A Brief History of Expungement in Michigan

A Brief History of Expungement in Michigan

2018-08-23T10:23:06+00:00August 22nd, 2018|Categories: Blog, Reentry|

A person’s criminal history can unfairly hold them back from important life opportunities in employment, housing or other areas for years — and even decades — after they have paid their debt to society.

Michigan has recognized this for the past 50 years. Since 1965, Michigan law has permitted someone to apply to expunge a criminal conviction from their public record after five years has passed from the end of their sentence. Expungement, also referred to as a set aside, removes the public record of a criminal conviction so that it does not appear in a background check or criminal record search. Law enforcement does retain a record for private use.

Unlike many states, Michigan even permits a broad range of felony convictions to be expunged. A few categories, such as life offenses, criminal sexual conduct, and traffic offenses are not eligible. However, historically, it has also sharply limited who can apply for expungement based on how many other convictions they have. This blog discusses the evolution of Michigan’s views on expungement over time.

For most of its history, the expungement law was static and quite narrow. Only someone with a single criminal conviction — and a spotless criminal record apart from that — could even apply to set aside that conviction. A single misdemeanor — no matter how old — took expungement off the table.

However, over time, it became apparent that the one-offense limit was unduly restrictive and arbitrary, and legislators began to work to expand its scope.

The law was first expanded in 2011, when the Legislature amended the expungement statute to permit a person to set aside an offense if they had up to two other minor offense[s] — misdemeanors punishable by no more than 90 days or a $1,000 fine and committed before age 21.

In exchange for expanding who can apply for expungement, the bill sponsors agreed to restrict what convictions are eligible by adding possession of child pornography to the list of convictions that cannot be expunged.

This expansion of eligibility addressed arguably the most sympathetic cases — when a person has a limited record of minor offenses from when they were young. But it was a fairly narrow expansion of eligibility that left many people in similar situations — with a misdemeanor committed long ago that did not meet the definition of minor offense — behind. This soon led to another push to expand in the next legislative session.

The next expansion to Michigan’s expungement laws came in 2014. As in 2011, the price of expanding the scope of the statute removed certain offenses from eligibility for expungement — this time, 4th degree criminal sexual conduct, child abuse, felony domestic violence with a prior conviction and human trafficking.

The 2014 amendments also put additional restrictions in place. One measure stated that a conviction discharged through successful participation in a diversion program (e.g. mental health court) counted as a misdemeanor for the purposes of the two-misdemeanor limit. Another limited a person whose application for expungement had been denied from reapplying for three years.

Minor changes to the statute have been made since 2014, and numerous bills to further expand its scope have been introduced, but further expansion of the expungement statute has not received serious legislative attention in Lansing.

Today, it is widely believed that the one felony/two misdemeanor limit — much like the original limit — is narrow and arbitrary, and should be expanded or eliminated entirely. This is particularly because whether to grant an expungement remains discretionary with a judge, who can consider the extent of the person’s criminal record and their post-sentencing conduct. And prosecutors — and in certain cases, crime victims — have the right to appear at the hearing on the application to object.

Because of this, criminal justice advocates, business community leaders and others are exploring the possibility of expanding access to expungement and making the process simpler, particularly for lower-level offenses. We will discuss specific proposals for reform in a future blog.

Read the first blog in this series: Clearing records paves the way to jobs, housing, and education