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“I am a solo practitioner attorney who devotes a significant portion of my practice to criminal records law.

I represent many individuals in need of executive clemency in order to “clean off” their criminal records. I sincerely appreciated the Dec. 28 editorial [“Decide quicker on clemency cases“] about the importance of Gov. Quinn’s continued focus on clearing the backlog of clemency petitions from his desk, many of which were left by his predecessor.

New petitions are being submitted in record numbers, thus increasing the number of undecided petitions drastically. I definitely appreciate that Gov. Quinn, since taking office, has been pushing through the backlog of these petitions in a reasonably efficient manner.

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PART 1 OF 2

I am usually asked at least once a day if, after learning of a potential client’s criminal history I can guarantee his or her petition for expungement (or sealing, as the case may be) will be granted. While I realize that many of my clients are coming to me because they are unable to find employment with certain felonies, or even misdemeanors, on their criminal records, and that even the smallest legal fees become overly burdensome, I cannot, legally or morally, guarantee a positive result. Trust me, no one wants to win on a petition for expungement or sealing more than I do! However, it would be wrong of me to make a promise I cannot fulfill, and I refuse to do so. Instead, when faced with this type of situation, I try to explain to my client, present or future, that while I can advise him or her if he is ELIGIBLE for the type of relief being sought, and further, I can give my professional opinion as to the LIKELIHOOD of a petition for relief from one’s criminal records, ultimately, this is a discretionary remedy and the presiding judge of the district at issue has the final say.

What I mean when I use the term “eligibility” is whether or not the law allows for a particular criminal record to be expunged or sealed. It is often times, therefore, referred to as “statutory eligibility”. The Illinois Criminal Identification Act is very specific in what and what does not qualify for certain relief. In several of my previous blog posts, I’ve discussed the fact that under 20 ILCS 2630/5.2 et seq., any person with a conviction in any jurisdiction is not eligible for relief through a petition to expunge. This is not my decision, it isn’t the State’s Attorney’s decision, and it’s not even the judge’s decision; instead, our state lawmakers have come to agreement that a person who has been convicted of any criminal offense in any state in our nation is not eligible to have his or her criminal record expunged. Once the judge makes the determination that the petitioner has actually been convicted of a criminal offense, that petition to expunge his or her criminal records will be automatically denied. The same logic applies to the limitations around when someone may file a petition to seal his or her criminal record (see previous blog entries including this one).

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Many of my clients are finding themselves in the position of needing to petition for executive clemency in order to clear even one felony theft charge from their criminal record. As I’ve previously mentioned, someone with even one conviction in his/her past is not eligible for relief through the expungement process. Moreover, when the charge has risen to the level of felony, chances are even the arrest is not sealable. What this means is that even if a person was charged, and latter acquitted, or alternatively, the charges were dismissed, that original felony arrest will remain a permanent part of the person’s criminal background. (The four exceptions to this general rule are discussed here.) This leaves a person with even one arrest for felony theft with no option but to seek clemency from the Illinois governor.

Under Illinois law, a person has committed “theft” when he/she “obtains” property from its rightful owner either through “unauthorized control”, deception or threat and moreover, has intended to permanently keep the property at issue away from its rightful owner. 720 ILCS 5/16-1 et seq. Depending upon the value of the property as issue and where (or who) it was taken from will determine if the crime is to be considered a misdemeanor or a felony. There is only one possibility where theft in Illinois will be considered a misdemeanor (Class A), and that is where the property has not been taken from another person, the property’s value is less than $300.00, the property was not removed from a school, church or governmental property, and the person taking the property has not previously been convicted of theft or any related offense. (See 720 ILCS 5/16-1(b) et seq.)

The likelihood of all of the criteria set forth above being met, thus allowing a theft charge to be classified as a misdemeanor is relatively small. Even a theft of $300.01 will be considered a felony. For purposes of clearing a person’s criminal record, the distinction between misdemeanor and felony convictions is extremely important, as again, the general rule of thumb is that the latter are neither expungeable nor sealable.

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It seems a bit counterintuitive that in Illinois, a person who is merely arrested, but not formally charged with a crime (i.e., this person is “released without charging”, or “RWOC”) must proactively seek to have his/her arrest expunged or sealed. After all, with regard to felonies, if the arresting officer(s) had presented the State’s Attorney’s Felony Review Unit with ample evidence that the suspect did in fact commit the crime in question, that suspect would have been formally charged with the crime, thus beginning the criminal charging “process”. Instead, the Assistant State’s Attorney involved in the felony review process must have either determined that the evidence against the suspect was insufficient to warrant felony charges, or alternatively, that no felony offense was at issue. Moreover, in a situation where the State’s Attorney’s Felony Review Unit has rejected felony charges against a suspect, the police still have the authority to charge that suspect with a misdemeanor is they so choose. Again, if there is not sufficient evidence to charge that suspect with even a misdemeanor offense, he/she is released from police custody most likely thinking that is the end of the ordeal.

It therefore surprises many of my clients that this mere arrest and subsequent release without charging remains on his or her criminal record. I’ve seen numerous instances where an individual has honestly forgotten all about the arrest and RWOC, as many years may have passed without that person having any interaction with the law. In terms of obtaining employment, there are some protections afforded by our state laws with regard to what an employer or employment agency may consider regarding to a person who has been arrested but not charged, but ultimately, it is in that person’s best interest to petition the court for either expungement or sealing of the arrest record at issue. The basic rules surrounding expungement and sealing eligibility that I’ve discussed in previous blog entries still apply in this type of situation. (See also 20 ILCS 2630 et seq.) So, practically speaking, a person with just one or more arrests that result in dispositions of “release without charging” will be eligible for expungement relief, but a person who has an arrest and RWOC, plus any conviction for an unrelated crime will only be eligible for sealing.
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In the arena often dubbed “the collateral consequences of conviction”, the gubernatorial pardon, as discussed in my previous blog entry, can be considered the “patriarch” of relief procedures, but as a practical matter, it is an extraordinary form of relief that can take many years to be granted. However, more readily obtained forms of relief such as the sealing or expungement of one’s criminal record are only available to individuals meeting very specific criteria, as also previously discussed. In January 2004, the Illinois Unified Code of Corrections was enlarged via Article 5.5 (730 ILCS 5/5-5.5 et seq.) to create a potential solution for someone with a criminal record who, although technically eligible for a pardon, in all likelihood would not be considered sufficiently “rehabilitated” – a subjective criteria closely tied to the length of time since an individual’s last criminal offense – to realistically be considered for such comprehensive relief. This additional statutory relief came in two forms, generally: (1) a Certificate of Relief from Disabilities and (2) a Certificate of Good Conduct.

In Illinois, both the Certificate of Relief from Disabilities and the Certificate of Good Conduct are reserved for individuals with no more than two non-violent felony convictions. Generally speaking, these certificates serve to relieve an employer of civil or criminal liability for an act or omission by the person to whom the certificate was issued. There is not an abundance of information regarding certificates as a form of relief, especially information focused on the Certificate of Good Conduct. Moreover, with regards to this latter type of certificate, the statute remains somewhat vague, leaving what seems to be much room for speculation about its purpose and use. (See 730 ILCS 5/5-5.5-25 et seq.)
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Generally speaking, an Illinois employer or prospective employer may use information from a person’s criminal history record to make a decision about whether or not to hire (or retain, if the individual has already been provisionally hired) that person. Of course, there are several key exceptions to this generality, the most notable being that an employer cannot use arrest or other criminal history record information that has previously been ordered expunged, sealed or impounded under Section 5.2 of the Illinois Criminal Identification Act (20 ILCS 2630/5.2) as a basis to refuse to hire or discharge an individual.

Moreover, no employer in Illinois, public or private, is allowed to use “discriminating factors” to base a decision of employment on. The Illinois Human Rights Act, 775 ILCS 5 et seq., sets forth in Section 102(A) a list of factors that constitute “unlawful discrimination”; these factors include race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, and sexual orientation. (See 775 ILCS 5/102(A).)

Additionally, an employer cannot deny a person who has been arrested, but the charge was subsequently dismissed, a job based upon the dismissed charge. However, as is so often the case with the law, there’s a bit of a catch: the statute does not prohibit an employer/potential employer from using means besides a person’s arrest report itself from determining whether that person actually engaged in the conduct he/she was arrested for, and then denying the person a job based upon that independent information. (See 775 ILCS 5/103(A) and 775 ILCS 5/103(B).)
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My clients can be very dismayed when they first learn that their criminal records are not eligible for either expungement or sealing under Illinois law (see 20 ILCS 2630/5 et seq.) However, all is not lost at this point; a petition for executive clemency may be a feasible solution for some of these clients.

Currently, expungement in Illinois is only available to a person who has never been convicted of any misdemeanor, felony or municipal ordinance violation. Sealing is only available to someone with minor, non-violent, non-sexual misdemeanor convictions, and four Class 4 felony convictions (i.e., prostitution, possession of cannabis, possession of controlled substance, and carry/possession of a firearm between the years 1995 and 1999 (see People v. Araceli Cervantes, 189 Ill.2d 80 (1999); 723 N.E.2d 265 (Ill. 1999).)

This does not mean, however, that because a person is not eligible for relief under Illinois expungement and sealing laws that he or she is left without a potential remedy – gubernatorial clemency is always an option. Pursuant to the Illinois Constitution, Article V, Section 12, “[t]he Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses on such terms as he thinks proper. The manner of applying therefore may be regulated by law.” The term “clemency” is basically an umbrella term that encompasses the various mechanisms through which the Governor can remit (essentially, “forgive”) the consequences of a crime. For my clients who are looking to ultimnately clean off their criminal records through executive clemency, he or she will want to file a petition for “pardon with full expungement” as this will allow him/her to achieve that purpose.

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Many people seeking to clear their criminal records through the Illinois expungement and/or sealing laws are quite surprised to learn that certain traffic law violations can affect the outcome of their situation dramatically. Not only do certain violations of the Illinois Vehicle Code (625 ILCS 5/ et seq.) result in a person becoming technically non-eligible for expungement and/or sealing relief, but even where the individual is still eligible for such relief, the waiting period that must expire prior to that individual seeking such a remedy is in many cases drastically increased. Essentially, this idea is an extension of the discussion from my previous blog entry titled “Expungement: an ‘all or nothing’ remedy”, but here, I would like to cite some specific examples dealing with traffic law violations.

As I previously posted in my blog entry titled “Illinois expungement and sealing laws: not as straightforward as many people think”, only a person who has never been convicted of a criminal offense in his or her adult life is eligible to petition the court for expungement relief. (See 20 ILCS 2630/5.2(b) et seq.) As discussed, the Illinois expungement and sealing statute is very specific, however, in defining the term “conviction” – generally speaking, a criminal case ending by way of conditional discharge, general probation, a prison sentence or a fine for a municipal ordinance violation are among the categories embraced by this term. A court-ordered supervision does not normally prevent an individual from seeking relief under the expungement laws of Illinois. However, there is one notable exception: a supervision received for driving under the influence (“DUI”) in violation of 625 ILCS 5/11-501 et seq. does make an otherwise expungeable criminal record non-expungeable.
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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.

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There are so many common misconceptions about what can and cannot be expunged from an adult’s criminal record in the state of Illinois. Moreover, it’s not just the general public who is confused about the state of our laws in this area; I’ve encountered numerous attorneys, and even a few judges, who are providing erroneous guidance to individuals seeking to “clean up” their criminal records. Not only are the laws in this area quite complex, but the actual filing procedures through which one petitions the court for relief can differ significantly between various Illinois counties, even within the different municipalities that comprise Illinois’ largest county (as measured by population): Cook. It is my goal in setting up the Illinois Expungement Lawyer Blog to provide fact-based, easy-to-understand, and hopefully even interesting information about the current state of Illinois expungement, sealing, and clemency laws.

Expungement and sealing of adult criminal records in Illinois is a statutory remedy governed by 20 ILCS 2630/5 et seq. Although there are some additional nuances, the definitional difference between the two terms is that to “‘expunge’ means to physically destroy the records [in question] or return them to the petitioner [i.e., the person who is in the process of expunging his/her criminal record]” (20 ILCS 2630/5.2(a)(1)(E)) while to “‘seal’ means to…maintain the records…but to make [them] unavailable without a court order…” (20 ILCS 2630/5.2(a)(1)(K)). The primary ramification of the different meanings is that expunged records can only be accessed by law enforcement if a person is arrested and charged with the same or a similar offense, while sealed records can be accessed by any agency or entity that is allowed access under the statute.

Since expungement is the preferable remedy, then, it’s not surprising that it is reserved for individuals who have never been convicted as an adult. This means, for purposes of the Illinois expungement remedy, that the individual has not been convicted in any state. Furthermore, the statute continues on to define what is meant by a conviction; “conviction” is defined as a plea of guilt by a defendant, or a finding of guilt by either a judge or jury, which results in a sentence of conditional discharge, general probation, time considered served, incarceration, and even fines (for municipal ordinances). See 20 ILCS 2630/5.2(a)(1)(C). A dismissal or acquittal, on the other hand is not considered a conviction, nor is the imposition of court supervision or “qualified”, “first offender” probation. See 20 ILCS 2630/5.2(a)(1)(J).

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