Last Saturday I had the wonderful opportunity to participate in the Vermilion County Expungement and Sealing Summit at Danville Area Community College. It was an event that brought attorneys and law students together to help members of the public work through the process of expunging or sealing their eligible criminal records. It was sponsored by Public Interest Law Initiative, Cabrini Green Legal Aid, Danville Restoring Our Community (DROC), Land of Lincoln Legal Assistance Foundation, and a number of other great groups and individuals.
In addition to being an important step in the process of reforming and rehabilitating people who have had prior criminal transgressions, helping people petition to have their records expunged or sealed is enormously gratifying work. Very few other places in the law allow me to work with people so full of hope and optimism, working to make a better future for themselves and their families.
Why should criminal records be expunged or sealed?
A criminal record can be an anchor on your future that can hamper your ability to get a job, get a loan, pass a background check, or get a professional license. The Illinois legislature has recently come to recognize the significant way in which a criminal history continues to punish you for mistakes long in the past that no longer reflect the person you’ve become. Therefore, to help people who have learned from their mistakes and are making the best effort to become productive citizens, the State of Illinois has passed recent laws that make it easier for people to expunge or seal past criminal histories.
Once a record is expunged or sealed, a prospective employer may not consider the fact that records were expunged or sealed when making a hiring decision.
What is expungement or sealing?
“Expungement” means that the records are completely physically removed from the files and all reference of the case is destroyed.
“Sealing” means that the records are preserved, but the details of the case are not available for viewing except by court order.
What kinds of cases can be sealed or expunged?
Exactly how and when a case can be expunged or sealed depends on the type of offense, how the case was resolved, and when the case ended. In cases that are not immediately eligible to be expunged, the waiting period to expunge or seal is measured from the time that the sentence is completed.
Cases which have been dismissed or in which a judge or jury found the defendant “not guilty” are eligible for immediate expungement. Cases which ended in court supervision are eligible for expungement two years after the successful completion of court supervision in most cases, but may be eligible after five years for certain traffic, domestic violence and sex crime offenses. Cases which end in a qualified type of probation can be expunged five years after the successful completion of the probation. In the last case, a clean drug test within 30 days of submitting the petition to expunge may be necessary.
In addition, convictions of possessing less than 30 grams of cannabis will begin to be automatically expunged starting in 2021. You shouldn’t have to do anything to get these expungements done; Illinois is doing it on its own. However, it will be a several year process to destroy the 770,000 or more criminal records involved, and it remains to be seen how thorough a job Illinois actually does.
Convictions of possessing between 30 and 500 grams of cannabis will become eligible for expungement by the Illinois Prisoner Review Board. That process also begins in 2021 and many details of the process have yet to be worked out.
Cases are generally eligible for sealing three years after the defendant’s last criminal case was completed. If there are intervening criminal cases – even if they are unrelated to the original case – the records of the original case cannot be sealed until three more years have passed after the last criminal case was completed. Past criminal cases cannot be sealed if there is a new criminal case pending. If the case to be sealed involves illegal drugs, a clean drug test within 30 days of submitting the petition to seal may be necessary.
A subsequent felony conviction can result in the Court unsealing any previously sealed cases.
How do I get my case expunged or sealed?
The process for expungement or sealing begins with filing a petition in the county where the criminal offense arose. The Illinois Supreme Court created a standard petition form and have posted it to its website.
The exact process for filing this petition varies from county to county. The office of the county’s Circuit Clerk should be able to direct you to the proper forms to be filed in addition to the petition. You may be required to provide a record of arrests and prosecutions (“a RAP sheet”), submit fingerprints, or provide a certification of the disposition of your case.
Regardless of county, you will need at least the case number, arrest date, information on how the case was resolved and on what date it was resolved, which police department made the arrest or wrote the ticket and the department’s address, and the name and address of the chief legal officer of the relevant city or county who prosecuted the case.
Once the petition and other documents are filed, the County Clerk will send notice of the petition to the police department that made the arrest, the office of the prosecutor that prosecuted the case, and the Illinois State Police. Those organizations will then have sixty days to object to the petition to expunge or seal the records. If they object, the Court will set a hearing date to rule on the objection and give all parties at least 30 days-notice of the hearing date, although the hearing could happen significantly later depending on how busy the court is.
At the hearing, you can hear the objections the other parties may have. They may have a disagreement as to the eligibility of the record to be sealed or the timing of the petition. If it was a particularly serious crime, they may want you to wait longer before proceeding with the petition or bring some evidence as to how you have changed your life since the original incident. You will have the chance to withdraw your petition and try again later if it looks like the petition is going to be denied. If your petition is denied, you can file a Motion to Reconsider within 60 days of the denial and will have a chance to address any of the issues brought up by the attorneys or judge.
How do I get started?
Various legal aid organizations such as the ones involved in the Vermilion County event hold similar events throughout Illinois throughout the year. Do a Google search for your county and “expungement and sealing summit” to find out when one might be held near you.