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A retail fraud conviction followed Elvina Smith for 18 years.
“All you have is your name,” Smith said. “I don’t want people to see Elvina Smith: felon. I want people to see Elvina Smith and think math enthusiast; or mother of two beautiful daughters; or a daughter who takes care of her disabled mom. Because there’s so many things to me besides the felony.”
Smith, sharing her story in a video for Lansing, Michigan-based nonprofit Safe & Just Michigan, said she had been disqualified for jobs that she was overqualified for and turned down for housing due to a poor decision made 18 years ago.
It wasn’t until Smith attended an expungement fair hosted by Safe & Just Michigan with other community stakeholders that she learned her record had already been automatically wiped clear thanks to Michigan’s Clean Slate Law that took effect in 2021.
“If I had to describe getting an expungement in one word, it would be ecstatic. I feel like a rebirth. I'm reborn today. And that’s priceless.”
Michigan has an estimated 2.8 million people with criminal records, more than a quarter of the state’s population. The collateral consequences of a criminal conviction, disproportionately felt by communities of color, prevent many from opportunities to better their lives.
On April 11, 2024 – the three-year anniversary of Clean Slate (Public Act 193 of 2020) going into effect – W.K. Kellogg Foundation grantee Safe & Just Michigan released a report titled, “Clean Slate Year 3: The First Year of Automatic Expungements — Looking Back and Looking Ahead.” The report analyzes challenges faced in implementing automatic expungement and recommends improvements, including the creation of a free-to-use web portal allowing people to look up their criminal record status and reforming data-sharing laws for commercial background check companies.
Safe & Just Michigan Executive Director John Cooper said during a video call with media that the law helps build “healthy and prosperous communities.”
“If we have people who are stuck in poverty, because they have old criminal records, that means they’re not going to be able to get the kind of job they want to provide for their families, that puts them at risk for destabilizing events like eviction, like arrest,” Cooper said. “And that’s why we’re starting to seal these records. Because expungements are such a net positive for society, it follows that we should ensure that the Clean Slate law is maximizing its impact.”
Two Pathways To Expunging A Conviction
Through bipartisan support in the Michigan Legislator, Clean Slate was signed into Michigan law in October of 2020, impacting rules and procedures an individual may use to have prior convictions set aside. The bill made several changes to existing paper application processes and eligible offenses, creating a process to automatically set aside certain convictions without an application.
There are limits on how many offenses can be expunged, and those with assaultive crimes and other more serious offenses are not eligible.
Following a two-year development process, Clean Slate took effect April 11, 2021, followed by Clean Slate Automatic Expungement on April 11, 2023.
More than 30,000 petitions have been filed to the Michigan Attorney General’s Office since 2021. Since automatic expungement went into effect through an algorithm in Michigan State Police “rules engine,” more than 1.3 million convictions have been expunged, and 280,000 people have been given a completely clear record.
Sarah Munro of the Michigan Advocacy Program said that virtually every expungement application the legal service provider files have been granted a hearing.
“These hearings are generally positive experiences for everyone involved,” Munro said. “They’re kind of a bright light in the court’s docket. Usually, the judge is thrilled to be having this hearing and being in the position to set aside someone’s conviction that is impeding their life and just not representative of the kind of person that they are now.”
Reform Still Needed
While Clean Slate has undoubtedly made a positive impact in Michigan, the law can still be refined to maximize its impact.
In its report, Safe & Just Michigan identified issues with the current expungement process:
- It’s complicated. Legal aid is not necessary, but it can be a frustrating process to navigate. Pro bono services are limited by funding and capacity issues.
- People may not be aware of the automatic process and are unable to check if their record has been sealed. Thus, they may “check the box” unaware of the benefits of the law.
- The MSP rules engine has blind spots. Offenses without an MCL (statutory) code are not automatically expunged, typically an issue with older criminal offenses.
- It has an impact on open cases with “hanging charges.” It’s common for prosecutors to leave charges in non-priority cases open indefinitely. This can only be addressed at the county level and requires courts and the local prosecutor’s office to work together to close these open cases by reporting the final dispositions of these cases to MSP.
- Delays in processing felony expungements by the rules engine and a lack of flexibility in its interpretation of intervening convictions.
- Commercial background check companies are slow to update their records, and there is minimal oversight and limited recourse to those whose records have been misrepresented to prospective employers and landlords. Clean Slate holds individuals criminally liable for disseminating nonpublic information, but the law doesn’t specifically address what if any liability companies will face.
Safe & Just Michigan continues to advocate for additional oversight of commercial background check companies, whose records may not be up to date and are therefore misrepresentative to potential employees or landlords.
Safe & Just Michigan is also advocating the creation of a publicly funded Clean Slate Portal, where people can check their records for free and avoid “checking the box” on their past criminal records.
“We have and will continue to advocate for the implementation of a Clean Slate portal,” said Safe & Just Michigan Clean Slate Program Manager Kamau Sandiford. “We believe that the lack of any type of notification process, letting people know when their offenses have been expunged means that people will continue to check the box on employment or housing applications even when they may not have to do so.”
Cooper added that criminal record sealing should be viewed as an investment that serves both families and communities.
“If you get someone an expungement, you’re going to see a 23% increase in their income in the first year, they’re going to be 11% more likely to be employed. Those are public goods,” Cooper said. “They’re going to pay taxes on that money, they’ll be able to support their families better, they’re going to be out of cycles of criminalization and poverty that take up a huge amount of public services.
“We have people who are underemployed and not producing or paying the kind of taxes that they could if they had better jobs, supporting their families and others in the community the way they could. And it just doesn’t need to happen.”
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