Automatic Expungement Legislation Gains Momentum in U.S.

In the past, to get a court record sealed or expunged, individuals were required to complete the process on their own. Today, it is becoming more common for states to expunge certain records automatically. Some new or pending automatic expungement laws are specific to records related to marijuana, like Mississippi (S.B. 2267) and Nebraska (L.B. 634). Others are more open-ended such as the following list of pending legislation:

• Minnesota (F. 2023 and S.F. 2055)
• Nevada (B. 160)
• Florida (B. 593)
• New York ( 1029A and S.211A)
• Missouri (B. 753)
• Kansas (B. 2028)
• Maryland (B.0088)
• West Virginia (B. 2343)

Michigan has been a leader in a growing trend of automatic expungements across the United States. In fact, Michigan enacted its Clean Slate Act in April 2021 – just over two years ago.

Michigan Begins Automatic Expungements

The Michigan Clean Slate Act was enacted in 2021 but automatic expungements under the Act did not commence for two years.  Starting on April 11, 2023, Michigan began automatic expungements of misdemeanor and felony conviction records without an application, as was previously required.

Michigan court records that are eligible for automatic expungement include:

• Misdemeanors punishable for less than 93 days – Automatically expunged 7 years after sentence imposition.
• Misdemeanors punishable for 93 days or more – Automatically expunged 7 years after sentence imposition. A maximum of four convictions are automatically expunged.
• Felonies – Automatically expunged 10 years after sentence imposition or imprisonment release – whichever is later. A maximum of four convictions are automatically expunged.

Misdemeanors and felonies are ineligible for automatic expungement if:

• The waiting period has elapsed;
• The individual has pending criminal charges in the state police database;
• The individual has been convicted of any criminal offense recorded and maintained by the state police database during the waiting period; or
• The record involves a conviction for:
  • An assaultive crime
  • A serious misdemeanor
  • A crime of dishonesty
  • Any other offense punishable by 10 or more years imprisonment
  • A violation of the laws of this state listed under chapter XVII of the code of criminal procedure (1927 PA 175, MCL 777.1 to 777.69) which involve a minor, vulnerable adult, injury or serious impairment, or death
  • A violation related to human trafficking

In some cases, however, records that are automatically expunged may be reinstated. Those include records that:

• Were improperly or erroneously expunged; or
• Are accompanied by a restitution order, and a court finds that has been no good-faith effort to pay the restitution.

Michigan’s Automatic Expungement Process

Michigan is processing automatic expungements every day. The process looks at records in the state police database for new, eligible convictions. The Michigan State Police is responsible for reporting eligible records to state courts, where expungements are processed.

Individuals with records that are not eligible for automatic expungement can still apply for expungement under the traditional process.

While Michigan’s Clean Slate Act impacts records in the state police database, out-of-state employers could still be affected if they seek records from the state. Additionally, these laws are becoming more common across states. Employers looking for more information on how this could affect them may want to consult their attorney.