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It may become easier to clear criminal history in Michigan

Detroit Free Press - 9/20/2019

Sep. 20--Michigan could become one of a few states that automatically sets aside certain convictions for those who stay out of trouble.

The proposed change is noteworthy because the current process to seal a criminal conviction is costly and cumbersome, advocates for criminal justice reform say, preventing many who are eligible from applying.

A new bill would create an automated system to wipe clean certain misdemeanor and felony convictions that weren't assaultive crimes. Eligible people who remain crime-free for 10 years would see their records expunged without having to ask the court to seal their convictions. The bill comes at a time when proposals for automated record clearing, called "clean slate" legislation, are garnering interest across the country.

Two states, Pennsylvania and Utah, have automatic expungement laws on the books. California could become the third thanks to a bill sent to the governor last week.

Of the people in Michigan who qualify, only 6.5% have their records expunged within five years of becoming eligible, according to a 2019 study out of the University of Michigan Law School. And that's not because most requests are denied. More than 90% of people who are eligible for expungement don't apply, "and most of them will never apply," said Sonja Starr, a U-M law professor and co-author of the study.

The study found that those who do go through the process see higher earnings and low recidivism rates.

Starr and some criminal justice advocates say Michigan's clean slate bill signifies progress but doesn't go far enough.

It's part of a larger bipartisan legislative package, introduced in the House Chamber this week, that would expand the number and types of crimes that could be sealed from public view. The House Judiciary Committee is scheduled to hear public testimony about the bills on Tuesday.

'Significant step forward'

Michigan's current expungement process requires that people ask the court to have their records sealed. This involves a $50 fee and nearly a dozen steps that include getting fingerprints taken, getting the application notarized, and mailing copies to prosecutors and law enforcement.

Applicants then have a hearing in front of a judge, who can consider the wishes of the prosecutor and victims but has the final say on whether to seal the conviction.

Michigan's clean slate bill -- introduced by Rep. Eric Leutheuser, R-Hillsdale -- would establish automatic record sealing, but it wouldn't apply to every case. It would include misdemeanors and felonies with the following stipulations:

-- None of the convictions were for an assaultive crime

-- None were a serious misdemeanor, a classification of crimes that includes offenses such as stalking, indecent exposure, and breaking and entering

-- The offenses had a maximum punishment of less than 10 years in prison

-- 10 years have passed since the end of the person's monitoring by the criminal justice system (prison or jail term, parole or probation -- whatever happened last)

-- The individual has paid restitution

-- Limited to two felonies or four misdemeanors

Proponents of expungement reform say Michigan's current law is too narrow. The law allows for people to have one felony or two misdemeanors set aside five years after the end of their monitoring by the justice system. Applicants with one felony and up to two misdemeanors can have the felony expunged. Those with up two misdemeanors and no other offenses are eligible to have both convictions expunged. Among the convictions that don't qualify are offenses with a maximum punishment of life in prison, most charges of criminal sexual conduct, and traffic offenses.

In addition to introducing automatic record sealing in Michigan, the bill package would make people with multiple with felonies and misdemeanors -- including some assaultive crimes and low-level traffic offenses excluding drunken driving -- eligible to apply for expungement. The waiting period would vary from three to seven years and depend on the convictions. People with misdemeanor marijuana offenses that would now be legal under the state's 2018 recreational marijuana law would need to petition the courts for expungement.

Additionally, the bill package offers leniency for a string of similar crimes committed during a 24-hour period, viewing multiple convictions as one offense for the purpose of expungement.

The clean slate package could help improve access to jobs and housing for hundreds of thousands of Michiganders, according to Safe & Just Michigan, an organization that advocates for policies reducing incarceration. John Cooper, the group's executive director, said the bills are a "significant step forward."

"That it's being done in a bipartisan way is encouraging," Cooper added.

'Who is it leaving behind?'

Megan French-Marcelin of JustLeadershipUSA, which spearheaded listening sessions about expungement among people with criminal convictions, said the bill "would have looked remarkably worse had communities not been engaged in the process of active listening and engagement."

But French-Marcelin said the clean slate bill sets arbitrary limitations that would "undermine the purpose of automatic expungement."

Communities of color will be left out by limiting the number of misdemeanors, requiring that restitution be paid, and excluding convictions with a maximum penalty of 10 years or more, she said.

"The point is not to say this bill is crap," French-Marcelin said, "but rather, who is this bill impacting and who is it leaving behind? And what are the consequences of that for the most criminalized communities across Michigan?"

Starr, the U-M law professor, said she would want to see the 10-year waiting period for automatic expungement shortened. She would also do away with limitations on the number of offenses eligible for automatic record sealing.

"Having limits based on the numbers are a little arbitrary because ... you could have one person with three felonies that are less serious than one (felony)," she said. "That said, it's a big improvement."

Unlikely allies

It was the support of "strange bedfellows" that propelled the nation's first clean slate law in Pennsylvania and subsequent legislation in Utah, said Rebecca Vallas, senior fellow at the left-leaning Center for American Progress. Vallas, a former legal aid attorney, co-authored a report first recommending the automatic sealing of records in 2014.

In the years since, the clean slate movement has united advocacy groups that agree on few other policies.

Observers say conservatives see criminal justice reform as an opportunity to lower costs and simplify bureaucracy. They say it's also about doing what's right.

"I think it's not a left issue, it's not a right issue, it's just a correct issue to be in support of," said Sarah Anderson, federal affairs manager at FreedomWorks, a libertarian advocacy group.

Pennsylvania's landmark clean slate legislation automates the expungement of nonviolent misdemeanors after 10 years if the former offender doesn't have a subsequent conviction. It passed in 2018 with a near unanimous vote after amassing support from Philadelphia Eagles players, chambers of commerce, the Koch brothers-backed Americans for Prosperity, and others.

"It truly was a coalition, and I've never seen anything quite like it," Vallas said. "I think that's what really paved the way for the national bipartisan support that we've seen following Pennsylvania's wake."

Logistics of clean slate

In Pennsylvania, courts began sealing a backlog of 30 million criminal cases with 40 million offenses in June.

A team of developers and attorneys created an algorithm to identify eligible offenses. The system flags cases that are then sent to state police for verification. Judges also get a chance to review the cases, said Amy Ceraso, information technology director for the Administrative Office of Pennsylvania Courts. If there are no objections, the cases are sealed from the public docket.

Officials expect to seal 100,000 offenses monthly after they move past the backlog.

"We're removing almost half of our database through clean slate from public view," Ceraso said.

Pennsylvania's law also seals records of charges that didn't result in convictions.

Leutheuser said Michigan's bills do not address non-convictions.

His proposed clean slate legislation draws from work in Pennsylvania, where Ceraso said implementation cost nearly $3 million in staff time and equipment upgrades.

Lawmakers haven't named an estimated price tag for clean slate in Michigan. The bill calls for a two-year implementation period.

"If there's good policy, then we should be able to make the appropriations available," Leutheuser said, adding that he anticipates that outside groups will get involved, particularly with the IT systems.

Public safety

The research by Starr and fellow University of Michigan Law Professor J.J. Prescott highlights positive results from criminal record expungement.

The professors found that Michiganders who get their records cleared see a sharp improvement in their earnings. Wages increase by 25% within two years of expungement, according to the study.

Their research also found that people who get their records sealed have low recidivism rates: Just over 4% of people are convicted of new crimes within five years of expungement, and 0.6% are convicted of violent offenses.

David Guenthner, senior strategist for state affairs at the Mackinac Center for Public Policy, applauded the bills and said the legislation would provide a "clear incentive" for people with criminal histories to "model upstanding behavior."

"Public safety is enhanced when those who have committed crimes don't repeat or escalate that behavior," Guenthner said in a statement.

The Prosecuting Attorneys Association of Michigan has worked with legislators and stakeholders to expand the current expungement law and broadly supports the bills, said William Vailliencourt, the Livingston County Prosecutor and association president.

A common objection to expungement is that the public, such as employers and landlords, has a right to know about someone's prior offenses for safety reasons.

Starr said she's not aware of any criminology research that suggests someone's potential for committing a crime is increased by getting their record side aside.

"Whatever the risk is that somebody poses, it's generally greater if they don't have good access to jobs and housing," she said.

Angie Jackson covers the challenges of formerly incarcerated citizens as a corps member with Report for America, an initiative of The GroundTruth Project. Contact Angie: ajackson@freepress.com; 313-222-1850. Follow her on Twitter: @AngieJackson23

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