In our last blog post on expungement in Michigan, we discussed current reform proposals and made some recommendations about ways in which eligibility for expungement should be expanded. We now turn to our recommendations for process-related reforms.
The Expungement Process in Michigan
As we noted in an earlier post in this series, Michigan’s expungement process was created in the 1960s, and hasn’t changed much since then. As a result, the statutory process is premised on understandings of both technology and social science that are no longer valid.
For example, in the 1960s administrative processes, record keeping and interagency communication were all paper-based – it wasn’t possible to have a paperless expungement process. That’s not the case now.
It is technologically possible to make the expungement process paperless (including electronic fingerprints), and even to automate the expungement process entirely. All of these improvements would also reduce the cost and processing time for expungements and increase access and accessibility for those that would like to apply.
Assumptions about re-offense rates and what people deserve the opportunity to expunge their records are also worth re-examining. We now know that people who do not reoffend within a few years are unlikely to be rearrested. For example, research shows a person who has lived 10 years without a conviction is no more likely than the general public to commit a crime. Yet historically, expungement has been viewed as a privilege that is granted through judicial discretion, and expungement policy has been focused on whether the person is “deserving” based on a limited criminal history rather than whether the person is likely to reoffend.
People suffer grave consequences from criminal records — in employment, housing and access to credit and post-secondary education — and the challenges posed by the current process. We need to re-evaluate the costs and benefits of our current expungement policy. Many people who have turned their lives around are being held back by criminal records that do not reflect their current likelihood of re-offense. And this has ripple effects for their families and communities that should concern us all.
Reforms to improve the expungement process
The current expungement process has a couple basic problems: (1) it puts the burden on the individual with a criminal history to know the law, apply, and correctly navigate the process; and (2) the process is time-consuming and expensive. It requires the applicant to obtain a certified record of the conviction, send copies of the application to the local prosecutor, the Office of the Attorney General, and send a copy with a set of fingerprints and a $50 fee to the Michigan State Police. This process generally takes six months or more to complete, and many people require legal assistance to do so.
And even if a person is eligible and fills out all the paperwork correctly, whether to grant the application remains discretionary with the court, which must find that “the circumstances and behavior of [the] applicant … warrant setting aside the conviction” and that setting aside is “ consistent with the public welfare.” This means judges across the state hold a significant amount of discretion in approving the person’s request for expungement.
As a result, the vast majority of people who are currently eligible for expungement—an estimated 95 percent — don’t even apply, and there are hundreds of thousands of people in Michigan that could benefit from it that fail to do so. And the benefits are significant: A working paper published by researchers at the University of Michigan recently found that people who have had a conviction set aside are 11 percent more likely to be employed and see a 22 percent increase in income.
There are simple improvements that can be made to the expungement process that would vastly expand access to these benefits.
The Pennsylvania Model: Automatic Expungement After 10 Years
One current reform proposal, recently enacted in Pennsylvania, and now under discussion in Michigan, is to make expungement automatic after 10 years — at least for most misdemeanors and civil infractions.
This reform is appealing because it would eliminate both the opt-in problem and the barriers presented by the current process.
Other Process-Related Reforms
There are some ways in which Michigan’s expungement process is different than Pennsylvania’s: (1) Pennsylvania does not allow felony convictions to be set aside; Michigan does, as long as the person and conviction are otherwise eligible; (2) for assaultive crimes and “serious misdemeanors” the crime victim is entitled to notice of the application and an opportunity to appear at the expungement hearing. “Serious misdemeanors” include crimes such as assault and battery, indecent exposure, and stalking.
These differences are sticking points for making expungement automatic in Michigan, and we believe the path forward is to keep the current discretionary process in place for convictions where victim notification is required and make expungement of all other convictions automatic after 10 years. However, there are numerous ways this process could be improved, including:
- Making the process paperless (including records of conviction and fingerprints) and web-based;
- Automate notice to the prosecutor, the office of Attorney General, and the State Police;
- Reduce or eliminate fees; and
- Reduce processing times.
We will be working on legislation to implement all of these improvements in the 2019-20 legislative session. We hope you will join us in advocating for these important reforms.
Read the first blog in this series: Clearing records paves the way to jobs, housing, and education
Read the second blog in this series: A Brief History of Expungement in Michigan
Read the third blog in this series: Clean Slate in Penn state
Read the fourth blog in this series: Current reforms: Expanding the scope of expungement in Michigan