The bills in the Clean Slate legislation widen the expungement process to include hundreds of thousands of people who had been excluded from it and also automate that process in many cases. However, the bills also contain terms that can be confusing. For instance, many bills refer to “assaultive crimes” without giving a clear definition of what those are. Others mention “serious misdemeanors,” again without offering a definition. In another bill, a new class of convictions called “crimes of deception” has been created.
This blog series will offer some quick, everyday definitions of these terms. These definitions are intended to give you a general guideline about what sorts of convictions might fall under the definitions. However, if you want to be certain whether a particular conviction on your own record fits one of these definitions, we urge you to consult someone with legal qualifications.
Several bills in the Clean Slate package make a distinction between two classes of misdemeanors: general misdemeanors and “serious” misdemeanors. However, nowhere in the bills is a definition or description of serious misdemeanor given, which can lead to confusion for people wondering whether the Clean Slate proposals would cover themselves or their loved ones.
House Bill 4980 (Automatic expungement)
- Serious misdemeanors are not eligible for automatic expungement.
House Bill 4983 (Wait times for expungement)
- People can petition a court for the expungement of one serious misdemeanor after five years, and for subsequent misdemeanors after seven years from the date of imposition of the sentence or the date of release from prison, whichever is later.
Without a definition, however, it can be difficult to guess whether any particular misdemeanor could be classified as serious or not. Misdemeanors are a large class of offenses ranging from things that sound relatively minor, such as littering or graffiti, to much more significant charges like aggravated assault, embezzlement and negligent homicide.
First, what is a misdemeanor?
Before answering what a serious misdemeanor is, it would be helpful to know what a misdemeanor is in the first place, and how they differ from felonies.
Felonies, misdemeanors and civil infractions are names for different violations of the law in Michigan, and each term indicates the kind of sentence that may be imposed on someone who breaks such a law. For instance, many traffic violations, such as speeding five miles over the speed limit or failing to signal a lane change, are civil infractions. That means that you can receive a ticket if you fail to observe the law, but people don’t face incarceration for breaking those laws.
The offenses bearing the most serious punishments are felonies. By definition, a felony is any offense that can bring a punishment of a year or more in state prison. That doesn’t mean that a case will ultimately result in a guilty verdict or that a judge will impose a sentence of a year or more — it simply means that the sentencing guidelines for the offense make a sentence of at least one year possible. It’s estimated that there are about 1,200 felonies in Michigan. Some, like the Class A felony first-degree murder, carry a mandatory life sentence without the possibility of parole. Others — such as the Class H offense of using a fake ID card — carry the possibility of a jail sentence only or an alternative such as probation, treatment or electronic monitoring from home.
Between civil infractions and felonies are misdemeanors — more serious than civil infractions because they bear the possibility of incarceration, but with shorter sentences than a felony. There are about 1,900 misdemeanors on the books in Michigan. Misdemeanors carry incarceration terms of up to one year, meaning they are generally served in jail, not prison. But people convicted of a misdemeanor can also be sentenced to treatment, probation or other alternative sentences.
Also, some offenses — such as drunk driving or domestic violence — can be prosecuted as a misdemeanor the first time someone is charged, and as a felonies if the person receives subsequent charges for the same kind of offense.
What makes a misdemeanor serious?
But none of this yet explains what makes an offense a “serious misdemeanor” as opposed to a simple misdemeanor.
In providing analysis for the Clean Slate legislation, the nonpartisan House Fiscal Agency offered the following definition:
Serious misdemeanor as defined in section 61 of the William Van Regenmorter Crime Victim’s Rights Act includes a wide range of misdemeanor offenses and substantially similar local ordinances such as domestic violence and assault, breaking and entering, child abuse in the fourth degree, certain firearm violations, injuring a worker in a work zone, and certain drunk and drugged driving offenses, among other offenses.
The referenced list in the Van Regenmorter Crime Victim’s Rights Act is at the end of this post.
We understand that the classification of offenses can make legislation confusing and frustrating. We would like to see Clean Slate legislation be as strong as it can be and apply to as many people as possible. Restrictions placed on serious misdemeanors makes it more difficult for many people to access relief offered by Clean Slate.
Expungements are critically important for Michigan because they help both people who have been involved in the justice system, help families and make communities safer. Clearing a record makes it easier for people to find a good job and secure housing after incarceration. That, in turn, brings stability and economic security to families. Finally, formerly incarcerated people who have received an expungement are much less likely to return to prison, indicating that expungement is linked to improved community safety.
For these reasons and more, we will continue to expand expungement opportunities and to break down barriers to successful re-entry for formerly incarcerated people in Michigan.
According to the Van Regenmorter Crime Victim’s Rights Act, a “serious misdemeanor” means one or more of the following
- A violation of section 81 of the Michigan penal code, 1931 PA 328, MCL 750.81, assault and battery, including domestic violence.
- A violation of section 81a of the Michigan penal code, 1931 PA 328, MCL 750.81a, assault; infliction of serious injury, including aggravated domestic violence.
- A violation of section 115 of the Michigan penal code, 1931 PA 328, MCL 750.115, breaking and entering or illegal entry.
- A violation of section 136b(7) of the Michigan penal code, 1931 PA 328, MCL 750.136b, child abuse in the fourth degree.
- A violation of section 145 of the Michigan penal code, 1931 PA 328, MCL 750.145, contributing to the neglect or delinquency of a minor.
- A misdemeanor violation of section 145d of the Michigan penal code, 1931 PA 328, MCL 750.145d, using the internet or a computer to make a prohibited communication.
- A violation of section 233 of the Michigan penal code, 1931 PA 328, MCL 750.233, intentionally aiming a firearm without malice.
- A violation of section 234 of the Michigan penal code, 1931 PA 328, MCL 750.234, discharge of a firearm intentionally aimed at a person.
- A violation of section 235 of the Michigan penal code, 1931 PA 328, MCL 750.235, discharge of an intentionally aimed firearm resulting in injury.
- A violation of section 335a of the Michigan penal code, 1931 PA 328, MCL 750.335a, indecent exposure.
- A violation of section 411h of the Michigan penal code, 1931 PA 328, MCL 750.411h, stalking.
- A violation of section 601b(2) of the Michigan vehicle code, 1949 PA 300, MCL 257.601b, injuring a worker in a work zone.
- A violation of section 617a of the Michigan vehicle code, 1949 PA 300, MCL 257.617a, leaving the scene of a personal injury accident.
- A violation of section 625 of the Michigan vehicle code, 1949 PA 300, MCL 257.625, operating a vehicle while under the influence of or impaired by intoxicating liquor or a controlled substance, or with an unlawful blood alcohol content, if the violation involves an accident resulting in damage to another individual’s property or physical injury or death to another individual.
- Selling or furnishing alcoholic liquor to an individual less than 21 years of age in violation of section 701 of the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1701, if the violation results in physical injury or death to any individual.
- A violation of section 80176(1) or (3) of the natural resources and environmental protection act, 1994 PA 451, MCL 324.80176, operating a vessel while under the influence of or impaired by intoxicating liquor or a controlled substance, or with an unlawful blood alcohol content, if the violation involves an accident resulting in damage to another individual’s property or physical injury or death to any individual.
- A violation of a local ordinance substantially corresponding to a violation enumerated in subparagraphs (i) to (xvi).
- A violation charged as a crime or serious misdemeanor enumerated in subparagraphs (i) to (xvii) but subsequently reduced to or pleaded to as a misdemeanor. As used in this subparagraph, “crime” means that term as defined in section 2.