Michigan Legislature Gives Fresh Start Opportunity

Michigan law has long had a process for setting aside a criminal conviction to give a deserving convict a fresh start. Expungement is a court process in which the legal record of criminal conviction is "sealed," or erased in the eyes of the law.

Expungement has always been a matter of grace, not a right, and only available for certain crimes after a significant crime-free waiting period and has always been limited to persons with little or no criminal history, and discretionary with the judge.

Now the law is grappling with the consequences of criminal records, and how to make up for the War on Drugs by allowing expungement of unlimited Marijuana use and possession convictions on a presumption that the prior conviction was based on activity that would not have been a crime if committed on or after December 6, 2018 (the effective date of MRTMA).

For marijuana expungements most applicants will not even need to appear in court unless the prosecutor objects, and convicts won’t have to prove anything, just present the court with an application for expungement on a new court form along with certified copies of each  MJ conviction to be expunged.

Drafters of the 2018 MRTMA voter-initiated law included an expungement provision in the original proposal but removed it out of political expediency so as not to risk losing votes by confusing voters. The whole idea of expungement is controversial, obscure, and secondary to the main goal of MRTMA to reduce the harm of the War on Drugs going forward. 

For civil libertarians, the War on Drugs was, and still is, a travesty that might have permanently broken the spirit of liberty in America. The legitimacy of government by, for, and of the people depends on “the rule of law not men.” Laws that don’t respect people breed people who don’t respect laws, and Marijuana prohibition laws present stark examples of the long-term consequence that ill-considered laws have had on Americans.

As was the case with alcohol prohibition laws a century ago, Marijuana prohibition laws were ginned-up in the first place; used by politicians to divide Americans along racial and ethnic lines. Then they were misused to allow the established order to keep blacks and Mexicans down, and stifle war protestors in the Vietnam era, but even worse was the evolution of a justice system that twisted privacy rights, empowered corruption, and literally made law enforcement mad with power.

America struggles to cast off the vestiges of old prejudices and corrupt practices, and the new expungement statute enacted by state lawmakers is trying to make it right with the people. This is a step in the right direction, albeit a day late and a dollar short.

Michigan’s new expungement law allows people to erase their marijuana convictions as if they never even happened (sort of). Expungement is a formal forgiveness for sins that never happened, and falls far short of a well-deserved public apology that marijuana convicts are owed by their government. State Police must maintain a non-public record, just as is done for other expunged convictions; Forgive, but don’t forget. You don’t get your time or your money back. The defendant is not entitled to the return of any fines, costs, or fees imposed as part of the applicant’s sentence or money forfeited as a result.

Importantly, the applicant may not seek resentencing in another criminal case for which the conviction being set aside was used in determining an appropriate sentence (i.e. sentence guidelines calculations) This can seem unfair, and it is, but the harm is already done. At least the law now allows a practical solution to a big problem for job applicants going forward,  who would no longer need to worry about disclosing the convictions on future job applications.

There is less restoration in this law than perhaps there should be. When one reflects on the fines, costs, probation fees, drug tests, substance abuse classes, time spent locked up, driving privileges and jobs lost,  and the humiliation that I have seen over and over again of being judged by a judicial system that supported the war on Drugs, it seems logical that one would at least receive restitution from the government for the actual costs one directly paid to the government for the privilege of being screwed.

The state is at least attempting to make reparations to victims of the drug war with so-called “social equity programs” meant to make entry into the legal  marijuana business easier for communities that have been disproportionally impacted by marijuana laws, but racial discrimination laws make it legally problematic to identify black and brown people specifically as that community, even though it is well accepted that minorities were targeted for drug arrests far out of proportion to their white counterparts.

Instead, the state has identified people who served as medical marijuana caregivers, live in certain communities, and those with Marijuana convictions to receive big discounts for their application and regulatory fees (up to 75% off).  

There is nothing either good or bad but thinking makes it so.                                                                                                           Shakespeare’s Hamlet Act 2 Scene 2

All Crimes can be broken down into two general categories: malum in se and malum prohibitum. A malum in se offense is "naturally evil as adjudged by the sense of a civilized community," whereas a malum prohibitum offense is wrong only because a statute makes it so. 

"Public welfare offenses" are malum prohibitum offenses; regulatory in nature and often resulting in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. The basic idea is that everyone knows that certain acts are so inherently wrong that no one would justify them, like rape and murder, so it is hard to feel sorry for those convicted of Malum in se crimes.

Malem Prohibitum crimes, on the other hand, generally have no victim, and you wouldn’t know the was any culpability attached to certain conduct if you did not know the government had declared it to be illegal (as opposed to being so inherently wrong that you can feel it in your gut).

The question of why old marijuana convictions should not be automatically expunged or pardoned on a mass basis in the first place is a fair one. The new law calls for many convictions to be automatically expunged starting in 2023, but that is tentative and conditioned on funding that may never come. It’s not as though marijuana convicts did anything wrong in the first place. There never was any moral culpability for marijuana users, and they are not second-class citizens. They are just people caught up in a justice system that went crazy.

There is a legal argument that holds a person accountable for knowingly breaking the law just because it is the law, even if the law was unjust by today’s new standards. People should follow the law, but Marijuana Prohibition Laws made liars and criminals out of people who were neither. 

Police gave arrested cannabis offenders a chance to help themselves by helping the police by snitching on other marijuana users. Marijuana “offenders” were never really offenders in the first place, and they have gone through enough already without having to beg for forgiveness when it is the justice system that was the offender in the war on drugs.

It is the government of another era that that allowed the war on drugs to squander the reputation and standing of government today, but it must be the government today that restores its reputation with the people by treating yesterdays “offenders” with the dignity and respect they deserve, and by erasing the erstwhile permanent marks put on peoples criminal records as a result of the war on drugs. 

The Local Plan to Help

Saginaw’s newly elected County Clerk Vanessa Guerra is committed to helping people through this new process. She has personally spearheaded effort at the state and local level to help provide people who need help with the procedures and costs associated with expungements.

The pro-bono committee of the Saginaw County Bar Association has been very involved in conversations regarding how to best provide expungement access to Saginaw County residents. Recently, she had a meeting with the Great Lakes Bay Region Michigan Works! agency about their efforts to assist folks. Michigan Works! has received funding from the State of Michigan to cover many of the costs associated with the set-aside process, including fees for fingerprinting, obtaining certified copies of conviction, and the required fee paid to the Michigan State Police.

As a member of the committee and clerk to the Circuit Court Records Office, Vanessa will be working closely with the agency to establish a schedule of set days where the clerk’s office would available to citizens in need of their certified conviction records. Guerra wants to ensure easy access to Michigan Works! as they seek to provide help, as well as a welcoming environment in the courthouse for those looking to clear their record.

As vaccinations increase and positive COVID cases decline, Vanessa will begin planning expungement clinics that would serve as a one-stop-shop for interested residents. In the meantime, if you encounter people in need of expungement assistance, please have them call our area Michigan Works! at 1-800-285-WORK (9675).

There are experienced local attorneys who regularly did expungements under the old restrictive expungement laws. One such expert is Robert (Al) Currie, who had this to say, “I anticipate the new law will open the door to a fresh start for people who may not have been eligible in the past, even people who may have tried to set aside a previous conviction and were refused. I think it’s worth a try for almost anyone, and it is hard to overstate the value of a clean record for school and job prospects.

Al can be reached at 799-5350 for expungement under the new laws.