There are many effects that a criminal conviction can have on you long after you have served your time and paid your fines. A person convicted of a felony is permanently disqualified from jury service as long as it remains on his or her record. MCL 168.758b. A person convicted of a felony may not possess firearms until three years after completion of the sentence, including probation or parole, except that persons convicted of certain “specified felonies” will still lose their rights until BOTH five years after the completion of the sentence AND after their firearm privileges have been restored by the circuit court pursuant to MCL 28.424. The conviction is a blemish that shows up on background checks for employment and housing opportunities for the rest of your life. This stigma seems to last forever.
One method to remove old criminal offenses is to file for an expungement of your criminal record. Effective April 11, 2021, the new “Clean Slate” legislation allows a person to file an application to set aside eligible convictions with the convicting court that can include up to three qualifying felonies and an unlimited number of misdemeanors. MCL 780.621(1). In addition, multiple offenses that occurred in a single transaction within 24 hours count as a single offense, unless one of those offenses was an assaultive crime, a crime involving the use or possession of a dangerous weapon, a crime with a maximum penalty of 10 years or more in prison, or a conviction for a crime that if it had been obtained in this state would be for an assaultive crime. MCL 780.621b. “If the court determines that the circumstances and behavior of an applicant… from the date of the applicant’s conviction or convictions to the filing of the application warrant setting aside the conviction or convictions, and that setting aside the conviction or convictions is consistent with the public welfare, the court may enter an order setting aside the conviction or convictions.” MCL 780.621(14). The “Clean Slate” legislation even allows “automatic expungement” for criminal offenses without application for qualifying misdemeanors or felonies within seven to ten years of the completion of sentencing if certain conditions are met.
However, expungement is not available for ANY of the following offenses:
- No expungement for felonies where the maximum penalty is life imprisonment or an attempt to commit a felony where the maximum penalty is life imprisonment. MCL 780.621c(1)(a).
- No expungement for child abuse in the second degree (MCL 750.136b(3)), possession of child sexually abusive material (MCL 750.145c), use of computer to commit sex crimes (MCL 750.145d), criminal sexual conduct in the second degree (MCL 750.520c), criminal sexual conduct in the third degree (MCL 750.520d), or assault with intent to commit sexual conduct (MCL 750.520g). MCL 780.621c(1)(b).
- No expungement for criminal sexual conduct in the fourth degree (MCL 750.502e) if the offense occurred on or after January 12, 2015. MCL 780.621c(1)(c).
- No expungement for a conviction for operating while intoxicated by any person, a traffic offense committed by an individual with an endorsement on his or her operator’s or chauffeur’s license to operate a commercial motor vehicle was actually operating the commercial motor vehicle, and for any traffic violation that causes injury or death. MCL 780.621c(1)(d).
- No expungement for a felony conviction of domestic violence, if the person has a prior misdemeanor conviction for domestic violence. MCL 780.621c(1)(e).
- No expungement for a conviction related to bondage or forced labor (MCL 750.462a through MCL 750.462h) or a conviction related to a terrorist act (MCL 750.543a through MCL 750.543z). MCL 780.621c(1)(f).
If you are unable to set aside your conviction through the expungement process, an extraordinary remedy may be to request a pardon from the governor. Much like the President of the United States can grant pardons for federal offenses, the Governor of Michigan can grant pardons for state level offenses. According to the Michigan Constitution of 1963, “[t]he governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law. He shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefor.” Art. V, § 14.
However, you cannot just pick up the phone and call the governor’s office to ask for a pardon. “All applications for pardons, reprieves and commutations shall be filed with the parole board upon forms provided therefor by the parole board, and shall contain such information, records and documents as the parole board may by rule require.” MCL 791.243. All requests for pardons in Michigan require review and recommendation by the 10-member Michigan Parole Board, consisting of non-Civil Service employees who are appointed by the Director of the Michigan Department of Corrections.
An application for a pardon as provided by the Parole Board requires information about the applicant’s crime, employment history, contributions to the community, and his or her need for pardon. Once filed, the following procedures are observed:
- One member of Board must interview any person convicted of murder in the first degree or serving a life sentence without parole at the conclusion of ten years and thereafter as determined appropriate by the parole board. MCL 791.244(1).
- Unless upon the initiation of the Board, the Board must initiate a review within 60 days of receiving an application for clemency to determine whether an application has merit. MCL 791.244(2)(a).
- “Within 10 days after initiation, or after determining that an application has merit, forward to the sentencing judge and to the prosecuting attorney of the county having original jurisdiction of the case, or their successors in office, a written notice of the filing of the application or initiation, together with copies of the application or initiation, any supporting affidavits, and a brief summary of the case. Not more than 30 days after receipt of notice of the filing of any application or initiation, the sentencing judge and the prosecuting attorney, or their successors in office, may file information at their disposal, together with any objections, in writing. If the sentencing judge and the prosecuting attorney, or their successors in office, do not respond after not more than 30 days, the parole board shall proceed on the application or initiation.” MCL 791.244(2)(c).
- Within 270 days after initiation or receipt of an application that the parole board has determined to have merit, the parole board must make a full investigation and determination on whether or not to proceed to a public hearing. MCL 791.244(2)(e).
- The parole board must “conduct a public hearing not later than 90 days after making a decision to proceed with consideration of a recommendation for the granting of a reprieve, commutation, or pardon. The public hearing must be held before a formal recommendation is transmitted to the governor. One member of the parole board who will be involved in the formal recommendation may conduct the hearing, and the public must be represented by the attorney general or a member of the attorney general’s staff.” MCL 791.244(2)(f).
- The attorney general, the sentencing trial judge, the prosecuting attorney and each victim must be provided written notice at least 30 days before the public hearing. MCL 791.244(2)(g).
- At the hearing, “a person having information in connection with the pardon, commutation, or reprieve must be sworn as a witness. A person who is a victim must be given an opportunity to address and be questioned by the parole board at the hearing or to submit written testimony for the hearing. In hearing testimony, the parole board shall give liberal construction to any technical rules of evidence.” MCL 791.244(2)(h). All decision of the parole board are by majority vote. MCL 791.246. Afterwards, the parole board must transmit its formal recommendation to the governor. MCL 791.244(2)(i).
The parole board’s recommendations (except for privileged and confidential medical information) are matters of public record. MCL 791.244(3).
If the parole board votes to recommend a pardon, then it will be up to the governor to decide to grant or deny the request. If the parole board denies the petition, then it will never see the governor’s desk. It should be noted that actual pardons and commutations granted by the governor are rare. Governor Rick Snyder only granted 72 pardons in his two terms in office. Before his time in office, only 34 pardon applications were approved by governors between 1969 and 2011. The governor is not immune to politics, and his or her final decision will be motivated by the heinousness of the crime, the opposition of the victims, and the effect on his or her supporters. Remember, the governor can pardon any Michigan offense but cannot take action on convictions under federal law or the laws of another state.
The effect of the pardon is that the conviction is erased from the applicant’s criminal record. The Michigan Supreme Court has held that the effect of a pardon by the Governor is such that it “releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” People v Van Heck, 252 Mich App. 207, 216; 651 NW2d 174, 179 (2002). As a result, a pardoned offense doesn’t count against the applicant for the purpose of counting convictions under the expungement statute. Id at 178-179.
If a pardon is your last chance for a fresh start, it is worth your time to meet with a skilled criminal defense lawyer to help you craft a persuasive petition to convince the parole board and the governor to take a closer look.
If you have further questions about pardons or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.