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.
For determining eligibility for expungement or sealing, it does not matter if the felony theft conviction was from 30 years ago, nor does it matter if the individual was convicted of a Class 4 felony (least serious) instead of a Class X felony (most serious). Of course, all of these factors would be considered by the Illinois Prisoner Review Board in deciding whether to recommend a petitioner’s request for clemency – and ultimately by Governor Quinn himself. Obviously, the longer the period of time that has passed since a person’s conviction(s) and the lesser the degree of seriousness will all be regarded positively when a clemency petition is analyzed. Ultimately, however, the point to be made is that clemency is the only form of relief potentially available to a person with a felony theft conviction on his or her criminal record. Though I am not advocating theft, to my way of thinking, this is a very harsh result for comparatively minor conviction in many cases.