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Effort to erase convictions criticized

ESCANABA — With bipartisan expungement reform legislation being reviewed by the Michigan Senate, local prosecutors weighed in on the effect these changes may have.

In November 2019, the Michigan House passed legislation that would overhaul expungement laws and make it easier for hundreds of thousands of people to have clean criminal records.

House Bills 4980-4985 and 5120 would make sweeping changes to the state’s expungement policies, including making expungements for some crimes automatic and opening the process up to people with certain low-level marijuana and traffic convictions.

“I, and Michigan prosecutors in its other 82 counties, want to make sure any changes to the current expungement statute are done in a way that first, continues to protect the safety of the public and second, preserves the ability of prosecutors and victims to have input into any given application for an expungement which, it should be remembered, is a privilege, and not a right,” Menominee County Prosecuting Attorney Jeffrey Rogg said.

According to Delta County Prosecutor Brett Gardner, the bills are poorly written and extremely voluminous that at this point until the Senate comes out with their version it is impossible to see where the state is headed with legislature’s goal to create more opportunities for expungement.

Currently, people in Michigan with one felony conviction or two or less misdemeanors for certain crimes are eligible to ask a judge to clear their record if they haven’t committed other offenses for five years or more. Once an individual has had an adult conviction set aside, he or she is not eligible for future expungements.

House Bill 4984 would allow a person convicted of one or more criminal offenses in this state, but not more than a total of three felony offenses, to apply to have all of his or her Michigan convictions set aside. However, an applicant could not have more than two convictions for an assaultive crime set aside during his or her lifetime and could not have more than one felony conviction for the same offense set aside if the offense is punishable by more than 10 years imprisonment.

House Bill 4985 would require that more than one felony offense or two misdemeanor offenses be treated as a single felony or misdemeanor conviction if the felony or misdemeanor offenses occurred within 24 hours and arose from the same transaction.

House Bill 4981 would exclude only certain traffic offenses, rather than all traffic offenses, from being eligible to be expunged.

House Bill 4983 would revise the time periods an applicant must wait before filing an application to have an eligible offense set aside.

House Bill 4982 would add that beginning Jan. 1, 2020, a person convicted of one or more misdemeanor marijuana offenses in violation of state law or a local ordinance of a political subdivision could apply to set aside convictions.

House Bill 5120 would add if an application to set aside a conviction or convictions for a misdemeanor marijuana offense were granted under HB 4982, the arresting agency and Michigan State Police would have to maintain the nonpublic record created.

House Bill 4980 would establish an automatic expungement for certain felony and misdemeanor offenses, if certain conditions were satisfied. Not more than two felony and four misdemeanor convictions total could be automatically expunged during an individual’s lifetime.

Rogg explained the Michigan expungement statute was amended a few years ago to allow an individual to have his or her criminal record “set aside” under certain circumstances.

Those circumstances include: if someone has been convicted of not more than one felony and not more than two misdemeanors, the person can petition to set aside the felony conviction. If someone has been convicted of two or fewer misdemeanors and no other felony or misdemeanor offenses, the person can petition to set aside one or both of the misdemeanor convictions. Additionally, if someone has any convictions — felonies or misdemeanors — that were deferred and dismissed, they are presently considered misdemeanor convictions when determining whether one is eligible to have one’s record set aside.

“I thought the earlier changes to the expungement statute were fair and appropriate, since the previous iteration of the law allowed for a person with only a single prior conviction to be eligible,” Rogg said. “I have participated in ‘expungement clinics’ while I was in private practice in Detroit, and I fully appreciate the need for giving a ‘second chance’ to certain statutorily eligible and otherwise worthy individuals. However, these new proposals, it seems to me, go too far in eliminating law enforcement’s obligation to protect the public and the public’s right to know about the past criminal behavior of a person, allowing it to be ‘swept away’ without a proper inquiry by prosecutors, victim input, and a fair determination by the courts.”

He added he felt the proposed changes do not strike the right balance between public safety and rehabilitation.

According to Gardner, the current law makes it very clear that it is a privilege and not a right.

“The current law makes it clear that anyone seeking to get crimes set aside, that it is not a right, it’s a privilege and is conditional on the approval of the judge after input from the prosecutor,” Gardner said. “You can have no more, under the current law, two misdemeanors set aside and one felony, and there are exclusions for criminal sexual conduct, traffic offenses and other serious assaults. This gives the local judges the power to ultimately make a decision under the facts of the crime itself and input from the prosecutor and defense whether or not it is appropriate to set aside the convictions.”

The main concern for the two prosecutors on the expungement reform legislation is that it changes the process of expungement from a privilege to a right.

Gardner said this is most evident in the bill that proposes automatic expungement.

“I do not see how having automatic expungements would ever serve the general public,” he said. “I believe the people in the community and the businesses in the community have the right to know the background of the people they hire. Hiding the convictions so that people can get jobs, to me, is fraud — with problems, especially when … the proposed law allows for violent crimes to be expunged and many of crimes to be expunged.”

Rogg agreed with Gardner, with his biggest concern on the expungement reform legislation being House Bill 4980.

“I am particularly concerned about House Bill 4980’s automatically setting aside convictions after 10 years, which I think is arbitrary and would not reflect at all upon a given individual’s eligibility for the privilege of an expungement, to say nothing of the true rehabilitation of a given individual,” he said.

The mindset behind the bills is the struggle people have finding jobs when they have criminal backgrounds.

According to Gardner, he understands the theory that convicted felons in particular find it difficult to find jobs, but he believes the current law allows the opportunity to find jobs by allowing two misdemeanors and one felony to be expunged.

“While that law may need to be tweaked, it should not be thrown out and changed from a privilege to a right to have your criminal felonies set aside, nor should it take the right away from the judge to make the ultimate decision and for the prosecutor to have input in that decision,” Gardner said. “Being in law enforcement for over 31 years, I’ve seen laws that needed to be changed, and I’m not saying this one doesn’t, but it is a total overreaction. When people commit multiple felonies — there is a problem. And the problem isn’t with their record, the problem is with the person. The responsibility should never be put on the community, or the legislators or the prosecutors to compensate for people who commit serious crimes so that we can all act like nothing ever happened.”

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