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Groundbreaking Empirical Study of Expungement Released

by Bill Barton

An empirical study of a state law limiting public access to criminal records has been released by professors Sonja B. Starr and J.J. Prescott of Michigan Law School.

Starr and Prescott said, “Despite the considerable legislative ferment and the excitement that surrounds ‘clean slate’ initiatives in the civil rights and criminal justice reform worlds, what has been missing from the debate is hard evidence about the effects and the true potential of conviction expungement laws.”

The study utilized data-sharing with many other Michigan state agencies and, according to a report by the Collateral Consequences Resource Center (“CCRC”), their analysis reveals some key findings:

[(l.)] Uptake: Just 6.5% of those eligible for expungement successfully complete Michigan’s application process within five years of eligibility.

[(2.)] Recidivism: Expungement recipients “have extremely low subsequent crime.” The authors also note that “every advocate that we spoke to also emphasized the stringency of the eligibility· requirements, which in their view exclude a great many worthy candidates.” In Michigan, a person must have no more than one felony conviction and no more than two misdemeanor convictions to be eligible for the so-called “set-aside” under what is generally known as the “general expungement statute.”

As CCRC points out, “In contrast to most states, however, most felony convictions are eligible for set-aside. A Michigan set-aside limits public access to the record, but it remains available to law enforcement and some other government agencies.”

Starr and Prescott’s study found that: “All of these restrictions mean that the low uptake rate we estimated is even starker when viewed in context: it is a very small fraction of a very small fraction. For the past decade about two thousand set asides per year have been granted in Michigan. Meanwhile, each year the Michigan state courts add about 300,000 new criminal convictions. On balance, the population of people living with criminal records is continuing to grow quickly — the set-aside law is like a bucket removing water from an ever-rising ocean.”

CCRC staff concludes its report, “We note that Michigan’s eligibility requirements are actually more inclusive than those in most states. We expect that the findings of this remarkable new study will prove uniquely valuable to advocates and policy-makers considering changes to laws authorizing relief from collateral consequences in the days and years ahead.”

Calling Michigan’s requirements more inclusive than those in most states is an understatement: 31 states plus the feds have “No statutory authority to seal or expunge pardoned convictions.” And 16 states plus the feds have “No general authority to seal or expunge adult felony convictions.”

Other states vary considerably in the complexity of their rules and requirements, ranging from moderate to mind-bending. Arkansas, Idaho, Kansas, Missouri, New York, and Wyoming specifically exclude violent and sex crimes. Kentucky requires a $500.00 filing fee. In addition to having “No authority to expunge or seal adult convictions,” Delaware “may not destroy information identifying a person until a person reaches age eighty, or reaches age seventy-five with no criminal activity listed on the person’s record in the past forty years.”

The following states all have significant complexity in their expungement or sealing rules, with the most convoluted indicated with asterisks*: California, Colorado, District of Columbia, Illinois, Indiana, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey*, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina* Tennessee, Vermont, Washington, West Virginia, and Wisconsin.

Connecticut, on the other hand, routinely offers pardoned convictions, which result in “erasure” of record. 



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