In a move not common with former Attorney Generals, AG Dana NESSEL personally appeared before the House’s Judiciary Committee today to support legislation widening the universe of reformed offenders who can get convictions expunged off their records.

The Democratic Attorney General wasn’t just making a courtesy call. She didn’t read off a sheet of talking points and call it a morning. Nessel dug into each of the six bills on the agenda and gave specific recommendations and commentary on each one.

For example, Nessel suggested a substitute to Rep. Luke MEERMAN‘s (R-Polkton Twp.)  HB 4982 that would allow more people to have their marijuana-related convictions wiped away.

“The proposed House Bill does not cover low-level felony marijuana offenses and those I would deem to be less than 5 kilograms or fewer than 20 plants,” she testified. “Those offenses . . . were also meant to be legalized by the passage of Proposal 1 in November of last year.” (See “Voters Light Up Prop 1, Pass Measure Legalizing Recreational Marijuana,” 11/6/18.)

Her version, she argued is something the state’s Prosecuting Attorneys Association of Michigan (PAAM) should support because it gives them the ability to argue against expungement when they deem appropriate (See “Bills Expand Expungement Process For Old Convictions,” 9/9/19). As it turned out, she was right.

PAAM President William VAILLIENCOURT Jr., who is Livingston County prosecutor, agreed, noting, “Prosecutors want to make sure any changes that are done are done in a way that protects public safety and preserves the ability of prosecutors and victims to have input into the process.”

Nessel suggested creating a non-public registry available to law enforcement that would be maintained by the Michigan State Police.

Vailliencourt said PAAM supported that recommendation, noting that it is important for law enforcement to know who has a prior conviction expunged and that it can be used for charging decisions and sentencing.

Both Nessel and Vailliencourt expressed concern about  HB 4980’s automatically setting aside convictions after 10 years.

Nessel questioned who would ensure the convictions are automatically set aside. She said it is common knowledge in law enforcement that the Law Enforcement Information Network (LEIN) is not accurate.

LEIN is a statewide computerized information system that provides criminal justice agencies with information on a defendant’s criminal history. The information comes from local courts.

“I’m worried about millions and millions of dollars of lawsuits against the state,” Nessel said. “We could potentially have something in the bill that’s added that allows for immunity to the state in the event that a conviction is to fall off after a certain number of years . . . Please know it’s not the state’s fault; it’s often the District Court or Circuit Court who did not convey the proper information to the state.”

John COOPER, executive director of Safe and Just Michigan, countered LEIN is already a nonpublic registry of people’s criminal history.

But, Vailliencourt sided with Nessel, saying it’s “no secret LEIN is not necessarily accurate” and it doesn’t indicate whether a defendant has out-of-state convictions. He said that can make it problematic to determine a person’s eligibility for expungement.

Two men with criminal histories in Michigan also testified in support of the bill package.

Rodney McLAURIN-BEY told the committee that his felony conviction from about 30 years ago hinders him today from getting housing and keeps him on the “low-end of a paying job.”

“I would like the opportunity to be able to get a job without a felony being a problem,” said McLaurin-Bey, whose appeals court opinion indicates his conviction was for a sex assault. “We have tried it one way for so long. Let’s try it another way . . . We all have one life and we’ve made mistakes in our life and we paid for the mistakes. Give us a chance to reverse it.”

Frank RODRIGUEZ said he wasn’t on a crime spree when he was charged in 1994 with six felonies for conspiring to deliver more than 650 grams of a controlled substance, and he was subsequently sentenced to life in prison. He said the crimes occurred between September 1990 and March 1994, but law enforcement grouped individual incidents into one to charge him with conspiracy to deliver.

A man housed three cells down from Rodriguez, however, was given a five-year sentence for the same crime.

“I want you guys to understand the disparity in the way sentencings are and the way expungement should look at everybody’s sentence,” said Rodriguez, whose sentence was commuted in 2010 by then Gov. Jennifer GRANHOLM. “I want a chance to go in front of a judge and say, ‘Look.'”

In response to the other bills, Nessel:

– Objected to the number of exemptions listed in  HB 4981, which allows certain traffic offense committed by a person without a commercial driver license to be set aside. She suggested removing some exemptions, calling it “a little draconian” to never allow some offenses to be expunged.

– Objected to  HB 4983’s proposal to change the time period an applicant must wait to petition to set aside the conviction from five years to three years. She said three years is not enough time to show whether a person has become a law-abiding citizen, especially when the crime involved violence, assault or threatening behavior.

– Found  HB 4984 “confusing” and she expressed concerns about whether people trying to expunge their records without assistance from an attorney would understand the process. She also suggested that the AG’s office become the place people call for help with questions — with “appropriate additional funding.”

– Strongly supported  HB 4985, which would expunge multiple felonies arising out of the same criminal transaction, but she said it “requires important edits,” including defining “similar intent” and perhaps rewording it to “arising out of the same transaction.”

Nessel said  HB 4985 also needs to define “weapon,” which can be anything from a stiletto pump to a sack of grapefruit, and in one case Kool-Aid.

“The ruling of the court is that even though it’s sugar, water and red dye, when thrown in a person’s eyes that constituted a weapon,” Nessel said.


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Release date: October 9, 2019