Can’t expunge or seal your criminal record? You may want to petition for executive clemency.

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.

Although the Illinois Constitution gives our Governor broad discretion and ultimate power in deciding who he will or will not grant clemency to, there are certain statutory procedures set forth under the Illinois law (see e.g., 730 ILCS 5/3 et seq.) Moreover, the Illinois Prisoner Review Board creates its own set of requirements, including deadlines for filing a clemency petition, setting forth what information must be contained within the petition, etc. (see the Illinois Prisoner Review Board’s website). Furthermore, at least one Illinois appellate court opinion has determined that there is no due process right to a ruling on one’s clemency petition within a certain amount of time. (See Bowers v. Quinn, No. 08-4153, Decided April 2, 2009).

Practically speaking, whether or not an individual’s petition for clemency will be granted, or even considered, becomes a function of the political importance a particular governor places on the process. Former Illinois Governor Blagojevich, for example, did not seemingly place much importance on his clemency power; he did not regularly review clemency petitions, and when he left office, there was a backlog of over 2,600 petitions for clemency sitting on his figurative desk. On the other hand, current Illinois Governor Quinn has made it a priority to review these, as well as newly filed petitions for clemency, in a reasonably timely fashion. As of a press release dated April 2, 2010, Governor Quinn has acted upon a total of 769 clemency petitions, and has granted 321 pardons, authorized 8 individuals who had previously received pardons to file expungement petitions in the appropriate circuit court, and completely denied relief on 440 petitions. Ultimately, it is worth remembering that even if you are not statutorily entitled to the remedies of expunging or sealing your criminal record, it may be worth hiring an experienced attorney to help you submit a petition for executive clemency to the Governor. Although clemency is not a quick solution, it remains an invaluable tool for those looking to purge their criminal records and start afresh in society.