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Brief on Standard for Expungements (Jane Doe)

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S T A T E O F M I C H I G A N

IN THE CIRCUIT COURT FOR THE COUNTY OF KENT
180 Ottawa Ave., NW
Grand Rapids, Michigan 49503



The State of Michigan,

Plaintiff,

v.


Jane Doe,

Defendant.


Hon. James Robert Redford


Case No. **************


BRIEF IN RESPONSE TO OPPOSITION OF ATTORNEY GENERAL TO DEFENDANT’S APPLICATION TO SET ASIDE CONVICTION


Kent County Prosecutor’s Office
82 Ionia, NW
Grand Rapids, MI 49503
(616) 336-3577


Suzan M. Sanford (P40947)
Assistant Attorney General
Department of Attorney General
Criminal Division
P.O. Box 30218
Lansing, MI 48909
(6160 774-0672


Western Michigan Legal Services
By: Miriam J. Aukerman (P63165)
Attorneys for the Defendant
89 Ionia Avenue, N.W., Suite 400
Grand Rapids, Michigan 49503
(616) 774-0672, Ext. 114


BRIEF IN RESPONSE TO OPPOSITION OF ATTORNEY GENERAL TO DEFENDANT’S APPLICATION TO SET ASIDE CONVICTION


NOW COMES the Defendant, Jane Doe, and submits the following as her response to the brief of the Attorney General.


I. The Standard for Granting Expungements


The Attorney General submitted a conclusory and formulaic brief opposing Defendant’s Application for an expungement. The brief failed to give a single reason why an expungement is inappropriate under the circumstances of Ms. Doe’s case, but rather appears to reflect a general opposition to expungements. Counsel for the defendant notes that the Attorney General has not routinely opposed expungements in the past, and that this new position appears to reflect a change in the administration of the Attorney General’s office.


The Attorney General’s brief misstates the legal standard. First, the Attorney General argues that an expungement should not be granted absent extraordinary circumstances. Second, the Attorney General claims that the Court must consider the circumstances and behavior relating to the crime for which the Defendant was convicted. Both of these assertions are incorrect as a matter of law.


There is no statutory or caselaw support for the Attorney General’s position that expungements should only be granted in extraordinary circumstances. Rather, the Court of Appeals has encouraged trial court judges to use their discretion expansively, in order to foster the rehabilitative purposes of the statute. As the Court of Appeals has explained, “the purpose of the expungement act is to allow one-time offenders, i.e., those whose records are blemished by a single conviction for a single crime . . . committed on a single occasion to have their criminal records expunged.” People v. Van Heck, 252 Mich App 207, 217 (2002) (quotation marks omitted); see also People v. Grier, 239 Mich App 521, 523 (2000); People v. McCullough, 221 Mich App 253, 257 (1997). Moreover, because the expungement statute is remedial in nature, “it should be construed . . . liberally for the advancement of the remedy.” Van Heck, 252 Mich App at 217. In other words, because of the remedial nature of the statute, expungements should ordinarily be granted whenever an ex-offender meets the statutory requirements and can demonstrate rehabilitation.


MCL 780.621 sets out clear standards specifying which former offenders are eligible for expungements. A person may have only one offense, may not have been convicted of a particularly serious crime, such as a crime punishable by life imprisonment or a serious sex crime, and must have lived crime-free for at least five years since release from incarceration. If a former offender meets the statutory standards, then an expungement should be granted whenever the court “determines that the circumstances and behavior of the applicant from the date of the applicant’s conviction to the filing of the application warrant setting aside the conviction and that setting aside the conviction is consistent with the public welfare.” MCL 780.621(9).


The Attorney General is incorrect not only in claiming that applicants for expungement must demonstrate extraordinary circumstances, but also in arguing that the Court should look at the circumstances and behavior relating to the underlying offense conduct. First, the legislature has specifically set out which offenses are eligible for expungement. Thus, the legislature has already considered the issue of the gravity of the offense. It is inappropriate for the judiciary to second-guess these legislative judgments.


Second, the statute makes perfectly clear that the “circumstances and behavior” at issue here are not those of the underlying offense, but rather the “circumstances and behavior of the applicant from the date of the applicant’s conviction to the filing of the application.” MCL 780.621(9) (emphasis added). Accordingly, the Michigan Court of Appeals has repeatedly reversed lower courts that have focused on the nature of defendant’s conviction, rather than the defendant’s conduct subsequent to the conviction. For example, in People v. Rosen, 201 Mich App 621, 623 (1993), the Court of Appeals ruled that the trial court had erred by focusing on the quantity of cocaine involved in the defendant’s case, and remanded for a consideration of the defendant’s behavior “since her conviction.” See also People v. Boulding, 160 Mich App 156, 158 (1986) (reversing because trial court focused only on fact that defendant had been convicted of conduct that amounted to forcible rape, and had failed to consider the defendant’s behavior subsequent to the conviction); Van Heck, 252 Mich App at 209 (remanding for consideration of defendant’s circumstance since conviction). The relevant inquiry, therefore, is not the defendant’s conduct prior to the conviction, but rather the defendant’s conduct subsequent to the conviction.


Finally, even if the Attorney General were correct that the Court should consider the circumstances of the crime, the circumstances here in no way justify the denial of an expungement. Ms. Doe was charged with uttering and publishing, and pled guilty to larceny in a building (that is the bank). Both the charged offense and the offense of conviction are nonviolent crimes. Prior to her offense, Ms. Doe was being evicted. She wrote a number of checks on her account for rent, utilities, and other expenses, knowing that she did not have the funds to cover them. For this crime Ms. Doe ended up with a felony record and served over three years in various correctional facilities.


II. The Circumstances and Behavior of the Petitioner since Conviction


The first of the factors that this Court should consider is Ms. Doe’s conduct and behavior since her conviction in April 1993, ten years ago. Ms. Doe’s behavior and conduct have been exemplary.


Since being released from prison, Ms. Doe has obtained an Associate’s Degree in Business Administration from Grand Rapids Community College. While at Community College, she was recognized for her academic achievements by getting on the Dean’s List, and by earning Phi-Theta-Kappa status. Ms. Doe also successfully completed a medical assistant program at the Ross Career School. Ms. Doe is currently pursuing a Bachelor’s in Business Administration with a Concentration in Community Development at Central Michigan University. Upon completing her Bachelor’s degree, Ms. Doe hopes to earn a Master’s from Western Michigan University.


Ms. Doe is currently employed as an employment specialist at the Vocational Resource Center of Hope Network. In this position, Ms. Doe works with people who have physical or mental disabilities. Since her release from prison Ms. Doe has also held worked as a customer service representative for CenturyTel, has waited tables at a variety of restaurants, and has taken a number of temporary jobs through Office Staffing, including a short-term position at Catholic Social Services.


Ms. Doe is a mother of two boys, aged 11 and 13. Ms. Doe has volunteered in the schools as a classroom parent, and has been recognized by the Grand Rapids school system for her involvement in the education of her children.


In addition to working, studying, and caring for her children, Ms. Doe has found time to volunteer in the community. Ms. Doe has volunteered at the Metropolitan Hospital’s Emergency Department, where she cleaned, changed linens, and assisted medical staff. Ms. Doe has also volunteered at Fountainview Retirement Community, where she aided residents by visiting with them, reading to them, and feeding them, as well as by giving pedicures/manicures.


Attached please find a series of letters, awards, and certificates of achievement which are a testament to Ms. Doe’s good character.


III. The Public Welfare


The second factor which the Court must consider is the public welfare. Granting an expungement to Ms. Doe would serve the public welfare.


One of the primary reasons that Ms. Doe is requesting an expungement is that her criminal record has been a huge barrier in her attempts to obtain stable employment. Because of the social stigma attached to her felony record, Ms. Doe has had considerable difficulty finding work. When Ms. Doe first sought counsel to obtain an expungement, she was unemployed. Ms. Doe has since found work. However, she secured her current position only after counsel intervened to inform her prospective employer that Ms. Doe was in the process of seeking an expungement.


The public welfare is served by making it easier for ex-offenders like Ms. Doe to find employment. The unemployability of ex-offenders is a major societal problem, with huge consequences for both public safety and the public purse. According to one study, 65% of employers will not knowingly hire an ex-offender. See “A Stigma that Never Fades,” The Economist, Aug. 20, 2002, at 25, 26. Moreover, ex-offenders are barred from a variety of professions. See, e.g., MCL 333.20173. Yet research shows that employment has a tremendous impact on recidivism. Unsurprisingly, ex-offenders who have a legal means to pay their bills are less likely to return to crime. Studies have repeatedly shown that having a job with decent wages is associated with lower rates of reoffending. See Urban Institute, From Prison to Home: The Dimensions and Consequences of Prisoner Reentry (2001) at 31. According to one estimate, a 10 percent decrease in an individual’s wages is associated with a 10-20 percent increase in his criminal activity and likelihood or incarceration. See id.


The public has a strong interest in promoting the employment of ex-offenders, since such reintegration into the community reduces recidivism. Reductions in recidivism, in turn, reduce the high financial cost of incarcerating offenders, as well as the high human cost imposed on future crime victims. Moreover, ex-offenders who are employed are less likely to become public charges, resulting in further cost savings to the public fisc. Because of the difficulty of obtaining employment, a parent like Ms. Doe is much more likely to need to rely on the welfare system to support her children is she is unable to get an expungement, than if she can clear her name and find stable employment.


The legislature, recognizing that the public welfare is served by the reintegration of ex-offenders, has designed expungement as a specific statutory remedy to the social stigma and legal disabilities inherent in a criminal record. Where an ex-offender has been convicted of only one offense and where that ex-offender has shown evidence of rehabilitation, the public welfare will almost always be best served by granting an expungement, as a way to promote that individual’s reintegration into society. An expungement thus benefits not only the ex-offender – in this case, Ms. Doe -- but also society at large.


IV. Conclusion


Whereas Jane Doe’s conduct and behavior since conviction has been exemplary, and whereas it serves the public welfare to promote the reintegration of ex-offenders into society, the defendant respectfully requests that an expungement be granted.

Respectfully Submitted,


Dated:

WESTERN MICHIGAN LEGAL SERVICES
By: Miriam J. Aukerman (P63165)
Attorneys for Defendant

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