Michigan has taken a significant step forward in their efforts toward criminal justice reform with the implementation of the new "Clean Slate" law. The law is designed to offer a fresh start to individuals with criminal records by automatically expunging certain convictions if specific conditions are met. While this is a welcome development for many, it poses a significant challenge to those conducting background checks in the state. Several Michigan counties have already initiated updates to their court systems to facilitate the automatic expungement processes.
Michigan's Clean Slate Law: A Closer Look
Though many states have enacted various degrees of “clean slate” or “fair chance” laws over the last several years, Michigan is one of few to create an automated system for expunging eligible criminal convictions without requiring individuals to file an application. The following are the key aspects of this law:
- Clean Slate law took effect in April 2023, with an automated system for expunging eligible convictions.
- Up to 2 felony convictions may be automatically expunged 10 years after sentencing or the person's release from custody, whichever comes later.
- Up to 4 misdemeanor convictions will be automatically expunged 7 years after sentencing.
However, not all convictions are eligible for automatic expungement under this law. The following convictions will not be eligible for automatic expungement:
- Convictions for "assaultive offenses";
- 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, or death of a person;
- Convictions that involve human trafficking; and
- Any conviction that cannot be expunged under MCL 780.621c.
Impact on Background Checks and Obtaining Public Court Records
The Clean Slate law's implementation in Michigan will significantly impact the way background checks are conducted, particularly regarding the courts’ systems used to provide background screeners with access to their public records. As eligible cases are expunged under the new law, changes to the information contained in these systems are inevitable, leading to potential discrepancies for employers conducting background checks.
1. The expungement of eligible cases may result in discrepancies between an employer’s expectations and information obtained from the court system. For example, cases that appeared on prior reports may not be returned to employers on future rescreens on the same applicant or employee, which could lead to confusion or questions regarding the accuracy of background checks if the employer is not aware ahead of time that such discrepancies are possible and reasonably likely to occur.
Though criminal record expungements are not new to the background screening world, laws that provide for truly automated expungements are considerably novel to the industry. Most state expungement laws require an individual with a criminal record to take proactive action to have their records cleared, such as filing applications for court approval. As Michigan’s new process doesn’t require any action to be taken to have the records removed, it is reasonable to expect that Michigan will expunge substantially more criminal records than states with manual processes have done so far.
2. As with any significant change, there will likely be an adjustment period while adapting to the new landscape created by the Clean Slate law. This may include recalibrating expectations and adjusting background check processes to account for the updated information contained in Michigan court systems.
What Can Employers Do?
As the Clean Slate law takes effect, it is essential for employers to understand its implications for background checks and criminal record information in Michigan. Here are some key points to keep in mind:
- Understand the scope of the Clean Slate law: Familiarize yourself with the details of the law, including which convictions are eligible for automatic expungement and which are not.
- Stay informed about updates: As the law is rolled out across Michigan, there may be updates or changes to its implementation. Keep an eye out for the latest information.
- Adjust your expectations: Be prepared for the possibility that certain criminal records may no longer appear in public court records due to the Clean Slate law and potential discrepancies between your expectations and the information available to the public.
- Reevaluate your hiring policies: Employers should review their hiring policies and practices to ensure they align with the new law. This may include revising background check procedures and adjusting expectations for job applicants with criminal records.
The implementation of Michigan's Clean Slate law marks a significant shift in the state's approach to criminal justice reform. By automatically expunging certain criminal records, this law offers a fresh start to many individuals who have served their time and met the specified conditions. However, the Clean Slate law also brings challenges and responsibilities for employers and those conducting background checks in Michigan. It is crucial to stay informed about the law's details, its implementation, and its impact on the state’s court systems to ensure fair and accurate background checks.
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