Washtenaw County Prosecuting Attorney Eli Savit Talks Reform, Expungement, and More

Washtenaw County Prosecuting Attorney Eli Savit was elected in 2020 on a campaign platform of promising reforms to the criminal justice system. One of his many programs implemented since taking office is an expungement program, which assists eligible individuals with the expungement process free of charge under recent changes passed in Michigan. Savit discussed the importance of expungement and reform and his time in office in an interview with the Harvard Undergraduate Law Review.

The interview below was conducted in Spring 2023. It has been edited for brevity and clarity.

Harvard Undergraduate Law Review (HULR): On a broader level, when you decided to run for office, what made you realize/believe that major reforms to the criminal justice system were needed?

Eli Savit (ES): Sure. So it's a pretty broad answer. I had not been a prosecutor before I ran for office. I had largely dedicated my career to public interests, civil rights work. Throughout my career, I've seen the sort of cascading effects of the criminal legal system on people's lives. I’ve had the opportunity to represent clients pro bono, that I felt were facing unjust sentences as a result of discretionary decisions made by prosecutors. I represented folks in asylum and immigration proceedings, being held back from staying in this country, and in one case the only country that my client had ever known, because of very old criminal convictions. I was a teacher before I was a lawyer and I had kids whose families were caught up in the criminal legal system. And then, working in the city of Detroit, which was my job immediately preceding being the prosecutor, I saw so many people who were being held back from jobs, educational opportunities, and housing opportunities, because of old criminal records. So, I really wanted to run for prosecutor to build a fairer and more equitable justice system and address some of these issues that I've seen throughout my career.

HULR: Can you briefly explain how criminal justice reforms are carried out on the county level through the Prosecutor’s Office rather than legislation? 

ES: Prosecutors have a tremendous amount of discretion over how a case should be handled — over whether a case should be charged, with what somebody should be charged, and how a case is going to move forward. The prosecutor's office in many ways is a gateway for many people to the criminal legal system, and there's broad prosecutorial discretion about how you're going to handle a particular case. I don't think that prosecutorial discretion should be seen as a substitute for legislation rather, because you only get more permanent change through legislation, but just to give one high profile example, once Roe v. Wade was overturned, a number of prosecutors said, “Even though our state has criminal abortion laws, we are simply going to exercise our discretion not to prosecute that crime.” Now, again, it does not mean that there's not a need for legislation to wipe those old laws off the books, but there's a tremendous amount that can be done in the prosecutor's office just through the exercise of discretion. And it’s not just about charging. You can give people an offer and say, “look, what I want you to do is get help, get better, get treatment, get back on the right path,” rather than trying to saddle somebody with a jail or prison or probationary sentence in appropriate circumstances. So, you know, really, there's a lot that can be done at the local level, because prosecutors are ultimately the ones who are charged with enforcing laws and they have a tremendous amount of discretion as to how cases go.

HULR: What is expungement and how has it changed under the Clean Slate laws, recently passed in Michigan?

ES: Expungement means an old criminal record is going to be sealed: it is non-public, which means that you don't have to disclose it if you're applying for a job, housing, or student loan aid. A lot of these applications generally have questions about your criminal record, and the existence of an old criminal record can hold a lot of people back from thriving, and ultimately from getting back on the right track. So what expungement does, is after a sort of mandatory waiting period, it allows people to clear their old criminal records at least insofar as they are public. Law enforcement can still see the full record, but you don't have to disclose it. It's not going to show up on a background check; for all public purposes,you have a clear record. Now, Michigan has fortunately had expungement laws on the books, since the 1960s, actually, but they were very limited in scope until the recent Clean Slate legislation which expanded, by some estimates the number of folks who are eligible to expunge criminal records by over one million people. That's one out of every 10 people living in the state of Michigan that are now eligible for expungement and it's tremendously important. It's important to get people back on the right track. It’s important to allow people to provide for their families. There's also a real public safety aspect to this too, because ironically, the things that an old criminal record prevents you from accessing, jobs, housing, educational opportunities, are the very things that research shows are most important to give people access to to prevent recidivism. If folks are stable, they have stable jobs, they have housing, then they're much less likely to commit new crimes. So expanding access to removing those barriers for people that, by the way, have done everything right (you’ve got to stay out of trouble for a period of time before you're eligible for expungement) sets them on a path forward and ultimately keeps our community safer in the long run as well.

HULR: What has been the impact of the expungement program thus far? How have impacted individuals reacted to the expungement process?

ES:  I will say expungement is one of my favorite things to do as a prosecutor. I try to go out to every single one of our expungement events and what you'll find is that people are seeking expungement of old criminal records for their own unique stories. Being able to run that background check, tell people yes you are  eligible, get them connected to services for free, which is what our expungement program does, is just a moment of joy for many people, and a weight lifted off their shoulders. People of course, as you might imagine, reacted very well to being able to get their old criminal record expunged and I'd say most people that are coming through are seeking to have their records expunged because they're trying to get a new job, or trying to get a promotion, or a better paying job, and that job opportunity requires a criminal background check. So we're able to set people on the path to more earning potential which is really meaningful. But, there's other people that come through that want their criminal records cleared for a variety of really personal reasons. I remember one person that we helped with expungement. He had not been in trouble for about 20 years, but he still had this old criminal record and the reason that he wanted to get it was because he wanted to be more involved in his kids PTA at their school. He didn't want other parents to be running a background check and say, “Oh, this person has a past and so they shouldn't be involved in our school community.” He was ashamed of it and he just didn't want that to be something that affected his daughter. We have a person that is dying — this is one that's going on right now — and his dying wish is to get his criminal records expunged. He doesn't want to die with a criminal record on him. It's not about building a better life. For him, it's just about being able to go out without being labeled by the state of Michigan as a criminal. The number of human stories that make up the universe of people that are seeking expungement matches the number of people that are seeking them. Everybody wants them for a slightly different reason, because they're in a slightly different place in their life. But the folks that are eligible for expungement, necessarily, are people that have done everything you've asked them to. They've done everything right, they made a mistake in the past and what they want is for this not to be holding them back, not being labeled as a criminal for the rest of their lives, and it's tremendously impactful for so many people.

HULR: Has there been any major pushback against expanding expungement access from any groups or people in the County?

ES: Not really, honestly. Expungement reform, broadening of eligibility for expungement, was passed by a bipartisan legislature. The Republicans were actually in control of the legislature when the expungement expansion was passed and it passed through a Republican controlled House and Senate with significant bipartisan support. So this is something that really I think speaks to folks across the political spectrum. And when you talk to most folks and especially when you really talk to them about what expungement means — that it means that somebody that again, has done everything right to stay out of trouble for years, can now move forward with a clean slate — most people see the value in that and are fully supportive of that. We've had some cases where one of the things we can do is even if somebody's eligible for expungement in the interest of justice, we can ask the court to alter the record of conviction so that it can be set aside, and if we do that, in appropriate cases, we'll always contact the victims first. The victims that we've contacted have said “Great, that's ultimately what I wanted to have happen. I'm glad to hear this person is now on the right path and is not committing any new crimes and is thriving in their life.” For most victims of crime — and again, we're not talking about murders or first degree rapes or anything like that, those are ineligible for expungement — but for most victims of crime, what they really want to have happen is for that person not to do it again, and for them not to harm anybody else and so by setting a record aside, once somebody has gotten back on the right path, most people are really very, very supportive of this.

HULR: Do you see the program in Washtenaw County/Michigan as a model for other states and cities? How do you recommend advocating for these changes as well as implementing similar programs?

ES: Absolutely. I do. I think that right now Michigan really is a national leader around expungement and I think we've been leaders here in Washington County and our prosecutor's office in terms of making these services available to people for free. The one thing I would say is I think a lot of states can take lessons from what Michigan has done with expungement. The scope of its availability – it encompasses a whole host of offenses and I think that's appropriate, so I encourage other states to look at Michigan for inspiration around that. A couple of things that I hope we can fix up in Michigan and I hope other states can learn from too, is number one, actually tomorrow, certain categories of crimes are going to be automatically expunged. You don't even have to go through an application process. April 11th is when that kicks in. There's a much longer waiting period for those and it excludes a whole host of offenses. But I really do think that if somebody is eligible for expungement, we should look at making that process automatic for a couple of reasons. Judges really very infrequently deny expungement applications— they usually are pretty happy to sign off on it. We're going through a process, a court process, that can delay somebody ultimately getting that expungement and for no real benefit because most judges are just going to sign off on it anyway, so why not make it automatic? The other thing is that often folks either don't know application expungements are available, they get deterred by the number of steps that it takes, or they are deterred by the cost of it, which is why we have our program here. You know, a private lawyer will charge around $2,000 to get an expungement done. That's well and good if you have that money, but for so many people the reason they're seeking an expungement is because they're seeking access to employment and they don't have the $2,000 to pay a private lawyer; if they don't have a job and they can't get the job, they can't get the records, so it's a Catch-22, which is why we offer our services for free and why we really saw value in that. In terms of legislative models, if you can make this automatic, it removes that barrier for people and I think that's tremendously important as well.