Michigan Criminal Justice Reform Continues

In Blog by Chris Kessel

In 2020, the Michigan Legislature passed a number of bills that would help to make it easier for citizens to have their records cleared or keep them from having a record at all.  In fact, there were over 36 different bills that were passed…which is pretty impressive considering that it is almost never good politics to be seen helping “criminals.”  This week, Governor Whitmer signed most of those bills, turning them into law.  Here are just some of the bills that have now become law:

  • HB 5846, eliminates license suspension for violations that have nothing to do with dangerous driving.
  • HB 5853, changes many traffic misdemeanors into civil infractions.
  • SB 1048, creates a presumption of a sentence other than jail for most misdemeanors and some felonies.
  • SB 1049, expands eligibility for HYTA participants to 25 years old (up from 24).  
  • SB 1050, reduces probation terms and puts a cap on jail sanctions for technical probation violations.
  • Senate Bills 681 and 682 (aka Clean Slate for Kids) which act to seal juvenile court records and institute a procedure where juvenile records are automatically expunged for those who do not commit future criminal offenses.  

The majority of the bills came out of the Michigan Joint Task Force on Jail and Pretrial Incarceration.  The task force, which was created by Gov. Whitmer in 2019, was created in order to propose ways to reduce Michigan’s jail population.  The task force then made recommendations to legislators in 2019, which is where the bills came from.  

The idea behind the drafting and passage of these is to create a more positive set of interactions when people come face to face with the justice system.  For example, one of the laws allows police officers to have discretion to simply write a ticket as opposed to arresting someone.  It may sound crazy, but before this, there were certain times where officers had to arrest someone, even if they didn’t want to. No one wants to be arrested (obviously). And believe it or not, I suspect most officers would rather write a ticket than go through the process of arresting someone.

However, even with all the good will created by the passage of these laws, there are still some (myself included) who wish more could’ve been done by Gov. Whitmer. 

Most notably, Senate Bill 1254 would allow for expungements for those who have one OWI (Operating While Intoxicated) on their record.  Unfortunately, the Governor decided not to sign this bill into law. Instead, she used what’s called a “pocket veto.” This is where she neither signs the bill nor veto’s it. It just…goes away. This may not seem like a huge deal, but I promise you, it is.

Here’s something that most people don’t know. Only convictions under the criminal code can be expunged (or as it’s technically referred, the conviction is “set aside.”). But Chris, isn’t an OWI a criminal offense? Well, yes, but it’s classified under the Motor Vehicle Code…which means it’s not subject to the laws that allow for courts to set aside convictions. Other crimes listed in the MVC include fleeing and eluding (of any degree), possessing counterfeit insurance, failure to stop at the scene of accident, or causing any accident that results in a death. Only offenses found in the criminal code are allowed to be set aside by a judge. This means that once you get an OWI, or any of those listed offenses, it’s there forever. FOREVER.

Let me be clear, drinking and driving is not something that should be taken lightly. It can be the cause of unspeakable tragedy. However, at the same time, there are crimes that are equally – if not more – serious that are eligible to be set aside. In fact, other than most sexual assault convictions, capital convictions (anything where the punishment can be up to life in prison; so murder, attempted murder, robbery, kidnapping, etc…), and a handful of others, pretty much everything is eligible to be set aside. This includes violent offenses such as assault with intent to do great bodily harm (less than murder), home invasion – first degree, and others.

So what’s the deal? At this moment the Governor hasn’t commented. But I can tell you that having an OWI stuck on your record is not pleasant. It can keep you from securing employment, renting a car, or, in some instances, can get you fired even after you’ve already been hired. Needless to say, it was unfortunate for thousands of Michiganders that this bill will not be signed into law. That’s not to say that the passage of these bills isn’t something to be celebrated. It’s just that there could have been so many more people who could have been helped.