On October 12, Michigan Governor Gretchen Whitmer (D) signed into law a series of criminal justice reform bills. Among these is a bill to expunge past low-level cannabis convictions. The process is not automatic, and people with convictions have to petition for their own relief.
State Senator Jeff Irwin (D-Ann Arbor), who sponsored the criminal justice legislation, stated that the marijuana reforms alone could affect up to 235,000 Michigan residents with low-level convictions. Michigan legalized recreational marijuana in November 2018, and possession of up to 2.5 ounces is now legal. So any old convictions for possession of up to that amount would be eligible.
Here’s how it works: Past misdemeanor marijuana convictions that would no longer be a crime can now be “set aside” by courts. This means that information about the conviction will no longer be publicly available, including to most employers.
For this to happen, the impacted person must first fill out an application with a record of their conviction, and provide it to the courthouse that convicted them. The county prosecutor’s office then has 60 days to object or contest it. Objections might include cases where the office believes the conviction would still be valid under current state law.
The court must then hold a hearing between applicant and prosecutor. The burden of proof is on the prosecutor, with the applicant not required to provide evidence in their own support. If the court ultimately agrees to set aside the conviction—or if it refuses—it must notify the applicant, prosecutor and state police in writing within 14 days.
While the reform is a step forward, it has limitations. It puts most of the burden of a process that may prove difficult and time-consuming on the impacted person. And the process won’t happen at all unless people who are eligible are aware of it—other jurisdictions’ experiences have shown that this shouldn’t be assumed.
What’s more, the “setting aside” of convictions in Michigan state law does not completely erase the conviction. For example, it won’t show up on most job-application background checks but there are exceptions, including for government employers. The state police will also keep a nonpublic record of the conviction.
Michigan’s expungement provisions are therefore less comprehensive than in other legal-marijuana states like California, where prosecutors in every county are required to review eligible cases and petition for expungement on people’s behalf. (Even there, people have waited years for their records to be sealed as the law requires.)
As elsewhere, expungement in Michigan is a racial justice issue. ACLU research realeased this year shows that up to 2018 (the most recent year for which data are available), Black Michigan residents were over three-and-a-half times more likely than white residents to be arrested for marijuana.
The same day Gov. Whitmer signed the marijuana reform, she also approved a more general measure to automatically set aside up to four misdemeanor convictions (after seven years), and up to two nonviolent felonies (after 10 years), with certain offenses excluded.
No state has done marijuana expungement completely right. Regardless, progress like that in Michigan should encourage lawmakers in other states and at the federal level to take steps that begin to heal the damage of the War on Drugs.