Why Have Michigan Legislators Tied the Hands of Law Enforcement?
Have They Made it Too Easy to Clear A Criminal Record?
By Jay R. Taylor
I was raised in a good Christian household and believe in giving people second chances. After all, everyone makes mistakes. When it comes to children, we should give them even more indulgences.
We shouldn't penalize someone for things done long ago, especially if the transgression is minor, they learned the lesson, and are unlikely to repeat their mistake.
This is why I thought Michigan's new law that makes it easier for people to "expunge" or set-aside criminal convictions was a good step. That is, until I read it.
What is expungement?
Setting aside a conviction to remove it from public view legally is called “expungement.” The record is sealed and can be accessed only by certain persons if allowed by law. In Michigan, there is one process to set aside a conviction on your adult record and a different process for a juvenile conviction, called an adjudication.
Why did we need a change?
Before 2021, it was believed we made it too hard for residents to set aside their criminal records after some reasonable period of time.
For decades Michigan required them to apply for expungement after many years and follow a process involving much paperwork. However, social justice advocates complained that only 6 to 7% of eligible convicts made a request.
The existence of a criminal record made access to housing or employment or other societal activities more difficult. Advocates believed the expungement process took too long and was too complex for most without an attorney. Advocates also pushed to convince legislators that convictions of a certain type should generally be removed automatically without the person asking.
In 2021, these advocates succeeded with the passage of Public Act 190.
What was changed?
Rather than bore you with the legislative details, let's begin with a "social justice warrior" quiz.
Which of the following is the hardest thing to get removed from your record in Michigan:
- A conviction for operating while intoxicated
- A felony conviction for domestic violence
- A late payment event on your credit report
- Stealing someone's car
If you chose any of the crimes listed, you would be wrong! Getting that late payment or unpaid debt off your Experian credit report takes seven long years. The law allows criminals to wipe the slate clean in as little as five years for most convictions – which is two years before you can fix your credit.
Residents can have up to three felonies and an unlimited number of misdemeanors expunged from their criminal history. And they don't even need to be in our country legally!
Have you been involved in only two assaultive crimes? Say bye-bye and wipe your record clean with this new, easy-to-use online application process and receive free assistance from the friendly people in Oakland County or your area.
Yes, we want to be fair to people, but how could this be? And what comes next? Some progressive groups are also pushing to require the registration of firearms and create a new animal abuse registry. Those records can be expected to live on forever without expungement.
How many people are affected?
Social justice advocates report that between two and three million of Michigan's 10.1 million residents have criminal convictions. Annually, about 45,000 new felony convictions and over 200,000 new misdemeanor convictions are tallied. Given that we have only six million working-age residents committing the vast majority of crimes, that's a whole lot of criminal activity.
Everyone does deserve a second chance. I know I've made mistakes in my youth that I would not want to be penalized for the rest of my life. Maybe I did things for which I wasn't caught, where others were. In any case, if someone is truly sorry for their actions, they should be given a second chance.
Having any criminal record can damage a person for the rest of their life. They could be denied jobs, opportunities, and so many other things. It makes sense to have a reasonable policy that would remove criminal records after a period of time.
The trick is to create a program that is both fair to the individual and the greater society. The program shouldn't be so lenient that serious criminals, or even people with multiple offenses, should get away with a life of crime. The program should not also allow people to take advantage of it. There should be caps on how many convictions can be set aside. There should be restrictions on the type of convictions the law allows to be set aside.
Do you feel all of these crimes should qualify for expungement? Negligent homicide? Breaking and entering? What about harassment and verbal threats? Computer crimes? Carrying an unlicensed and concealed firearm? Discharging a firearm in a neighborhood? Destruction of property? Intimidation? Running a business scam? Defrauding people in the roof repair business? Selling unsafe products? Repeatedly failing to abide by contracts and agreements? Credit card fraud? How about erasing the records of twelve Detroit school principals charged in a conspiracy scheme involving more than $900,000 in kickbacks and bribes? When should their record be wiped clean?
Who are the people who have been pushing so hard for this in Michigan? Well, they aren't from here.
It's funny how most of the crazy changes to our laws originate from groups not even located in Michigan.
Two groups, in particular, are reported to be the driving force for changes to Michigan's criminal justice system – the Clean Slate Initiative from Florida and Code for America from California.
The Clean Slate Initiative (CSI) - led by Sheena Meade of Florida, CSI receives funds from a $975 million dark-money political group called The New Venture Fund, founded in 2006 and financed with seed funding by Bill and Melinda Gates Foundation. Meade is a former criminal justice warrior and rights restoration coalition member. The New Venture Fund (NVF) is a 501(c)(3) sponsorship nonprofit that makes grants to left-of-center advocacy and organizing projects.
Critics of the New Venture Fund, including the New York Times, argue that NVF is a "dark money" organization serving as a way for left-leaning foundations and donors to funnel money toward various political advocacy issues anonymously. It is the largest nonprofit in the network of five nonprofits created and managed by Arabella Advisors. This Washington, D.C.-based philanthropy consulting company caters to significant foundations and organizations on the political Left. In April 2021, the New York Times criticized Arabella's "system of political financing, which often obscures the identities of donors" as "dark money," calling the network "a leading vehicle for it on the Left." However, NVF also sponsors many "philanthropic projects" that engage in charitable work.
Code for America (CfA) - Amanda Andrea Renteria is the CEO of Code for America (CfA). This nonprofit, social impact organization helped launch the tech-based ecosystem for government "partners" and community-based organizations to use technology to create a government by the people, for the people in the digital age. CfA focuses on programs that increase access to social and tax benefits, automate criminal record clearance, and assist in local initiatives to alleviate poverty and advance equity. Their goal is to make automatic record clearance—where the state initiates and completes the clearance of all eligible criminal records—the standard across the country. According to her Wikipedia page, Renteria was “a political aide as National Political Director for Hillary Clinton during Clinton's 2016 presidential run and as chief of staff and legislative advisor to United States Senators Dianne Feinstein and Debbie Stabenow. After college, Renteria became a financial analyst for Goldman Sachs.”
What is coming in April 2023?
The 2021 law provided for the implementation of "automatic expungements" beginning in April 2023 for eligible Michigan residents and convictions using an automated process for eligible residents and convictions.
The process will allow certain convictions to be set aside automatically after a specific period. Michigan courts will notify arresting law enforcement agencies of convictions eligible to be expunged once they've surpassed the time limit.
According to ClickOnDetroit, state officials reported that "multiple state agencies" developed the automatic processes for identifying and expunging convictions. However, nowhere can I find the procedures followed to ensure this automatic process will work as intended by the law. As a result, I filed a Freedom of Information Request with the Michigan State Police to obtain a copy of these procedures.
No more will convicts be required to apply to set aside their record – apparently they are too busy to bother – so the state will do it without asking. Is this what society wants?
What could go wrong?
There are several glaring flaws in the current law.
- Prosecutors often plea-bargain crimes at a reduced level. They lessen the severity during plea-bargaining to obtain a quick conviction. To get reelected, prosecutors brag about their conviction rates, but at the expense of society. What ends up being classified as a misdemeanor may have been a more serious felony offense. A convicted criminal may then commit the same crime later and only have one felony on their record.
For example, a Lansing man arrested in 2019 for carrying an unlicensed concealed pistol (a felony punishable by five years in prison) was allowed by the Ingham County Prosecutor to plead guilty to a misdemeanor, avoiding jail time. A felony conviction would've made him ineligible to purchase a gun in the future, while the misdemeanor charge did not prevent a purchase. In February 2023, this individual went onto the campus of Michigan State University and killed three and wounded five students.
- Thanks to the Michigan legislature, it is a crime to talk about certain crimes. You will find this language in Section 3 (5) of PA190. Police can charge any person other than the criminal or a victim who divulges, uses, or publishes information about a conviction they knew or should have known was set aside. This law is unfair since most people who have heard of or witnessed a crime have no personal knowledge that the system erased a conviction. As a result, talking about an expunged conviction will make you guilty of a misdemeanor punishable by imprisonment up to 90 days or a fine up to $500, or both. Note that the risk of being charged will grow as time goes on and many crimes are automatically set-aside.
- Even more troubling is that the law prohibits law enforcement from accessing these set-aside or sealed records when responding to crime scenes or conducting criminal investigations. Imagine responding to a crime in progress and not being able to determine whether a suspect has a rap sheet filled with various convictions. Imagine conducting an investigation but being unable to identify their known associates or review past statements. Section 3(2) of the law specifically prohibits law enforcement from accessing records set aside except for three defined reasons: employment screening, sentencing, or violations of sex offender registration requirements.
Where do we go from here?
Sometimes things that sound good on paper don't make sense.
Yes, we want people treated equitably under the law. We want the legal system to treat all races fairly. We want people to have equal opportunity. Beyond that, we should not erase a person's criminal history without asking or giving their consent.
We should not allow the current law to stand. It doesn't do enough to balance the rights of residents and those of persons convicted of crimes. Here are some of the changes we need:
- The first thing is to eliminate automatic expungement. Taking such an important step as erasing past criminal activity with limited or no human involvement is frightening to me.
- If someone isn't interested in removing their own criminal record, why should we? It should be made as easy as possible but require the person to ask for it, show they have no pending illegal actions, and pledge to remain crime free. This simple online request would also allow the court to update their information on the location of the individual.
- Location information is vital because they may have moved out of Michigan. Also, there's a possibility they may no longer be living. If that's the case, deleting their criminal records from the state database does nothing to improve their life, law-enforcement ability to investigate crime, or have accurate crime statistics.
- Last, we must ensure law enforcement has the tools to do their job and protect us. Under this law, they no longer have the necessary tools in Michigan. And the problem is growing.
In conclusion, Public Act 190 may be a good step in the right direction, but it contains some disturbing features and flaws.
Until the legislature and Governor corrects these flaws, residents will be less safe than perhaps right-thinking lawmakers intended. We shouldn't accept a continuation of these societal dangers.