17, 2019, this legislation passed the House on November 5, 2019 and the Senate on September 23, 2020.[ix] Although the legislation is composed of six bills, House Bill 4980 and 4984 dramatically impact Michigan’s criminal justice system the most. [x]

The most significant change results from the Clean Slate Bill (House Bill 4980).x The Clean Slate Bill creates a system that will automatically expunge misdemeanors seven years after sentencing, and felonies 10 years after sentencing or release from incarceration (whichever comes later), without requiring individuals to apply for an expungement.x Individuals can automatically expunge up to 2 felonies and four misdemeanors.x Violent crimes, “crimes of dishonesty” (ie forgery/fraud), crimes punishable by more than 10 years in prison as well as other serious crimes are not be eligible for automatic expungement.x This automatic expungement system becomes operational in two years, on October 12, 2022.viii

The other significant change is the expansion on the number of convictions eligible for expungement via application (House Bill 4984) (as opposed to the automatic process).x The number would broaden to three felonies and an unlimited amount of misdemeanors.x There are exceptions for assaultive crimes and crimes punishable by more than years in prison.x

Other changes include:

• decreasing the waiting time to apply for expungement – House Bill 4983
• treatment of felonies or misdemeanors from the same 24 hour period as one conviction for expungement – House Bill 4985
• streamlined process for multiple marijuana misdemeanors – House Bill 4982
• preventing certain crimes for expungement eligibility – House Bill 4981 (ie DUI, sexual assault, crimes that may bring a life sentence, etc.)

An automatic expungement system and expansion on the number of convictions eligible for expungement via application is a game changer.x Michigan is the fifth state for automatic expungement of misdemeanors and the first state to include low level felonies in an automatic expungement system.x

More importantly, an automatic system and expansion eligibility allows people of color who have been unfairly discriminated against to finally do away with the collateral consequences of a criminal conviction.v In Detroit alone, Mayor Duggan estimates that this legislation will double the number of Detroiters – to 160,000 – who will be eligible for expungement.x In Wayne County, where there exists a larger population of people of color, the eligibility of individuals will similarly double, from 152,000 to 358,000.x

These are important numbers when one considers that “only 6.5% of people eligible for expungement actually [apply] within five years of becoming eligible.”x An expungement eliminates those collateral consequences stemming from a criminal conviction. Individuals can now earn higher wages and apply for better jobs. Individuals can now execute their constitutional right to vote. Individuals will no longer be as burdened with the stigma of a criminal record – rather, they will be treated as people who have fully done their time.

For people of color – particularly Black people – in Michigan, this criminal justice reform passively returns a great deal of control and possibilities. This won’t forgive the atrocities perpetuated by the criminal justice system daily, but this’ll be a first step in recognizing fault. Given the state’s diversity and potential, the existence of a broken criminal justice system hinders Michigander’s ability to thrive – much more has to be done to directly address the racial inequality within our criminal justice system. As recognized by Michigan League for Public Policy President Gilda Jacobs, “Our justice system has been stacked against Black and Brown people and individuals with lower incomes, and a criminal record has unfortunately continued those consequences in perpetuity,” so the passing of the Clean Slate Legislation is “a significant [nod] for racial equity and justice.”viii

[i] Arian Campo-Flores and Joshua Jamerson, Black Lives Matter’s Years of Pressure Paved Way for Sudden Police Overhaul, WALL ST. J. (June 18, 2020, 5:30 PM), https://www.wsj.com/articles/black-lives-matters-years-of-pressure-paved-way-for-sudden-police-overhaul-11592516422.html.

[ii] Matthew Friedman, Just Facts: As Many Americans Have Criminal Records as College Diplomas, BRENNAN CENTER (Nov. 17, 2015), https://www.brennancenter.org/our-w, ork/analysis-opinion/just-facts-many-americans-have-criminal-records-college-diplomas.

[iii] Gary Fields and John R. Emshwiller, Fighting to Forget: Long After Arrests, Criminal Records Live On, WALL ST. J. (Dec. 25, 2014 10:30 PM), https://www.wsj.com/articles/fighting-to-forget-long-after-arrests-records-live-on-1419564612.

[iv] Kenny Lo, Expunging and Sealing Criminal Records, AMERICAN PROGRESS (Apr. 15, 2020 9:05 AM), https://www.americanprogress.org/issues/criminal-justice/reports/2020/04/15/483264/expunging-clearing-criminal-records.

[v] Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2020, PRISON POLICY INITIATIVE (March 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html.

[vi] Catherine E. Forrest, Collateral Consequences of a Criminal Conviction: Impact on Corrections and Reentry, CORRECTIONS TODAY, January/February 2016, at 30.

[vii] MICH. COMP. LAWS § 780.621 (2017).

[viii] Riley Beggin, Whitmer signs Clean Slate Michigan, allowing automatic felony expungement, BRIDGE MICHIGAN (Oct. 12, 2020), https://www.bridgemi.com/michigan-government/whitmer-signs-clean-slate-michigan-allowing-automatic-felony-expungement.

[ix] HB 4980, Mich. Leg., 2019 Sess. (Mi. 2019).

[x] Riley Beggin, Bills to Wipe Criminal Records Clean Pass Michigan Legislature, BRIDGE MICHIGAN (Sept. 24, 2020), https://www.bridgemi.com/michigan-government/bills-wipe-criminal-records-clean-pass-michigan-legislature.