By James William McCartney, University of Michigan School of Law
First place winner of the second annual law student writing competition.
Michigan has made great strides in recent years to expand access to the expungement process and has offered special opportunities to juvenile offenders, but the need for reform remains. Too many ex-offenders are completely barred from the expungement process leaving them with no option but to deal with the consequences of having a criminal record. This undermines their ability to reintegrate into society increasing the economic and social burdens on not only former-offenders, but society. The ability to expunge one’s criminal record should be opened to nearly all. Those guilty of minor offenses should be able to have their records expunged automatically after six years of a clean criminal record. Those who were never convicted should also have their arrest records automatically expunged rather than forcing them to go through the bureaucratic process. And, special circumstances should be afforded to juveniles and young adults. Expungement reform will not eliminate all the challenges facing former convicts trying to reintegrate into society, but it will help.
Michigan has seen a dramatic decline in its prison population over the past ten years, and that means a growing population of citizens living around Michigan with a criminal record. In 2007 Michigan saw a peak of nearly 52,000 inmates incarcerated in the Michigan state prison system. Over the last decade that number has dipped below 40,000 inmates. This has been in large part due to reforms in drug laws. For example, in 1998 the legislature passed a law allowing life without parole drug offenders to qualify for parole. Then in 2003 they eliminated all drug minimum sentences. While this has helped reduce Michigan’s prison population, it has led to an influx of former-offenders trying to reintegrate into society.
As the state has reformed its criminal sentencing laws, there remains the issue of what to do with those who have already been convicted, served their time and now are free to enter society. These reforms do not address the number of people who never serve time in prison. While there are no published state estimates of the number of free Michigan citizens who have a criminal record, nationwide estimates have been as high as one in three Americans when you include arrest records along with convictions.1 Currently Michigan bars many ex-offenders sometimes called career criminals, from the expungement process altogether, while leaving the ones who do qualify to navigate a lengthy bureaucratic process. Even those who are only arrested and never convicted must appeal to have their record expunged. This places a significant burden on people trying to reintegrate into society creating barriers to employment and stigmatizing those who have been reformed.
However, opponents to expungement reform argue that society has a right to know a prior felon’s criminal history to protect the public’s safety. Others argue that it provides additional deterrence to would be offenders. The benefits of a highly selective and rigorous expungement process do not outweigh the economic and moral benefits associated with broadening access to ex-offenders trying to suppress their past criminal history.
In Michigan only a select few can qualify for expungement, and those who do must go through a lengthy bureaucratic process. An applicant first can only have one felony on their record or no more than two misdemeanors.2 If the sentence possibly carries a life sentence, then it cannot be expunged, even if the convict did not receive a life sentence.3 For juvenile records, even if the convict was tried as a juvenile, if the person could have been tried as an adult and possibly faced life imprisonment as an adult, then the crime cannot be removed from the person’s record.4 Also, no sexual misconduct violations can be expunged.5 Those who qualify must wait five years after the date of their release.6 Meanwhile, adults trying to expunge their juvenile record must wait until they are at least twenty-four before seeking an expungement.7
Once one qualifies for expungement they must embark on the lengthy application process. Applicants generally must first find an attorney to help them navigate the court system. They must also compile paperwork including fingerprints, letters of recommendation, pay fees and appear in court where the original sentence was rendered. Many applicants’ hopes of expunging their criminal records can hinge on the judge they receive. Some judges will grant any expungement application that meets the legal requirement, but others uphold higher standards of proof of rehabilitation. The likelihood of encountering a tough-on-crime judge is exacerbated in Michigan since judges are elected.8 While this lengthy process is meant to ensure that those who do expunge their records are in fact rehabilitated, it disqualifies far too many outright, and leaves too much to chance over what judge a former criminal receives. Too many former criminals, some of whom were convicted as juveniles, are thus unable to fully reintegrate into society despite even their best efforts to become productive citizens.
Former criminals having their criminal record follow them for the rest of their life leads to lifetime hardships beyond the punishment that courts assign at sentencing. First, one’s criminal record can limit certain welfare benefits that they can receive. Luckily, Michigan does not bar those with a criminal record from receiving some social welfare services like food stamps. At the national level the Department of Housing and Urban Development banned landlords from denying all applicants with a criminal record as well.9 However, it is not clear if enforcement of this new rule has succeeded under the new administration. In Michigan there is no equivalent state rule, and criminal records can still prevent those with a criminal record from living in subsidized housing.10 Those on the sex offender registry are also limited in where they can live, making it nearly impossible for some to find housing in certain urban communities. This limitation is imposed regardless of the exact nature of their offense or if they are found not to pose a threat to children.
The greatest economic challenge that a criminal record poses to those trying to reintegrate into society is how it affects a former convict’s ability to find a job. Many employers require applicants to tell them upfront if they have ever been convicted of a crime. The New York Times estimates that those with a criminal record are fifty percent less likely to get a job offer.11 Another study conducted by the Bureau of Justice Statistics found that only 12.5% of employers would accept an application from someone with a criminal record. Many employers fear being held liable for criminal employees or fear how it might affect business. These fears are exacerbated by state governments barring felons outright from certain jobs. For example, most felons are barred from any type of healthcare facility work in Michigan.12 Those unable to find a job must then rely on the state or their family to support themselves. This frustration can lead to many becoming repeat offenders. Thus, the stigma placed on former criminals due to their permanent record can result in higher costs for society, not just the individual.
The government can help certain convicts acquire private employment by sealing their criminal records after one has completed their sentence. Across the United States there are campaigns to “ban the box” and prevent employers from asking applicants if they have a criminal record until the later stages of the hiring process. Removing barriers to steady employment is key to reducing recidivism in the criminal justice system. Former criminals unable to find legitimate employment will place a burden on public safety, the criminal justice system and government welfare.
Michigan especially needs to make expungement more available to juveniles. Those under eighteen should be granted greater access to the expungement process. In Michigan, people trying to expunge their juvenile record face many challenges. Juveniles cannot have more than three misdemeanors or more than one offense that would count as a felony as an adult.13 Those who qualify must still recover paperwork from the court where their juvenile offense was adjudicated.14 Young adults’ brains have not fully developed, and studies show that youth are not able to weigh the long-term consequences of their actions. Often young criminals are the products of their environment whether it’s abusive homes, failing schools or poverty in general. Furthermore, there are some studies that indicate that people age out of crime.15 Additional leniency should be given to most children, and a permanent juvenile criminal record should only be reserved for the most serious offenders.
The Federal Youth Corrections Act provides a framework for how this could look in practice. The FYCA allowed those convicted between ages eighteen and twenty-two to expunge their criminal records once they successfully completed their sentence. It also allowed judges to make a case by case decision for those over twenty-two but still under twenty-six; however, it was repealed in 1984. This caught many officials by surprise and subsequently exacerbated the prison population problem, especially in the District of Columbia.16 When the Federal Youth Corrections Act was first put in place it was meant to reduce recidivism and allow young people a path to rehabilitation. However, in the 1980s tough-on-crime legislation became mainstream in politics as crime rates soared throughout the United States. Criticisms of revolving door prisons and fears of super predators helped fuel support for more retributivist policies like three strike laws while pressuring lawmakers to roll back rehabilitation focused laws like the FYCA. Today’s political climate and demands for criminal justice reform might mean it is the perfect time to borrow and implement key parts of the FYCA at the state level.
In general, Michigan should implement significant changes to reform the expungement process for the broader public in addition to making changes for youth. Evidence has shown that those who are out of prison for six to seven years are as unlikely to commit a crime as someone without a criminal record.17 Those who have been out of prison for six years, had not been convicted of a violent felony, sexual misconduct, domestic violence, or a serious white-collar crime and have had no criminal incidents with the law should therefore have their records automatically expunged. Certain non-violent offenders should be allowed to apply for expungement even sooner and have their expungement judged in a holistic, case by case basis. Meanwhile, those unable to qualify for automatic expungement should still be afforded the ability to apply through the current process and have their case treated individually and holistically by a judge with an opportunity to apply again every several years if initially denied. Finally, arrest records that did not result in any sort of conviction should be expunged automatically upon release. In Michigan these arrestees must still navigate the bureaucratic process to get such records expunged. Such reforms would help remove stigma as well as the economic barriers facing ex-offenders.
Expungement of criminal records does not need to be the only solution employed to address the stigma associated with having a criminal record. Michigan recently has enacted laws granting released prisoners “certificates of employability” that they can present to employers.18 Additional reforms have provided protections for employers who are afraid of taking on the risk of hiring ex-offenders.19 While after several years ex-offenders should be allowed to have their records expunged, in the interim, “certificates of employability” might offer a middle ground that both sides of the argument can live with.
Of course, there are drawbacks to expanding access to expungement. Opponents to reform often argue that it protects law abiding citizens allowing them to use caution around those with a checkered past. Parents can know that a sex offender lives next door, while employers will think twice about trusting a former embezzler from being their new accountant. These are all valid concerns and providing the public with this information when it is appropriate makes sense. It is true that recent criminal history remains a strong indicator of whether someone will commit another crime in the future. In fact, according to the National Institute of Justice roughly sixty eight percent of released prisoners go on to commit a new crime in three years.20 However, this statistic should not be viewed in a vacuum. Some research has indicated that substance abuse provides an alternative indicator to determine the likelihood of recidivism.21 More importantly, the likelihood of former inmates committing a new crime drastically declines after the first several years of release. As pointed out earlier, one study has found that six to seven years after a person last offended they are just as unlikely to commit a crime as someone without a criminal record.22 While certain individuals may be more likely to reoffend than others this should pressure lawmakers to make the process more open to former inmates as they get further from their release date, rather than close the expungement process off entirely to ex-offenders.
Critics also argue that expungement reform will reduce deterrence. Professor Mungan theorized that increasing the cost of expungement could in fact reduce crime.23 However, most current scholarly work doubts the extent to which longer or harsher sentences provide additional benefits through deterrence.24 Seeing as carrying around a criminal record is akin to a life sentence, it seems that similar principles likely apply.
Some also argue that government efforts to help ex-offenders expunge their criminal records is a fruitless effort in the digital age. Newspaper articles as well as social network sites mean that anyone trying to find out about someone’s past will be successful in the end. This is true for many cases, but most convicts never have their story reported on or are given much notice. And even so, the government does not need to be in the business of making it more difficult for former criminals to reintegrate into society as productive law-abiding citizens.
In the end, the benefits of allowing people to expunge their records and re-enter society outweigh these costs. First, if America is going to be able to significantly reduce its incarceration rate then people imprisoned for life due to drug offenses or three strike laws will need to be reintegrated back into society. If those people are going to be able to fully contribute to society and our economy, then they should be allowed to suppress their criminal history from the public record.
There also remains an unavoidable racial element. Across the country black and brown people are far more likely to be prosecuted or arrested for a crime than a white person, and the same is true in Michigan. This has led to a vastly disproportionate percentage of African- Americans and Latinos in prison, devastating families and communities, and creating trauma for generations. This issue is particularly prevalent in Detroit where police employed racially motivated tactics and looked over constitutional rights to get speedy convictions for decades.25 The fact that many of these convictions were motivated by race presents a moral imperative to allow more access to the expungement process for all. But even suppression of access to criminal records may create its own racial problems. A recent study suggest that depriving employers of criminal history information will cause them to fall back on racial biases, favoring white applicants over black applicants.26 This should not lead people to believe that expungement will only make problems worse for minorities, but it is yet another example of how there is no simple solutions to these problems facing society. Those seeking to change expungement laws should therefore consider strengthening other laws as well such as employment discrimination to account for this potential blowback.
In conclusion, as Michigan hopefully continues to reduce it’s prison population, expungement will help ex-offenders start new lives, reintegrate into society, and subsequently be less likely to re-offend. But reforming expungement laws will not provide a silver bullet to solving the problems facing former convicts trying to reintegrate into society. Major racial biases and fear of former criminals need to be addressed. Expungement reform might prevent people from judging people based on their past before they get a chance to know them as there are today. In the end, Michigan and United States as a whole, cannot address their over-incarceration problem without also addressing the scarlet letter system that ostracizes those who have committed crimes in the past, often forcing them to sit on the margins of society for the rest of their lives. To this end, arrest records that did not result in conviction should be automatically expunged since there is no reason to force such people to jump through bureaucratic hoops to avoid the stigma associated with being previously arrested. For those convicted there should be a more holistic approach. Most should still have to demonstrate their determination to leave their criminal past behind them whether it’s securing a job or maintaining a clean record for up to six years after release to be allowed to expunge their records. For many crimes this process should become automatic, while for more violent felons, sex offenders, domestic violence perpetrators or serious white-collar crimes should face a more rigorous evaluation processes similar to what is applied today. In the interim certificates of employability might offer a good middle ground for those unable to qualify for expungement. But the idea of universally barring former criminals regardless of their individual circumstances from expungement is an outdated policy that should be removed from Michigan and United States expungement law.
|Dan Clark, How many U.S. adults have a criminal record? Depends on how you define it, POLITIFACT (Aug. 18, 2017, 12:00AM) http://www.politifact.com/new-york/statements/2017/aug/18/andrew-cuomo/yes-one-three-us- adults-have-criminal-record/|
|MICH. COMP. LAWS ANN. § 780.621 (WEST 2017).|
|MICH. COMP. LAWS ANN. § 712A.18e (WEST 2018)|
|See Kate Berry, How Judicial Elections Impact Criminal Cases, Brennan Center for Justice, Dec. 2, 2015.|
|New Rule Bans Landlords from Blanket Denials Based on Criminal, Fair Housing Center of Southeat & Mid Michigan (Apr. 13, 2016) http://www.fhcmichigan.org/hud_criminalbackground/#.WzWSStJKjIU|
|See State Bar of Michigan, Got a Record? Know Your Rights: Housing, Justice Initiatives https://www.michbar.org/file/programs/cii/pdfs/housing_rights.pdf|
|See Tina Rosenberg, Have You Ever Been Arrested? Check Here, N.Y. Times, May 24, 2016, https://www.nytimes.com/2016/05/24/opinion/have-you-ever-been-arrested-check-here.html|
|See MICH. COMP. LAWS ANN. § 333.20173a (WEST 2018).|
|See § 712A.18e|
|See Jeffery T. Ulmer et. al., The Age and Crime Relationship: Social Variation, Social Explanations, Sage Publications, https://www.sagepub.com/sites/default/files/upm-binaries/60294_Chapter_23.pdf|
|See Ed Bruske, Youth Act Repealed, Washington Post, Oct. 13, 1984, https://www.washingtonpost.com/archive/local/1984/10/13/youth-act-repealed/bc7189d0-1f2e-4881-a633- 6b938d053fe7/?utm_term=.b7915c26e704|
|See Megan C. Kurlycheck, et. al., Scarlet Letters and Recidivism: Does An Old Criminal Record Predict Future Offending, 5 Criminology & Public Policy 483, 483 (2006).|
|Emily Lawler, New Michigan law certifies former felons as employable, aims to reduce prison re-entry, Lansing News (Dec. 17, 2014), https://www.mlive.com/lansing- news/index.ssf/2014/12/new_law_certifies_former_felon.html|
|See Michigan Law Protects Employers Hiring Ex-Offenders with Certificate of Employability, Employment Screening Resources (Jan. 21, 2015), https://www.esrcheck.com/wordpress/2015/01/21/michigan-law-protects- employers-hiring-ex-offenders-with-certificate-of-employability/|
|See Recidivism, National Institute of Justice (June 17, 2014), https://www.nij.gov/topics/corrections/recidivism/Pages/welcome.aspx|
|See Anders Hakansson, et. al., Risk factors for criminal recidivism – a prospective follow-up study in prisoners with substance abuse, 12 BMC Psychiatry 111 (2012).|
|See Kurlycheck supra|
|See Murat C. Mungan, Reducing Crime through Expungements, 137 Journal of Economic Behavior & Organization 398, 398 (2017).|
|See S.K. London, Longer jail sentences do deter crime, but only up to a point, The Economist, Mar. 29, 2016, https://www.economist.com/free-exchange/2016/03/29/longer-jail-sentences-do-deter-crime-but-only-up-to-a-point|
|See Tresa Baldas, Feds weave talk of crooked cops, big money, big schemers, Detroit Free Press, July 2, 2016, https://www.freep.com/story/news/local/michigan/detroit/2016/07/02/crooked-narcotics-cops-david- hansberry/86604700/|
|Amanda Agan, et. al., Ban the Box, Criminal Records, and Racial Discrimination: A Field Experiment, 133 The Quarterly Journal of Economics 191, 191 (2018).|