Feds should follow states’ lead on expungement reform

RecoveryPark is a 501(c)3 enterprise that seeks to transform an abandoned area of Detroit — and abandoned Detroiters — through urban agriculture. Its first phase supplies fresh, locally grown specialty produce grown in high tunnel greenhouses to about 130 restaurants in the Detroit area. 

RP’s employees are mostly returning citizens (ex-offenders) and others with barriers to employment. Beyond giving them basic job training, RP provides a three-year associate support platform to ensure they have access to comprehensive health care, adequate housing, transportation, rehabilitation support, family reunification, educational opportunities and other services. Of the approximately two dozen returning citizens who have worked for RP, none has committed a new crime.

RP is raising $12.5 million in capital that would allow it to add its first commercial-scale hydroponic greenhouse. This would provide enough revenue to start the next phase of its plan to redevelop 105 acres of the Poletown neighborhood and create 170 jobs over the next five years.

But one recent development has threatened to pull down the entire plan. The federal Small Business Administration has declined to proceed on a $3 million, 10-year loan request for the project. Its rationale, according to a frontline staffer: the SBA “doesn’t lend to felons.”

You see, in the 1980s, RecoveryPark’s founder and CEO Gary Wozniak developed a drug addiction. As a financial adviser, he misappropriated some clients’ funds and served 3-1/2 years in federal prison for wire fraud. 

Since his release in 1991, he has been running several successful businesses, volunteering with a drug rehabilitation nonprofit, and conceiving and implementing the vision for RP. But even with a spotless record for three decades, that mistake from the 1980s continues to shadow him — and the people he’s trying to help.

Wozniak’s story is not an isolated one. An estimated 19 million Americans have felony criminal records; add in misdemeanors and the estimates of people with criminal records range from one-fifth to one-third of U.S. adults. And with 87 percent of employers and 80 percent of landlords running criminal background checks on applicants, the existence of any criminal history can have significantly negative effects on that person’s employment and housing prospects.

An employer or landlord may have a legitimate interest in knowing about serious or recent crimes. But academic research shows that once people have desisted from criminal behavior for at least three years, their odds of committing a new crime drop substantially. Continuing to stigmatize citizens who are law-abiding for over 10 years after a marijuana possession, 20 years past a DUI or 30 years past a financial crime does societal harm, not benefit.

State governments across the country have led the way in minimizing the misuses of criminal history. They have done this through limiting state licensing agencies’ discretion to deny applicants based on criminal convictions that are not relevant to the license an applicant seeks. State are also turning to fair-chance hiring for public-sector jobs, in which they delay asking about an applicant’s criminal history until later in the hiring process.

The next wave of needed reform is to set aside, or expunge, years-past convictions of people who have demonstrated their desistance from criminal behavior. 

Most states have an application process for ex-offenders to have old criminal convictions expunged. Last month, the Michigan House Judiciary Committee began hearings on a six-bill package to join Pennsylvania, Utah and California in automating that process.

Under Michigan law, someone with a felony offense and no more than two misdemeanor offenses can ask the convicting court to set aside the felony; someone with two misdemeanors and no felonies can apply to have those misdemeanors set aside. The offender must wait 10 years after all conditions of the punishment are completed to apply. The prosecutor and victim (if applicable) have the opportunity to object, and the judge retains discretion on whether to grant the set-aside.

With hurdles such as this, it’s no surprise that a recent study published in Harvard Law Review, “Expungement of Criminal Records: An Empirical Study,” found only 6.5 percent of Michiganders eligible for set-asides receive them within five years of becoming eligible. Michigan courts process 300,000 new convictions each year and only about 2,000 set-asides.

Why should set-asides be easier to obtain? The study found that set-aside recipients were 30 percent less likely than the general Michigan adult population to be arrested; a mere 0.6 percent of recipients were convicted of a violent crime within five years. The researchers also found that set-asides improved prospects for employment and housing, which are major risk factors for criminal behavior.

But as is often the case, the federal government trails state policy by a wide margin. Current federal law allows only first-time drug possession offenders who were under age 21 at the time to have their records expunged. Absent a pardon, any federal crime will follow a person forever.

Public safety is enhanced when people who have committed crimes don’t repeat or escalate that conduct. Reasonable and accessible expungement processes offer them the possibility that their old crimes won’t haunt them forever, and give them a clear incentive to model upstanding behavior. 

David Guenthner is senior strategist for state affairs at the Mackinac Center for Public Policy, a research and educational institute based in Midland, Mich.