The Michigan legislature and governor have approved a set of bills that will automatically clear certain criminal records after a set period of time, often referred to as “clean slate” legislation. Under the new law signed by Michigan Gov. Gretchen Whitmer today, most misdemeanor crimes will be automatically expunged after seven years, and some felonies after 10.
There are several qualifying measures to the legislation, such as requiring the crime to be non-violent, or not in combination with certain other crimes, but the measure is broad in terms of the crimes that it expunges automatically without requiring a citizen application.
These measures will undoubtedly improve the lives of Michiganders by alleviating many of the collateral consequences that come from a criminal record, such as increased difficulty securing employment and housing. Recent research has shown that even a misdemeanor can have devastating impacts throughout the course of one’s life.
There is some special treatment for marijuana crimes in the bill, as citizens can apply to have their marijuana records expunged. The state is directed to default into accepting the applications for expungement and only deny ones that the prosecution flags as problematic. Yet, it is curious that some crimes, like petty theft, will be eligible for automatic expungement but marijuana-related crimes will not.
There is a massive backlog of marijuana records that will never be eligible for the automatic expungement process because they occurred before the state legalized marijuana. These marijuana-related crimes deserve automatic expungement because the violation on record is no longer criminal according to state law. Michigan needs to “clean house” of marijuana crimes ready for expungement, whereas it does not need to do so for crimes that remain illegal.
Additionally, there are major problems with the manual application for expungement process that the state has set up. Michigan academics testified during the bills’ committee process that, historically, only 6.5 percent of those eligible for expungement have applied for and received it. The reasons for this are varied but mostly involve the cost, complications, and intimidation of dealing with the criminal justice system. Most of these factors will remain in place even after this legislation becomes law, undermining the intent of these criminal justice reforms.
If the state intends to accept a large majority of applicants anyway, what purpose does forcing people with low-level marijuana convictions to apply for expungement accomplish?
It is arguably a violation of the 14th Amendment right to equal protection under the law, as those with more time and resources are much more likely to receive expungement while those with limited resources may struggle. An equal application of justice would mean the state takes the onus of reviewing each case expeditiously and expunging those eligible.
Luckily, Code for America has developed open-source software that can identify eligible records and automatically expunge them at little to no cost to the state. California has already run a “Clear My Record” pilot program, clearing some 85,000 records and is now implementing the program statewide. There is little reason why Michigan should not use this, or a similar, program as well.
Overall, the new set of laws makes major strides towards reforming expungement practices. Michigan becomes just the sixth state to enact this sort of ‘clean slate’ legislation. Having nonviolent misdemeanor crimes automatically “fall off the books” after a designated number of years is a reliable and effective method of promoting economic opportunity and justice.
Still, Michigan should deal more effectively with the large backlog of marijuana cases that are no longer be considered criminal activity due to recent marijuana legalization measures. There is little sense in forcing a manual application process for the hundreds of thousands of records that deserve relief.
These criminal justice reforms are good steps, but now Michiganders should demand the state consider a cheap and reliable method of automatically expunging low-level marijuana convictions so it promotes equal treatment under the law.