By Ben Solis
Staff Writer
Posted: April 23, 2023 9:28 PM

Criminal reform activists and government agencies grappling with the state's new "clean slate" automatic expungement laws are hopeful that a technological approach will help courts and prosecutors ferret eligibility for the setting aside of convictions.

But while the tool being used to determine eligibility has been said to be extensively tested, the specter of a computer program determining eligibility standards and failing to do so correctly looms large in Lansing given the scandal surrounding the state's unemployment auto-adjudication system falsely accusing recipients of fraud – a scandal that resulted in the seizure of property without due process and a $20 million class action lawsuit settlement.

Still, the Department of State Police told Gongwer News Service that the program has been tested and looks at a number of data sequences before deciding whether a person is eligible or ineligible for expungement.

Law reform advocates also appear to be less worried about the program failing and incorrectly determining eligibility, and are more concerned that there is not a public facing data system that shows a person's full criminal history including lower end misdemeanors that carry 92 days or less in jail.

Active conversations with administrators are ongoing on that front to create an online portal encompassing all of that data held by State Police and the courts, but it is far off from being a reality soon.

The laws known as "clean slate" passed by the Legislature in the 2019-20 term, enabling the expungement of certain criminal offenses from people's records. PA 361 of 2020 and PA 193 of 2020 require automatic expungement of some offenses starting two years after the bill's effective date without the person having to apply for expungement.

Only nonpublic records in some cases would be kept on the offenses.

Several offenses are not eligible: arson, first-degree criminal sexual conduct, first-degree murder, any crime punishable by life in prison, any crime in which the juvenile was tried as an adult, felonious assault, child abuse, manslaughter, stalking, sexual intercourse under guise of medical treatment, willful killing of an unborn child by injury to the mother, death due to explosives and others.

Residents can have up to four misdemeanors punishable by 93 days or more in jail expunged once seven years have elapsed since the sentencing date. There is no limit on misdemeanor expunctions when the sentence is less than 93 days other than the seven-year waiting period.

For felonies, up to two convictions can be automatically expunged 10 years either after the sentencing date or the completion of a prison term in a Department of Corrections facility, whichever is later.

A program created by, maintained and launched by the Department of State Police went online last week and does just that. On the first day it launched, it has resulted in a reported 842,593 people seeing a total of nearly 1.2 million convictions set aside (See Gongwer Michigan Report, April 11, 2023). Those figures, however, only represented convictions on the criminal history record maintained by the State Police. Courts will set aside misdemeanors punishable by less than 93 days in jail, and the State Police will not have that data.

Updated numbers provided to Gongwer from State Police show that the system from April 11 to Thursday has set aside a total of 1.09 million 93-day or more misdemeanors and 105,140 felonies, a total of 1.95 million set asides. Those figures also only represented eligible convictions in the criminal history record managed by State Police. The updated figures also show that the high for 93-day or more misdemeanor set asides was on the launch date. It trailed off to about 300 daily between April 12 and April 15, dropping again to 77 the next day and to a low of just seven misdemeanor set asides on April 17.

There were 10,224 misdemeanor set asides on Tuesday, and then 841 on Wednesday.

The figures also show that the high for felony set asides managed by State Police was on the algorithm's launch, with zero felonies set aside between April 12-18, and 62 on Wednesday.

John Cooper, executive director of Safe and Just Michigan, called the implementation of the algorithm and the state court program a historic step for the state when they became active.

In an interview with Gongwer, Mr. Cooper said his group was briefed on the State Police algorithm and their initial concerns about the program had been addressed. That said, Safe and Just has not been provided an opportunity to review the coding, as it was told the coding was not something State Police could release.

Mr. Cooper said what was more of a concern was the fact that there does not exist a tool to capture a person's entire record and make it available to them at no or low cost.

"The resources that State Police has made available are a search of their ICHAT system for $10, but the ICHAT doesn't actually include the lowest level misdemeanors that are eligible for sealing (which) are being sealed separately by the courts," he said.

Mr. Cooper added that his group has been talking to administrators about creating such a portal, but it wasn't near close to being a reality. That said, Mr. Cooper thought those conversations have been positive thus far.

"People recognize the need for it and we have a decent template for how this could work from the ways in which Pennsylvania and Utah, the other two states that have done automatic expungement, have handled the situation," he said. "Pennsylvania has created a pretty simple system where they scrape court data and just run the court data through an eligibility tool for clients. Utah has a more complex system that can do more, but it was more expensive to create and maintain. It requires people to give up personal information to use it, so there's some trade-offs that come within the sort of functionality and design of the system."

Mr. Cooper further stated his belief that such a tool, if implemented here in Michigan, should first and foremost be a public resource, which was not the case in Pennsylvania nor Utah, which are both run by legal services or other nonprofit organizations.

"I personally think these are state records we're talking about," he said. "The state should make this resource available to people and manage it."

The state's program runs off a conditional algorithm using the parameters defined in the statute to populate offenses that were ineligible for automatic set aside, operating on a set of "IF/THEN" computation rules, the department said in an email.

At the outset, the algorithm looks at the charging code for the offense defined by the Prosecuting Attorneys Coordinating Council. A PACC code is required to enter an offense into the criminal history record.

The department outlined that if an offense is ineligible for set aside, the program stops for that offense, and then checks the next offense to see if it is eligible. Offenses that are ineligible for automatic set side are found in the Setting Aside Convictions Act of 1965, which was amended in 2020.

If the offense is eligible, then the program looks to other requirements laid out in statute to determine if the offense remains eligible for set aside – looking at aspects like if the appropriate time period has passed, there are no intervening offenses, the statutory maximum of automatic set asides has not been reached, to name a few.

If the program does not find anything making the offense ineligible for automatic set aside, then it sets the offense aside for misdemeanors.

For felonies, if the program does not find anything making the offense ineligible for automatic set aside, State Police then communicates a potentially eligible felony conviction to the Department of Corrections, which in turn provides State Police with the date of "completion of any term of imprisonment" within the MDOC, said Shanon Banner, manager of the State Police Public Affairs Section. Communication with MDOC in this process is required under Setting Aside Convictions Act.

State Police further outlined the process for felonies, noting that the rule then uses the date provided to determine when 10 years has passed, making the offense eligible for automatic set aside.

Ms. Banner said the algorithm runs on the Criminal History Record daily to set aside offenses that are eligible on that date.

The department was asked if it had any specific safeguards built in aside from the basic parameters coding in the algorithm to distinguish eligibility, bearing in mind that the state had just dealt with the fallout from the Unemployment Insurance Agency scandal.

Ms. Banner responded only by saying that the rules engine was extensively tested based on the parameters provided in statute.

The department was also asked if State Police had heard any complaints or encountered any early problems with the system, or if there were any situations where someone who had their past convictions set aside and reoffended soon afterward.

Ms. Banner said that it is likely too early to tell on that, but it was likely a question for prosecutors and the courts rather than law enforcement as they would have the most insight.

One of the reasons courts are responsible for the 92 days or less convictions has to do with fingerprinting, according to a summary of clean slate laws provided to Gongwer from the Michigan Supreme Court.

The law only requires fingerprints to be captured on arrests for offenses that are punishable by 93 days or more in jail, and once fingerprints are taken, a criminal record is created in the State Police database commonly known as LEIN and the publicly accessible ICHAT. Fingerprints are not required for offenses punishable by 92 days or less, so the criminal record is not created in the State Police database and a record of the conviction only resides with the court.

That means the courts are responsible for setting aside those convictions. Because the set aside is automatic, a defendant doesn't need to take any action to initiate the set aside.

While State Police has its algorithm, SCAO has developed programming for the courts using the Judicial Information Services case management system to automatically set those 92 days or less convictions aside. It also marks those offenses as nonpublic in the system.

The summary provided by the courts notes that SCAO does not yet know how many total convictions will be set aside, as the volume will take several weeks to fully process and update all of the case management systems.

One potential speedbump there is the fact that several of the state's largest courts are on systems other than Judicial Information Services, and those courts are responsible for developing similar programming with their case management system vendors.

A memorandum dated April 3 sent to Judicial Information Services courts from State Court Administrator Tom Boyd also notes that due to the sheer volume of initial set asides, Judicial Information Services can only update the system in batches.

The courts are also required to notify arresting law enforcement agencies about the number of 92 day or less set asides that occurred in the previous month by the 10th day of each month.

While State Police is responsible for those 93 days or more conviction set asides, SCAO is collaborating with State Police and the Department of Technology, Management and Budget to ensure that court records match what is being set aside in the State Police database.

The courts have said that they would do this by having State Police provide the courts with a list of all convictions State Police set aside each day. The information in that report will then be pulled by Judicial Information Services and automatically updated in the court's system to mark the conviction as set aside.

On March 29, the Michigan Supreme Court entered two orders regarding the implementation of the clean slate laws. One was an amendment that requires courts to continue to restrict access to case records involving set aside convictions while providing access to charges not set aside.

The amendment was said to provide guidance and uniformity when less than an entire case is set aside, with language similar to how the act restricts access to records maintained by State Police.

A new rule also provides procedural guidance on how to reinstate an automatically set aside conviction. It requires courts to provide notice and an opportunity to be heard before reinstating a conviction for failure to make a good faith effort to pay restitution under the act.

It further requires a reinstatement to be ordered on a SCAO-approved form that advises the individual that he or she may request a hearing if the reinstatement is ordered. SCAO made these forms available before the State Police algorithm implementation date of April 11.

The second order published for comment proposed an amendment requiring all case records maintained by district courts to become nonpublic immediate after bind-over to the circuit court. The amendment would also expand the types of documents that must be transmitted to the circuit court.

Asked if SCAO's work to get every court on the same page with the same system and sharable data among them would help get closer to that goal, or if he was at the very least encouraged by the work, Mr. Cooper said there was a lot of complexity to that effort, so it was hard to say.

However, Mr. Cooper said it was important for a group like his to have the ability to understand what's happening statewide with the criminal justice system, and that collaboration leading to a public facing portal could be of real value to people whose records are being sealed.

"There's just so much data in there from the convictions themselves to fines and fees and other criminal justice debt, to probation data that we haven't really been able to study in a systemic statewide way, so I'm certainly supportive of changes that will make that possible," he said.