*Update (10/12/20): Gov. Whitmer signed the legislation into law.

On September 23, the Michigan legislature approved a series of bills that would dramatically reform that state’s “set-aside” authority, colloquially known as “expungement.” The bills, which are headed to Gov. Gretchen Whitmer for signature, would significantly expand eligibility for expungement under the existing petition-based application system, and establish a new automatic mechanism to expunge certain convictions without a person having to ask for it.

It is estimated that the bills will make hundreds of thousands of Michiganders eligible for expungement for the first time, and that relief will be delivered automatically to a significant percentage of them when the automatic feature becomes operative in October 2022. The other provisions of the bills are effective immediately.

This package would make Michigan the sixth state to enact an automatic conviction-sealing law covering a range of offenses. It would also make Michigan the third state to make relief automatic for some felony convictions, joining New Jersey and California. (An additional three states plus California have enacted more specialized laws to automatically seal low-level marijuana convictions.)

The specific provisions of the Michigan bills, as well as automatic sealing laws in other states, are discussed below.

Michigan set-aside law

Under current Michigan law, eligibility for expungement is quite restrictive: a person may seek expungement either for a single felony conviction (as long as the person has no more than two misdemeanors) or for no more than two misdemeanors (as long as they are the person’s only convictions). The person whose felony is set-aside thus cannot also seek set-aside for their misdemeanors. This convoluted scheme has put Michigan about in the middle of the pack where eligibility for conviction expungement is concerned, and it received a combined grade of “C” in our recent 50-state report, “The Many Roads to Reintegration.”

Set-aside under Michigan’s existing law is discretionary with the court, which must consider the “circumstances and behavior of the applicant” and determine whether “setting aside the conviction is consistent with the public welfare.”   § 780.621(9). Except in the case of victims of human trafficking, “the setting aside of an adjudication under this section is a privilege and conditional and is not a right.”  § 780.621(15). An important empirical study by J.J. Prescott and Sonja B. Starr of Michigan Law School found that among those eligible for relief (under an earlier but similar iteration of this law), just 6.5% sought to obtain it within five years of eligibility.

Michigan’s new set-aside law

One of the bills in Michigan’s legislative package (whose details are described below) expands petition-based relief to an unlimited number of less serious misdemeanors, and up to three felonies, giving Michigan one of the broadest expungement laws in the country. But the most significant bill in the package, HB4980, would establish an automatic mechanism to expunge convictions, such that relief would be granted without a person having to file any petition at all or even indicating that they wanted it.

Eligibility for automatic set-aside is not the same as eligibility for petition-based relief as expanded, making the bills an interpretative and descriptive challenge. That task is not facilitated by the fact that the Michigan legislature’s “single issue” rule evidently required a separate bill for each aspect of the total package deemed to deal with a free-standing issue.

Specifically, an unlimited number of minor misdemeanors would be expunged automatically seven years after imposition of sentence; and, up to four more serious misdemeanors and up to two felonies eligible for relief under the expanded petition-based standards (see below) would be automatically expunged 7 or 10 years after imposition of sentence or release from imprisonment, respectively, provided that the conditions in the petition-based standards are met (no pending charges in the state database, no additional convictions in the waiting period). In the case of more serious misdemeanors and felonies, a person with more than one conviction for an assaultive crime (broadly defined) is ineligible for relief. Also, a broad range of crimes involving violence or dishonesty, or subject to a lengthy sentence, are ineligible for automatic relief.  While restitution and other court debt need not be paid for a conviction to be expunged, a court may reinstate a conviction if a person “has not made a good-faith effort to pay” restitution.

Michigan’s bill would require its automatic relief system to be made operational two years after the effective date of the law, “subject to any necessary appropriation,” as well as a potential one-time 180-day extension at the governor’s request if she determines that the automatic relief cannot be implemented by the deadline “because of technological limitations.”

Other automatic conviction-sealing laws

Between 2016 and 2019, five states enacted automatic conviction-sealing laws covering a range of offenses. Only two states, South Dakota and Pennsylvania, have as yet made their laws operational. South Dakota’s 2016 law was the nation’s first automatic conviction-sealing law, although it applies only to Class 2 misdemeanors after a 10-year waiting period. Pennsylvania’s more expansive Clean Slate Act of 2018 put automatic sealing on the map, making Class 2 and 3 misdemeanors and some Class 1 misdemeanors eligible, also after a ten-year waiting period.

Both Utah and New Jersey enacted automatic sealing in 2019: Utah’s law authorizes automatic relief for essentially the same range of convictions as Pennsylvania’s law, while New Jersey’s law authorizes automatic relief for a single non-violent felony and up to three misdemeanors. Like the South Dakota and Pennsylvania laws, both apply retroactively. Neither state has yet put in place a system for implementing their laws, and neither appears to have a statutory deadline for coming online. In the interim, New Jersey’s law provides an alternative way to access its “clean slate” relief by petitioning the court. If a person is determined to be eligible, the court must grant relief.

California’s 2019 law applies only prospectively, to convictions entered on or after January 1, 2021, for a misdemeanor or for a felony for which probation is imposed. The law provides that the it “shall be operative” by that date, “subject to an appropriation in the annual Budget Act.”

Michigan’s expanded petition-based relief

The remaining six bills reorganize Michigan law concerning petition-based relief, for the most part expanding eligibility for set-aside for an unlimited number of non-assaultive misdemeanors and up to three felonies:

• HB4984: expands petition-based eligibility to an unlimited number of misdemeanors and up to three felonies, provided that no more than two convictions for assaultive crimes may be set-aside in a person’s lifetime, and not more than one conviction for the same offense may be set-aside if the offense is punishable by more than 10 years in prison.
• HB4985: provides that in counting convictions, crimes in the same 24-hour period arising from the same transaction are counted as a single offense unless they involve violence, guns, or a maximum sentence of 10+ years in prison.
• HB4981: specifies that set-aside is not available for felonies punishable by a life sentence; specified sex offenses; traffic offenses if they involved alcohol, injury or commercial licensees; and a felony domestic violence conviction if the person has a misdemeanor domestic violence conviction.
• HB4983: sets new waiting periods for seeking set-aside: more than one felony requires 7 years; one felony, or 2+ serious or assaultive misdemeanors requires 5 years; other misdemeanors require 3 years.  These periods run from the latest of the following: imposition of sentence, completion of incarceration, and completion of supervision.
• HB4982: streamlines petitions for marijuana misdemeanors with a presumption in favor of set-aside for offenses that have been decriminalized.
• HB5120: provides for a rehearing or appeal where set-aside of a marijuana misdemeanor is denied; and provides that where a marijuana misdemeanor has been set aside, a person may not seek resentencing in another case where the marijuana conviction was used to determine the sentence.