Restoration of Rights & Record Relief
Last updated: October 24, 2022
I. Loss & restoration of civil/firearms rights
A. Civil rights
A person who has been convicted and sentenced “for a crime for which the penalty imposed is confinement in jail or prison” is disqualified from voting “while confined.” Mich. Comp. Laws § 168.758b. See also Mich. Const. art. 2, § 2. Disqualification while confined also applies to misdemeanants. See U.S. v. Wegrzyn, 305 F.3d 593 (6th Cir. 2002). A person on probation or parole is not considered “confined.”
A person convicted of a felony is permanently disqualified from jury service unless the conviction is pardoned or set aside. Mich. Comp. Laws § 600.1307a(1)(e).1 Only certain convictions result in disqualification from office, see, e.g., Mich. Const. Art. 4, § 7 (person convicted of breach of public trust within last 20 years is ineligible for either house of legislature); Mich. Comp. Laws § 750.118 (public officer who accepts a bribe is “forever disqualified” from public office).
Under Mich. Comp. Laws § 750.224f(1), a person convicted of a felony may not possess firearms until three years after completion of all the terms of the sentence, including probation or parole, except that persons convicted of a “specified felony” (generally involving the use of force, explosive or firearm, controlled substances, burglary) remain subject to the disability until 1) five years after the completion of the sentence and 2) their firearm privileges have been restored pursuant to the administrative procedure set forth in Mich. Comp. Laws § 28.424, described below.
A person whose firearms privileges were lost because of conviction may regain them by applying to the “concealed weapons licensing board” for the county of his residence. The board “shall, by written order” restore the person’s firearms privileges if it finds by clear and convincing evidence that five years have passed since the person completed his sentence, and that “the person’s record and reputation are such that the person is not likely to act in a manner dangerous to the safety of other persons.” Mich. Comp. Laws § 28.424(3)(c). If the concealed weapons licensing board refuses to restore a right under this section, the aggrieved person may petition the circuit court for review of that decision. Id. at § 28.424(3)(d). This section “does not apply to a conviction that has been expunged or set aside, or for which the person has been pardoned, unless the expunction, order, or pardon expressly provides that the person shall not possess a firearm.” § 750.224f(4).
C. Collateral consequences
See Miriam Aukerman, Collateral Consequences of Criminal Convictions, A Legal Outline for Michigan, Dec. 5, 2008, available at http://www.sado.org/content/guides/collateral.pdf. Other Michigan-specific reentry resources are collected at Michigan Reentry Law Wiki, Michigan Poverty Law Program, at http://reentry.mplp.org/reentry/index.php/Main_Page.
II. Pardon policy & practice
The pardon power, except in cases of impeachment, is vested in the governor, “subject to procedures and regulations prescribed by law.” The governor is required to inform the legislature annually of each pardon granted, “stating reasons therefor.” Mich. Const. Art. 5, § 14.
The governor is required to obtain a recommendation from the Parole Board prior to deciding each case, but is not bound by it. See Mich. Comp. Laws §§ 791.243, 791.244. See also Rich v. Chamberlain, 62 N.W. 584 (Mich. 1895) (statute providing that a board of pardons will investigate petitions for pardons and report to the governor with such recommendations as they deemed fit, and that the governor, on receipt of such report, might, as he deemed fit, grant or refuse the pardon, did not violate constitution). In 2011, Governor Snyder signed a new executive order that abolished the Michigan Parole and Commutation Board (a 15-member board which had been established by his predecessor), and established a 10 member Michigan Parole Board, consisting of non-Civil Service employees who are appointed by the Director of the Michigan Department of Corrections. See Executive Order 2011-03 (effective April 15, 2011), available at http://www.legislature.mi.gov/documents/2011-2012/executiveorder/pdf/2011-EO-03.pdf. See also http://www.michigan.gov/corrections/0,4551,7-119-1435_11601-61290–,00.html (giving history of Parole Board).
No eligibility requirements for people with Michigan offenses. A person convicted under federal law or the law of another state is ineligible for a gubernatorial pardon.
The Parole Board website provides that
a pardon erases a conviction from an individual’s record. The Michigan Supreme Court has held that the effect of a pardon by the Governor is such that it “releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” People v. Van Heck, 252 Mich.App. 207, 216; 651 N.W.2d 174, 179 (2002). A pardon is an extraordinary form of relief for someone convicted of a crime and is extremely rare.
http://www.michigan.gov/corrections/0,4551,7-119-1435_11601-223452–,00.html (explaining the clemency process).
Mich. Comp. Laws § 791.243 provides that all applications for executive clemency must be filed with the Parole Board. Procedures governing clemency hearings are set forth in § 791.244.2 The contents of the pardon application are specified at Mich. Admin. Code r. 791.7760, which also specifies the procedures for applying for pardon.
The Parole Board website provides an application form, which explains that in certain cases judicial set-aside relief may be available (see Part II.B below) and that the board “will not process [a pardon application] where expungement is available to the petitioner as an appropriate remedy.” See paragraph 5 of the “Application for Pardon after Probation, Parole or Discharge,” https://www.michigan.gov/documents/corrections/application_for_pardon_after_probation_parole_ordischarge_330607_7.pdf. The form seeks detailed information on the applicant’s crime, his employment history, his contributions to the community, and his need for pardon.
Mich. Comp. Laws § 791.244 describes the procedure for investigating pardon applications, setting time limits on each stage. One member of Board must interview any person convicted of murder in the first degree or serving a life sentence without parole at the conclusion of ten years. Mich.Comp. Laws § 791.244(1). Unless upon the initiation of the Board, the Board must initiate a review within 60 days of receiving an application for clemency to determine whether an application has merit, and must make a full investigation and determination on whether or not to proceed to a public hearing within 270 days of initiation by the Board or receipt of a meritorious application. §§ 791.244(2)(a), (e).
A hearing must be held within 90 days. At least 30 days before conducting the public hearing, the Board must provide written notice of the public hearing by mail to the attorney general, the sentencing trial judge, and the prosecuting attorney, or their successors in office, and each victim who requests notice pursuant to the crime victim’s rights act. One member of the Board may conduct the hearing, and the public shall be represented by the Attorney General or a member of the attorney general’s staff. If the parole board recommends executive clemency, it shall make all data in its files available to the governor. Except for medical records protected by the doctor-patient privilege of confidentiality, the files of the parole board in cases under this section shall be matters of public record. The recommendation of the Board is a matter of public record. See generally §§ 791.244(2)(f)-(j), (3).
F. Frequency of Grants
Governor Rick Snyder granted a total of 72 pardons during his two terms (2011-2019), out of a total of more than 4000 applications reviewed by his administration. See Snyder pardons, shortens terms of 61 Michigan offenders, https://www.detroitnews.com/story/news/local/michigan/2018/12/21/snyder-pardons-61-michigan-offenders/2392959002/. At the end of his first four-year term he issued 11 grants out of 750 applications considered. Most of the grants went to individuals convicted of dated minor crimes: See http://www.freep.com/story/news/local/michigan/2015/02/06/gov-snyder-pardons-michigan/22972283/ (“Most of them were people who made mistakes early in their lives and have been good citizens for decades,” Snyder spokesman Dave Murray said Thursday. “The earlier mistake they made was holding them back from a job, a passport.”) However, one of the eleven pardons went to well-connected businessman Alan Gocha whose case created a firestorm of controversy. See http://www.freep.com/story/opinion/columnists/brian-dickerson/2015/04/18/snyder-pardon/25964847/.
Prior to 2011, post-sentence pardons had been infrequent in Michigan for many years. Between 1969 and 2006, only 34 pardon applications were approved by the governor. As collateral consequences have grown more severe in recent years, the number of applications for pardon filed has steadily increased. While former-Governor Granholm was aggressive in her use of the pardon power to shorten prison sentences,3 she granted fewer than twenty post-sentence pardons during her eight years in office (2003-2011). Source: Michigan Parole & Commutation Board.
Michigan Department of Corrections
Office of the Parole Board
Pardons and Commutations Coordinator
Post Office Box 30003
Lansing, Michigan 48909
III. Expungement, sealing & other record relief
A. Set-aside and sealing of convictions
Eligibility for record relief for convictions under Michigan law was limited to a single conviction prior to the enactment of a series of bills in October 2020. Moreover, relief by set-aside was discretionary with the court, considering the “circumstances and behavior of the applicant” to 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.
The bills enacted in October 2020, described below, significantly expanded eligibility for petition-based set-aside and sealing of conviction records, effective April 2021, and an automated process for set-aside and sealing was authorized for a narrower range of convictions at the same time. The automated process, which is scheduled to become operational in 2023, is described in section B. The petition-based criteria in effect prior to April 2021 are described below, followed by the new criteria applicable to convictions after April 1, 2021. The process and effect of petition-based set-aside remains the same.
The Michigan Attorney General has a website that explains eligibility criteria and process for obtaining a set-aside, including a procedural checklist for each category of criminal record. https://www.michigan.gov/ag/0,4534,7-359-82917_104464—,00.html. The website explains that “[t]he ‘automatic’ expungement law is going into effect likely no earlier than 2023.”
Eligibility for set-aside by petition prior to April 2021: A person convicted of a single felony offense (not including offenses potentially subject to a life sentence) may petition the convicting court to “set aside” the conviction five years after imposition of sentence, completion of probation or parole, or release from prison, whichever is later, as long as the applicant has no more than two prior “misdemeanors.” Mich. Comp. Laws §§ 780.621(1)(a), (5). Multiple charges in a single case are counted as separate convictions. See People v. Blachura, 440 N.W.2d 1, 2 (Mich. Ct. App. 1989) (person convicted of five counts of perjury ineligible since each count deemed a separate conviction). In addition, a person convicted of “not more than 2 misdemeanor offenses and no other felony or misdemeanor offenses may petition the convicting court or the convicting courts to set aside 1 or both of the misdemeanor convictions.” § 780.621(1)(b). (A traffic offense does not constitute a misdemeanor, unless it has been for operating while intoxicated). The eligibility waiting period runs from completion of probation or incarceration, whichever is later. § 780.621d(1) and (2). 4 A conviction of any felony or attempt to commit any felony punishable by life in prison is ineligible for set-aside, as are certain traffic offenses and sex offenses. § 780.621(3). A first drug conviction that was deferred and dismissed under Mich. Comp. Laws § 333.7411, whether a misdemeanor or a felony, shall be considered a misdemeanor conviction for purposes of determining whether a person is eligible to have any conviction set aside. § 780.621(2). See section IIIB below.
Eligibility for set-aside by petition after April 2021:
- 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. Procedures for petitioning for relief and the effect of relief remain the same as under existing law.
- 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 a serious or assaultive misdemeanor 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. § 780.621d(1). There may be no charges pending or convictions during the waiting period. § 780.621d(4)(c).
The procedure applicable to set-aside is set forth in full, including document service requirements and notification to the attorney general and prosecuting attorney and, if an assaultive crime, to the victim, in Mich. Comp. Laws §§ 780.621d(5) through (14). A full adversary hearing may be required. Set-aside 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.” § 780.621d(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.” § 780.621d(15).
Upon entry of an order setting aside the conviction, an individual “shall be considered not to have been previously convicted.” Mich. Comp. Laws § 780.622(1), (3). The court “shall send a copy of the order to the arresting agency and the department of state police,” which shall retain a nonpublic record of the case. § 780.623(1). This set-aside authority is commonly referred to as the “general expungement statute,” and a record that has been set aside may be “made nonpublic or confidential” by order of the court under Michigan Court Rule 8.119(I). Under Rule 8.119(I), a party may move the court to make any record nonpublic, identifying the specific interest to be protected. The court must make a finding of “good cause” and that there is “no less restrictive means to adequately and effectively protect the specific interest asserted.” In making the good cause determination, the court must consider the interests of the parties and of the public, and offer any interested person an opportunity to be heard. The only limitation on this authority is that “a court may not seal a court order or opinion, including an order or opinion that disposes of a motion to seal the record.” Under MCR 8.119(D),”Documents and other materials made nonpublic or confidential by court rule, statute, or order of the court pursuant to subrule (I) must be designated accordingly and maintained to allow only authorized access.”
A chart from the Michigan Courts’ website makes clear that among the records that may be made non-public under MCR 8.119(I) are records of a case where the conviction has been set aside: “Records should be maintained to ensure they are not subject to public inspection. A person who knows or should know that a conviction was set aside and who divulges, uses, or publishes information concerning a conviction set-aside is guilty of a misdemeanor. Court response to inquiries: ‘There is no public record.’ The existence of records governed by MCL 780.621, 780.623 and MCR 8.119(D) cannot be acknowledged.”
A conviction that has been previously set aside is counted for purposes of determining eligibility for later set-aside, but a conviction that has been the subject of a full and unconditional pardon does not count. See Van Heck, 651 N.W.2d at 178-79 (contrasting limited effect of Michigan set-aside with Connecticut pardon, which wipes out all legal disabilities, “erases” conviction).
A conviction that has been set aside and sealed remains accessible to law enforcement and the judicial branch for a variety of purposes, including professional licensure by the judicial branch, and enhancement of a sentence in subsequent prosecution. Mich. Comp. Laws § 780.623(3).5
People required to register as sex offenders must continue to register even if a conviction is set aside. Id. See also Mich. Op. Att’y Gen. No. 7133 (2003) (person convicted of a felony whose conviction has been set aside by order of a Michigan court may not be denied a concealed pistol license based on conviction alone, but the conduct may be taken into account). A person who knows that a conviction was set aside under this section and who divulges, uses, or publishes information concerning such a conviction is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both. Mich. Comp. Laws § 780.623(5). However, the effect of a set-aside under Michigan law is not considered to be as broad as pardon in some other states. See Van Heck, supra.
First Offense DUI – In 2021, the legislature passed for the second time, and the governor agreed to sign, three bills dealing with set aside and sealing of first offense DUI/OWI. (In 2020, the bill had been pocket vetoed.) House Bills 4219 and 4220 allow a person to apply to have set aside, and allow a judge to set aside, a first violation operating while intoxicated (OWI) offense. Certain violations, such as a drunk or drugged driving offense that caused the death or serious impairment of a bodily function of another person and any second or subsequent convictions for a drunk or drugged driving offense, would not be included in the offenses eligible to be set aside under the bills. Senate Bill 400 increases the waiting period before a person may petition a court to set aside a first violation OWI offense from three years to five years. The bills are explained at the legislature’s website at http://www.legislature.mi.gov/documents/2021-2022/billanalysis/House/pdf/2021-HLA-4219-813A3759.pdf.
B. Automated set-aside relief for certain convictions
HB4980, signed by Governor Whitmer in October 2020, authorizes automatic expungement of certain 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 at the same time. Specifically, an unlimited number of minor misdemeanors (punishable by less than 93 days in prison) would be expunged automatically seven years after imposition of sentence; and, up to four more serious misdemeanors and up to two less serious felonies 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). The requirement of completing supervision in the petition-based system was omitted. In the case of more serious misdemeanors and eligible felonies, a person with more than one conviction for an assaultive crime (broadly defined) is ineligible for automatic relief. Also, a broad range of crimes involving violence or dishonesty (including “serious misdemeanors” as defined in Mich. Comp. Laws §780.811), or subject to a prison sentence of 10 years or more, or involving driving while impaired or human trafficking, are ineligible for automatic relief.
Restitution and other court debt need not be paid for a conviction to be expunged, but a court may reinstate a conviction if a person “has not made a good-faith effort to pay” restitution.
The law requires the 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.” The website of the state attorney general states that “[t]he ‘automatic’ expungement law is going into effect likely no earlier than 2023,” and that “[p]rocesses for identification and expungement of convictions eligible for automatic expungement are being developed by multiple state agencies.”6
C. Probation before Judgment for first drug offenses
Mich. Comp. Laws § 333.7411 – Discharge and dismissal under this section for a person with no previous drug conviction shall be without adjudication of guilt and, except as provided in subsection (2)(b), is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under section 333.7413. See § 333.7411(1). A conviction that was deferred and dismissed under this authority, whether a misdemeanor or a felony, shall be considered a misdemeanor conviction for purposes of determining whether a person is eligible to have any conviction set aside. § 780.621(2). Nonpublic records are kept by the state police and are available to law enforcement and court. See §§ 333.7411(2), (3). See also § 769.4a (domestic violence deferred adjudication).
D. Recreational marijuana possession
In 2018 recreational marijuana use by those over 21 was legalized by Proposition 1, and individual prosecutors were authorized to consider past convictions for dismissal and expungement. In October 2020, a streamlined process for setting aside marijuana misdemeanors was enacted, effective immediately. HB4982: streamlines petitions for marijuana misdemeanors with a presumption in favor of set-aside for offenses that have been decriminalized. Mich. Comp. Laws § 780.621e.
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. § 780.621f.
E. Victims of human trafficking
A person who is convicted of a prostitution and related offenses may apply to have that conviction set aside if he or she committed the offense as a direct result of his or her being a victim of a human trafficking violation.
Mich. Comp. Laws § 780.621(4). See House Bill 5025, Mich. Comp. Laws §§ 780.621(3) (as amended by 2014 Mich. Pub. Acts 64).
F. Non-conviction records
Where an arrested person is released without charges, law enforcement agencies and the Michigan State Police (MSP) are required to “destroy” any biometric and arrest records. See Mich. Comp. Laws § 28.243(3)(7). If charges are brought against the arrested individual but dismissed before trial, and if the court or prosecutor does not object within 60 days, the MSP is required to “remove” the arrest record from the internet records system and “any entry concerning the charge” from the law enforcement information network, “upon receipt of an appropriate order issued by the district court or the circuit court.” See §§ 28.243(3)(8), (3)(9); § 764.26a. Moreover, any biometric and arrest records “shall be expunged or destroyed, or both, as appropriate.” Id. Finally, if an accused is found not guilty, or if a decision is made not to proceed with a prosecution, “the biometric data and arrest card must be destroyed by the official holding those items when the clerk of the court entering the disposition shall notify the department of any finding of not guilty or nolle prosequi.” § 28.243(3)(10).
Michigan Courts have a policy of making their own corresponding records non-public in any situation covered by the statutes applicable to law enforcement agencies and the MSP discussed above. However, these non-conviction records are not included in the chart from the Michigan Courts’ website referred to above that lists the various court records that may be made non-public.
G. Juvenile Adjudications
One year after adjudication or release from detention, or upon attaining the age of 18, whichever is later, a person may apply to the adjudicating court to set aside and seal up to four delinquency adjudications, only one of which may qualify as a felony if committed by an adult. Mich. Comp. Laws § 712A.18e, as amended by H.B. 5600 (effective December 28, 2012).7 Certain adjudications are ineligible (felony-level adjudications punishable by life imprisonment, designated violent and traffic offenses). § 712A.18e(2). A person is ineligible for set-aside if they have a subsequent adult felony conviction. § 712A.18e(1). The procedure applicable to set-aside is similar to that required for adult set-asides (see above) and is set forth in §§ 712A.18e(5) through (7). Per SB681 (2020) the court was made responsible for locating relevant documents, but the applicant is responsible for serving them on the prosecuting attorney and, if an assaultive crime, to the victim. Before granting a set-aside, the court must determine “that the circumstances and behavior of the applicant from the date of the applicant’s adjudication to the filing of the application warrant setting aside [the adjudication(s)]”. § 712A.18e(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.” § 712A.18e(9). If an adjudication is set aside, a person may deny the existence of a juvenile record, § 712A.18e(11), and the record may not be disclosed or used except for law enforcement purposes, for law enforcement employment, or for licensing by an agency of the judicial branch. § 712A.18e(13). Traffic offenses, however, are not expunged from driving records. § 712A.18e(17). Disclosure of an adjudication that has been set aside is punishable as a misdemeanor. § 712A.18e(16).
Juvenile clean slate: Per a new § 712A.18t enacted by SB681, eligible juvenile records will be automatically set aside and sealed two years from July 3, 2021 .
Beginning January 1, 2021 the records of a juvenile case will no longer be open to the general public but “only to persons having a legitimate interest,” defined to include the juvenile, their parents or guardians, law enforcement, and certain agencies with responsibility for juvenile custody. Mich. Comp. Laws § 712A.28, as amended by SB682.
IV. Criminal record in employment & licensing
Under Michigan law governing occupational license, originally adopted in 1974 and amended in 2020, a person with a criminal record may be required to establish “good moral character” in order to obtain a license. Under § 338.41(1),“the phrase ‘good moral character’, or words of similar import, when used as a requirement for an occupational or professional license or when used as a requirement to establish or operate an organization or facility regulated by this state . . . shall be construed to mean the propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner.”
In 2020, HB4488 and succeeding bills modified how the phrase “good moral character” is to be interpreted and implemented in connection with specific types of licenses. Under § 338.42(2), as amended, a licensing agency may not consider conviction as evidence in determining “good moral character” unless the conviction is of a felony and the agency concludes that “the specific offense for which the individual was convicted has a direct and specific relationship to the activities authorized by the occupational or professional license;” that the offense “involves a demonstrable risk to the public safety;” the convicted individual, based on the nature of the offense, “is more likely to commit a subsequent offense because he or she has the occupational or professional license than if he or she does not have the occupational or professional license;” and “A subsequent offense committed with the aid of the occupational or professional license will cause greater harm to the public than it would if the individual did not have the occupational or professional license.” This standard does not apply to licensure in connection with facilities for childcare or eldercare, nursing homes, adult foster care facilities, and attorney licenses. §§ 338.42(3); 600.934. In connection with determining an individual’s “good moral character”, a licensing board must also consider an individual’s certificate of employability, if any, and any additional information about his or her current circumstances, such as how long ago the offense occurred, whether he or she completed the sentence for the offense, other evidence of rehabilitation, testimonials, employment history, and employment aspirations as evidence in the determination of an individual’s good moral character under subsection (2) or (3).” § 338.42(4). In addition, SB 293 (2020) requires the Department of Licensing and Regulatory Affairs to submit an annual report to the legislature by December 1 of each year with the “number of applications denied by the department because of an applicant’s lack of good moral character and a summary, by category of offense, of the criminal convictions on which those denials were based.” § 339.441(9)(d).
In addition, as under the 1974 act, the following types of records “shall not be used, examined, or requested by a licensing board or agency in a determination of good moral character when used as a requirement to establish or operate an organization or facility regulated by this state, or pursuant to occupational or professional licensure”:
(a) Records of an arrest not followed by a conviction.
(b) Records of a conviction which has been reversed or vacated, including the arrest records relevant to that conviction.
(c) Records of an arrest or conviction for a misdemeanor or a felony unrelated to the person’s likelihood to serve the public in a fair, honest, and open manner.
(d) Records of an arrest or conviction for a misdemeanor for the conviction of which a person may not be incarcerated in a jail or prison.
Mich. Comp. Laws § 338.43(1). See Miriam J. Aukerman, Barriers to Reentry: Legal Strategies to Reduce Recidivism and Promote the Success of Ex-offenders, 2 Mich. Crim. L. Ann. J. 4 (2003). A criminal record “shall not be furnished to a licensing board or agency except by the principal department, and shall be furnished only after the director of the principal department or a person designated by the director has determined that the information to be provided to the board or agency meets the criteria set forth in this section.” § 338.43(2).
The 1974 act provides that each licensing board or agency is required to promulgate rules prescribing “the offenses or categories of offenses which the department considers indicate a person is not likely to serve the public as a licensee in a fair, honest, and open manner.” Mich. Comp. Laws § 338.43(3). The statute provides for a statement of reasons in the event of denial on grounds of good moral character, including a complete record of the evidence upon which the determination was based, and it provides a right to administrative “rehearing if he or she has relevant evidence not previously considered, regarding his or her qualifications.” § 338.45. Judicial review is also provided: “If, in the opinion of the circuit court, the record does not disclose a lack of good moral character, as defined in this act, the court shall so state and shall order the board to issue the license. . . .” § 338.46.
In 2021, HB4493 included in each licensing board’s annual reporting requirement “the number of applications denied by the department because of an applicant’s lack of good moral character and a summary, by category of offense, of the criminal convictions on which those denials were based.” Mich. Comp. Laws § 338.46.
Ban the box in state employment
In September 2018, Governor Rick Snyder issued E.D. No. 2018-4, directing that state departments and agencies shall not include questions about criminal history or convictions in job postings or applications, but these inquiries and background checks may be conducted later in the hiring process. Excluded are positions for which state or federal law prohibits hiring candidates with criminal histories. Also excluded are the Departments of State and Attorney General, which are encouraged to comply voluntarily.
Misdemeanor arrest records
Employers, employment agencies, and labor organizations are prohibited from requesting or “making record of” misdemeanor arrests not leading to conviction in connection with employment application, Mich. Comp. Laws § 37.2205a(1), but they are not prohibited from considering arrest in connection with termination of employment. See Aho v. Mich. Dep’t of Corrs., 688 N.W.2d 104 (2004).
Certificate of Employability
Under a 2014 law, Michigan prisoners who complete certain programs and have a reasonably clear conduct record may qualify for a “Certificate of Employability.” See Mich. Comp. Laws § 791.234d. Under this provision, an employer or other person may introduce a “Certificate of Employability” as evidence of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with someone who has the certificate, if the employer knew of the certificate when hiring or otherwise engaging in activity with that person. The Michigan Department of Corrections is authorized to issue Certificates only to incarcerated people no more than 30 days before release if the prisoner successfully completed a career and technical education course, received no major misconducts during the two years preceding his or her release, and qualifies for a national work-readiness certificate. The Certificate is only valid for 4 years after issuance. Considering that nearly 80% of felony offenders since 1999 have been sentenced to community-based sanctions, the vast majority of those with a felony record will not be eligible for a Certificate. Also ineligible are those who are no longer incarcerated. Finally, people currently at MDOC will be eligible only if they have access to education and training programs, which vary by facility throughout the state.
- In 2002 conviction was made a permanent bar to jury service; previously a person was ineligible only while “under sentence for a felony at the time of jury selection.” See Mich. Comp. Laws § 600.1307a(1)(e) (2002), amended by 2002 Mich. Pub. Acts 739. Court rules provided that a convicted person could be challenged for cause based on his conviction. Mich. Ct. R. 2.511(D)(2), 6.412(D). See United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), cert. denied, 506 U.S. 1083 (1993) (upholding challenge for cause under Mich. Ct. R. 2.511(D)(2)). But see Froede v. Holland Ladder & Mfg. Co., 523 N.W.2d 849, 851-52 (Mich. Ct. App. 1994) (disagreeing with Sixth Circuit’s conclusion in Driscoll that right to serve on a jury is not automatically restored upon completion of sentence); People v. LeGrone, 517 N.W.2d 270, 272 n.1 (Mich. Ct. App. 1994), appeal denied, 527 N.W.2d 520 (Mich. 1994) (raising question whether Mich. Comp. Laws § 600.1307a(1)(e) takes precedence over Mich. Ct. R. 2.511).
- In Lewis-El v. Sampson, 649 F.3d 423 (6th Cir. 2011), the court of appeals held that a change to Michigan’s commutation procedures did not implicate ex post facto concerns because the petitioner did not show prejudice: “In fact, [prejudice] would be almost impossible to demonstrate considering that the decision to commute a prisoner’s sentence is so tied to the personal predilections of the person occupying the governor’s office.”
- Between 2007 and 2010, Governor Granholm commuted more than one hundred prison sentences. See, Gov. Jennifer Granholm OKs Clemency for 100 Inmates in 2 years, Assoc. Press (Jan. 17, 2010), available at http://www.mlive.com/news/index.ssf/2010/01/gov_jennifer_granholm_oks_clem.html (describing over 100 commutations granted by Michigan Governor Granholm to ease prison budget crisis). In one of her last acts as Governor, she attempted to retract a commutation granted to Matthew Makowski, an action later invalidated by the Michigan Supreme Court. See Makowski v. Governor, 495 Mich. 465; 852 N.W.2d 61 (2014).
- Prior to 2014, set-aside was available only for one conviction, either felony or misdemeanor, and the only permissible priors were “minor offenses,” defined as a misdemeanor or ordinance violation for which the maximum permissible imprisonment did not exceed 90 days, for which the maximum permissible fine did not exceed $1,000.00, and that was committed by a person who is not more than 21 years of age. § 780.621(10). Multiple charges in a single case were counted as separate convictions. See People v. Blachura, 440 N.W.2d 1, 2 (Mich. Ct. App. 1989) (person convicted of five counts of perjury ineligible since each count deemed a separate conviction).
- (1) Upon the entry of an order under section 1, the court shall send a copy of the order to the arresting agency and the department of state police. (2) The department of state police shall retain a nonpublic record of the order setting aside a conviction and of the record of the arrest, fingerprints, conviction, and sentence of the applicant in the case to which the order applies. Except as provided in subsection (3), this nonpublic record shall be made available only to a court of competent jurisdiction, an agency of the judicial branch of state government, the department of corrections, a law enforcement agency, a prosecuting attorney, the attorney general, or the governor upon request and only for the following purposes:
(a) Consideration in a licensing function conducted by an agency of the judicial branch of state government.
(b) To show that a person who has filed an application to set aside a conviction has previously had a conviction set aside under this act.
(c) The court’s consideration in determining the sentence to be imposed upon conviction for a subsequent offense that is punishable as a felony or by imprisonment for more than 1 year.
(d) Consideration by the governor if a person whose conviction has been set aside applies for a pardon for another offense.
(e) Consideration by the department of corrections or a law enforcement agency if a person whose conviction has been set aside applies for employment with the department of corrections or law enforcement agency.
(f) Consideration by a court, law enforcement agency, prosecuting attorney, or the attorney general in determining whether an individual required to be registered under the sex offenders registration act, 1994 PA 295, MCL 28.721 to 28.736, has violated that act, or for use in a prosecution for violating that act.
- The website of the state attorney general referenced above states clean slate eligibility criteria as follows:
Up to 2 felony convictions will automatically be expunged the later of 10 years after sentencing or the person’s release from custody.
Up to 4 misdemeanors will automatically be expunged 7 years after sentencing.
The following convictions are not going to be eligible for automatic expungement:
- convictions for “assaultive crimes“
- convictions for “serious misdemeanors“
- convictions for offenses punishable by 10 or more years imprisonment
- convictions that involve a minor, a vulnerable adult, injury or serious impairment of a person, death of a person
- convictions that involve human trafficking
- any conviction that cannot be expunged under new MCL 780.621g.
- Prior to passage of the 2012 amendments to § 712A.18e, only one misdemeanor-level conviction was eligible for set-aside. To be eligible, the applicant must have attained the age of 24 or have waited at least five years following the disposition of the adjudication or completion of detention.