Expungement: an “all or nothing” remedy- a person with even one adult conviction is not eligible for expungement in Illinois.

Expungement eligibility in Illinois is not decided in a vacuum, but rather a person’s entire criminal record is analyzed to determine qualification. My clients are sometimes astounded by the factors that convert their otherwise expungeable criminal record into non-expungeable one. At times it is even a client’s non-compliance with a misdemeanor court order that dictates whether or not his/her entire criminal record is eligible for expungeable at all. Take the following example:

I recently met a thirty year old man with only two arrests on his adult criminal record. Most recently, in 2005, this individual was arrested on two counts of first-degree murder. The man exercised his constitutional right to a trial on these charges, and was found not guilty by a jury of his peers in March 2009. Accordingly, a conviction (as defined by 20 ILCS 2630/5.2(a)(1)(C)) on these charges was never entered on the man’s record.

This same man had only one other arrest on his record – a misdemeanor public fighting charge from 2002. On that case, the man had received court-ordered supervision from the judge; had he “successfully completed” such supervision, it would not have resulted in a “conviction” (see 20 ILCS 2630/5.2(a)(1)(C)), thus allowing the man to proceed with his expungement petition. However, the man did not in fact complete his supervision, and the judge revoked it, which resulted in a finding of guilty (i.e., a conviction) on the underlying misdemeanor charge. Since only a person with no adult convictions is eligible to have his/her criminal record expunged, this conviction, even though for a misdemeanor offense, made the man’s record non-eligible for such a remedy.

Although beyond the scope of this posting, it is worth noting that there are certain circumstances under which a non-expungeable criminal record may be eligible for sealing. However, there are currently only four felonies (all Class 4) that can be sealed, even if the felony results in an acquittal or dismissal. First-degree murder does not fall into this category. Ultimately, this man’s only potential remedy is for executive clemency – a very extraordinary remedy indeed.