An Even Cleaner Slate

AN EVEN CLEANER SLATE:

6KeyImprovements*StillNeeded* forAccessibleExpungementProcesses

AN EVEN CLEANER SLATE:

Traffic misdemeanors should not be treated as “ new crimes” or “ new convictions” for purposes of restarting someone ’ s expungement eligibility waiting period.

Under current statutory language, having a conviction for a new criminal offense within the “applicable time period” restarts the clock for how long a person must wait to be eligible for an expungement by application (MCL 780.621d) or an automatic expungement (MCL 780.621g). Unfortunately, the “ new criminal conviction” phrase, as it is currently defined, would include things like non-DUI related, misdemeanor traffic offenses. In many instances, individuals do not even realize that the traffic offense they are facing–such as driving with a suspended license, driving without insurance, driving an unregistered vehicle, or driving with improper plates–is a literal criminal offense. This is particularly true where defense counsel or prosecutors insinuate that all a person will have to do is pay a fine if they plead guilty, without indicating that there are still collateral consequences that result from even the most minor misdemeanor offenses, such as delayed expungement eligibility

For example, a person seeking to expunge a single felony, who concluded their probation in October 2016, might have gone 6.5 years without any legal trouble, and may think that they are eligible to apply for an expungement in October 2023. In April 2023, they may then be pulled over for a speeding ticket, while not realizing their vehicle’s registration has expired This person might then go to court, and face both a civil infraction for speeding and a misdemeanor for driving an unregistered vehicle, but may not realize a distinction between the classification of these two offenses that were issued on the very same ticket. A prosecutor might tell the defense counsel that he will dismiss the speeding infraction, if the individual proffers to the other offense The defense counsel may then advise the client to plead guilty, because the speeding ticket comes with points that would raise the individual’s insurance rates, while driving an unregistered vehicle offense does not have any points that would raise the individual’s insurance rate. The individual may plead guilty and pay the fine, only later realizing that this ‘minor misdemeanor,’ that didn’t even carry points, was not so minor after all. The new conviction for the traffic offense would restart the individual’s expungement eligibility clock This means, instead of applying in October 2023 to expunge their old felony, they would not be eligible to apply until 2030. During this additional waiting period, they would continue to face collateral consequences of their conviction such as difficulty securing gainful employment and finding housing.

Statutory language under MCL 780.621d states that a person who is otherwise eligible for an expungement must not have “been convicted of any criminal offense during the applicable time period required under subsections (1), (2), or (3).” These subsections specify the 3, 5, or 7 year waiting periods respectively, for expungement by application, depending on whether the offense is a misdemeanor, serious misdemeanor, or felony A similar provision also exists under the automatic expungement statute, 780.621(g), which again requires no convictions during the “applicable time period” for automatic expungements, at 7 or 10 years, depending on whether the offense is a misdemeanor or felony. While plain reading of the statute suggests that one cannot have a new conviction during the specified waiting period (e g a defined number of years), some prosecutors interpret the “applicable time period” language broadly to mean no new offenses at any point before a person applies for an expungement. Such prosecutors who ascribe to this interpretation often object to expungements on this grounds, which can make it challenging for the person pursuing the expungement to have their application granted

For example, under current expungement law, a person seeking to have two felonies expunged by application is required to wait 7 years from their final day of probation to be eligible. Imagine that a person completed their probation for the latter of two felonies in April of 2015, meaning April 2022 would’ve been the requisite 7-year mark Recently, after becoming aware of the changes to expungement law that occurred through Clean Slate legislation, this individual tries to pursue an expungement of two felonies. Since it is now April 2023, 8 years have passed since his second offense. However, to the individual’s surprise, prosecutor’s object to the application saying he is ineligible

Why? Well, in February 2023, this individual’s car insurance lapsed. Unaware, the person continued driving to and from work, and was pulled over and given a misdemeanor for driving without insurance. Although this person went more than the specified 7-year waiting period, from 2015-2022, without a new offense, the prosecutor asserts ineligibility because of the February 2023 misdemeanor conviction, which occurred after the 7-year waiting period but still before the time this person sought an expungement. The judge in this particular court, who happens to be a former prosecutor, agrees with the current prosecutor’s interpretation, and the person ’ s application is denied The person will now be ineligible to apply for an expungement until February 2030 However, if the person is before a different judge in a different jurisdiction who reads the statute more narrowly, the person might have had their application granted. These varying interpretations lead to unpredictable, inconsistent results for those who apply.

2. The “applicable time period” statutory language, that references how long a person must wait to be eligible for an expungement without having any new criminal offenses, is vague and leads to inconsistent outcomes for expungement applicants across jurisdictions.

AN EVEN CLEANER SLATE:

3. The statutory language prohibiting a person from reapplying for an expungement for 3 years after a denial must be eliminated.

Current statutory language (MCL 780.621d(5)) states that a person shall not file another petition for expungement for three years from the date a court denies their petition, unless the court opts to expressly permit a shorter reapplication time frame. Current expungement laws are extremely complex to decipher, contain lots of exceptions to eligibility, and numerous difficult-to-discern waiting periods. The statutes are confusing, even for seasoned attorneys, many of whom attend trainings before assisting clients with their expungement needs. Where many individuals cannot afford the cost of retaining counsel to assist with an expungement, and instead have to proceed pro se–compiling their own documents, completing their own application, and ultimately representing themselves at their expungement hearings–the likelihood of an error in eligibility determinations is even more likely. While likely intended to prevent the clogging of a judge’s docket with frivolous petitions, what this statutory provision actually does is discourage individuals who might be eligible from applying because they are afraid of being denied on a technicality and then being restricted from applying for several additional years.

AN EVEN CLEANER SLATE:

4. An expungement applicant, particularly one who is pro se, should not be negatively impacted for their detrimental reliance on ICHAT reports.

An ICHAT report is a document generated as part of the expungement process that is supposed to reflect the criminal history of a system-involved individual, including arrest segments, charge segments, and conviction segments from any past circumstances. In fact, paying a fee to generate an ICHAT report is one of the only ways a layperson can view their entire criminal offense history, across various municipalities, police precincts, and courthouses in one central place However, despite being generated by the Michigan State Police through a government website, ICHAT reports often contain clerical errors or incomplete information, that a person might then rely upon in assessing their expungement eligibility, particularly as it pertains to confirming that they have no charges pending against them, that they have no recent convictions for things like traffic misdemeanors, and for determining their applicable waiting period timeline. They might then spend money to apply for an expungement, not realizing that they are in fact ineligible.

For example, an individual who wants to apply for an expungement might run their ICHAT report and see that they have no entries listed for any arrests, charges or convictions within the applicable waiting period. Because of this, they do not contact any of the nearly 100 district courts in Michigan to see if they have had a conviction at any point in the last 7 years. Instead, relying on the ICHAT information, they then apply for an expungement, genuinely believing that they are eligible. However, after submitting their expungement application and the requisite fingerprints, the attorney general’s office produces a Register of Actions (ROA) obtained from a specific court showing a misdemeanor traffic offense conviction during the applicable time period–something the individual did not even realize was a criminal misdemeanor. Despite the fact that this information did not appear on the individual’s ICHAT, and induced them to apply when they were ineligible, the individual could be denied and precluded from reapplying for 3 years, even if they might otherwise have become eligible within this 3-year punitive period.

AN EVEN CLEANER SLATE:

Indigent individuals may be precluded from seeking an expungement via application where they are unable to afford the associated costs such as fees for fingerprinting, application processing, mailing, notarizing and obtaining certified records. Depending on the number of offenses for which one is seeking expungement, this can easily add up to hundreds of dollars, a daunting task for a person whose income and employability might already be negatively impacted by the stigma of the conviction(s). For fees controlled by a state court or government entity, where an applicant is indigent, such fees should be waived. For external fees, where an applicant is indigent, a voucher should be offered.

Even after critical, impactful changes made through Clean Slate legislation, current law still prohibits the expungement of certain convictions, purely because of the category of the offense (e.g. expungements of more than one felony of the same type if it is punishable by more than 10 years; expungements of more than two assaultive crimes; expungements of more than 3 felonies). Such prohibitions fail to permit a judge to evaluate someone ’ s individualized circumstances, such as one ’ s extensive trauma history, one ’ s age at the time they committed the offenses, one ’ s substantial evidence of rehabilitation, one ’ s character witnesses, or one ’ s positive contributions to the community. Additionally, this prohibition-by-category and prohibition-by-number also fails to allow for consideration of the length of time that has passed since a person committed the offenses, which could be several decades or more where someone has been a law-abiding resident of our state.

For example, imagine that in 1980, an individual committed 3 assaultive crimes when they were 18 years old, before their adolescent brain was fully developed, as is well-established by scientific studies that have been referenced in Michigan Supreme Court decisions. The individual’s assaultive crimes arose out of recurring domestic violence disputes between the person and their then partner, who they divorced when they were 21. Both the person, and their partner, had been charged with assaultive crimes at the time of the divorce. The person recognizes the behavior was wrong, and that such conduct largely stemmed from the trauma of watching their own parents have domestic disputes–something that was normalized for them based on their upbringing It is now 2023, and 43 years have passed since these offenses took place. The individual is now a 61-year-old grandparent, who cannot pass a background check to volunteer at their grandchild’s school. The individual has consistently worked at their church's food bank, cooking warm meals for those in need for the last 30 years, and has had no offenses in that time. However, because these are assaultive crimes, they would not be eligible for a total expungement.

6. Eliminate the prohibition of expungements currently required for specific categories of offenses.

AN EVEN CLEANER SLATE:

6. Eliminate the prohibition of expungements currently required for specific categories of offenses.(Continued)

As another example, an individual who was being trafficked at age 22, who would not comply with an investigation to reveal details about her pimp, was charged with and convicted of two human trafficking charges in 2007. At this time, there was less extensive research about human trafficking and trauma to inform why the individual, who was scared of retaliation, would not comply with an investigation. 16 years later, this individual travels the country as a human trafficking survivor, speaking about predatory “grooming” and ways to avoid trafficking. However, because her convictions are the same and are both punishable by more than ten years, she would not be eligible for a total expungement.

While these two examples are fictional, there are countless instances where people have grown and evolved since their underlying criminal offenses, but are still barred from even being considered for a total expungement. Our laws should reflect the reality that individuals are capable of leading positive lives after a conviction and deserve the fullest chance to do so.