Illinois expungement and sealing laws: not as straightforward as many people think.

April 21, 2010
By Jorie K. Johnson on April 21, 2010 5:06 PM |

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).

Procedurally, there are additional hurdles that must be met prior to an individual being granted an expungement of his/her adult criminal record. For example, there are specific waiting periods set forth in the statute that must be met; these defined amount of years depend upon the type of crime the person is attempting to expunge. And, it is worth noting that if a person has multiple crimes that qualify for expungement, the longest waiting period must be met before that person's entire record becomes otherwise eligible for expungement.

This brief overview of expungement law is just the beginning - there are numerous and detailed subtleties within the statute. What I hope I have begun to convey through this post is that within Illinois, the expungement and sealing laws are complex and sometimes confusing, even to trained professionals. This overarching field of criminal records, as it is often referred to, is truly a specialty within the law. There are so many reasons a person wants, and often times needs, to clean up his or her adult criminal records; the best course of action for such an individual is to hire an attorney who specializes in this intricate field to assist him or her in navigating the waters of expungement and sealing laws and procedures.