The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

Expungement: Eligibility, Extent And Effects
By Michael W. Fleming and Michelle L. Moore

All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship….

— Illinois Constitution of 1970,
Article I, §11.

Article I, Section 11 of the Illinois Constitution of 1970, relating to the limitation of penalties after conviction of a criminal offense, requires the punishing authority to fashion all punishments to advance the lofty goal of "restoring the offender to useful citizenship." Keeping the goal in mind, how does one become restored to useful citizenship, where the mark of criminality upon his reputation may carry with it the stigma of dishonesty, untrustworthiness, immorality, or depravity, depending upon the offense involved? A reputation tarnished by criminal conviction requires a cleanser strong enough to remove the stain and minimize public ostracism.1 The answer lies in the Criminal Identification Act, 20 ILCS 2630/5, which allows certain, qualified criminal defendants to mitigate the besmirching effects of a conviction, and, ultimately, earn expungement of the records of their arrest and prosecution. The underlying philosophy of expungement has always been to rehabilitate convicted offenders by providing "an accessible or effective means of restoring social status."2

As early as 1981, practitioners in Illinois grappled with the prerequisites to, and effects of, expungement. That year, Illinois Attorney General Ty Fahner noted that the term "expunge" had not been defined by statute or by judicial interpretation.3 However, the Attorney General, and subsequent appellate decisions, have consistently relied upon Black’s Law Dictionary, which defines "expunge" as "to destroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information – including criminal records – in files, computers, or other depositories." Black’s Law Dictionary 522 (5th ed. 1979) "Expungement of record" is defined as the "[p]rocess by which record of criminal conviction is destroyed or sealed after expiration of time." Black’s Law Dictionary 522 (5th ed. 1979).4 Though the definition seems succinct, the reality of expungement is not as straightforward.

In this regard, it should be noted that "expungement" of the record does little more than set up a comforting legal fiction, whereby a criminal defendant may believe that the misdeeds of his past have been effectively erased by the "obliteration" of the official records of the criminal event. If the official records of a crime are destroyed or sealed, and no one is allowed to speak of them, did the crime really happen? To the extent that an obliterative expungement seeks to re-write the defendant’s criminal history, a man who has been convicted of a crime, upon expungement, may be considered to stand on equal moral footing with the truly upright citizen, having no legally cognizable history of criminality. But what of unofficial memories, e.g., those found in media records or the recollections of the witnesses and victims?

The promise or hope of expungement can present a trap for the unwary, uninformed, or ill-advised defendant, who may see it as a way to keep his "clean record." For the mere act of expungement can neither undo the past nor re-write a defendant’s personal history. As such, it is imperative that attorneys representing criminal defendants properly understand the requirements for eligibility for expungement; those offenses for which expungement is not possible; those classes of offenders for whom expungement is not available; the factors a court should consider in evaluating a petition for expungement; and the limited, practical effects of expungement.

Fortunately, the answers to most of these questions lie within the Criminal Identification Act (hereinafter, "the Act"), which provides as follows:

2630/5. Arrest record and alias – Expungement – Fee

§5. (a) All policing bodies of this State shall furnish to the Department, daily, in the form and detail the Department requires, fingerprints and descriptions of all persons who are arrested on charges of violating any penal statute of this State, for offenses that are classified as felonies and Class A or B misdemeanors and of all minors who have been arrested or taken into custody before their 17th birthday for an offense that if committed by an adult would constitute the offense of unlawful use of weapons under Article 24 of the Criminal Code of 1961, a forcible felony as defined in Section 2-8 of the Criminal Code of 1961, or a Class 2 or greater felony under the Cannabis Control Act, the Illinois Controlled Substances Act, or Chapter 4 of the Illinois Vehicle Code. Moving or nonmoving traffic violations under the Illinois Vehicle Code shall not be reported except for violations of Chapter 4, Section 11-204.1, or Section 11-501 of that Code. In addition, conservation offenses, as defined in the Supreme Court Rule 501(c), that are classified as Class B misdemeanors shall not be reported.

Whenever an adult or minor prosecuted as an adult, not having previously been convicted of any criminal offense or municipal ordinance violation, charged with a violation of a municipal ordinance or a felony or misdemeanor, is acquitted or released without being convicted, whether the acquittal or release occurred before, on, or after the effective date of this amendatory Act of 1991, the Chief Judge of the circuit wherein the charge was brought, any judge of that circuit designated by the Chief Judge, or in counties of less than 3,000,000 inhabitants, the presiding trial judge at the defendant’s trial may upon verified petition of the defendant order the record of arrest expunged from the official records of the arresting authority and the Department and order that the records of the clerk of the circuit court be sealed until further order of the court upon good cause shown and the name of the defendant obliterated on the official index required to be kept by the circuit court clerk under Section 16 of the Clerks of Courts Act, but the order shall not affect any index issued by the circuit court clerk before the entry of the order. … The records of those arrests, however, that result in a disposition of supervision of any offense shall not be expunged from the records of the arresting authority or the Department nor impounded by the court until 2 years after discharge and dismissal of supervision. Those records that result from a supervision for a violation of Section 3-707, 3-708, 3-710, 5-401.3, or 11-503 of the Illinois Vehicle Code or a similar provision of a local ordinance, or for a violation of Section 12-3.2, 12-15, or 16A-3 of the Criminal Code of 1961, or probation under Section 10 of the Cannabis Control Act, Section 410 of the Illinois Controlled Substances Act, Section 12-4.3(b)(1) and (2) of the Criminal Code of 1961…, Section 10-102 of the Illinois Alcoholism and Other Drug Dependency Act when the judgment of conviction has been vacated, Section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act when the judgment of conviction has been vacated, or Section 10 of the Steroid Control Act shall not be expunged from the records of the arresting authority nor impounded by the court until 5 years after termination of probation or supervision. Those records that result from a supervision for a violation of Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance, shall not be expunged. All records set out above may be ordered by the court to be expunged from the records of the arresting authority and impounded by the court after 5 years, but shall not be expunged by the Department, but shall, on court order be sealed by the Department and may be disseminated by the Department only as required by law or to the arresting authority, the State’s Attorney, and the court upon a later arrest for the same or similar offense, the Department of Corrections shall have access to all sealed records of the Department pertaining to that individual.

...

(a-5) Those records maintained by the Department for persons arrested prior to their 17th birthday shall be expunged as provided in Section 5-915 of the Juvenile Court Act of 1987.

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(c) Whenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes expungement, he may, upon verified petition to the chief judge of the circuit where the person had been convicted, any judge of the circuit designated by the Chief Judge, or in counties of less than 3,000,000 inhabitants, the presiding trial judge at the defendant’s trial, may have a court order entered expunging the record of arrest from the official records of the arresting authority and order that the records of the clerk of the circuit court and the Department be sealed until further order of the court upon good cause shown or as otherwise provided herein, and the name of the defendant obliterated from the official index requested to be kept by the circuit court clerk under Section 16 of the Clerks of Courts Act in connection with the arrest and conviction for the offense for which he had been pardoned but the order shall not affect any index issued by the circuit court clerk before the entry of the order. All records sealed by the Department may be disseminated by the Department only as required by law or to the arresting authority, the State’s Attorney, and the court upon a later arrest for the same or similar offense or for the purpose of sentencing for any subsequent felony. Upon conviction for any subsequent offense, the Department of Corrections shall have access to all sealed records of the Department pertaining to that individual. Upon entry of the order of expungement, the clerk of the circuit court shall promptly mail a copy of that order to the person who was pardoned.

(d) Notice of the petition for subsections (a), (b), and (c) shall be served upon the State’s Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government affecting the arrest. Unless the State’s Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to the petition within 30 days from the date of the notice, the court shall enter an order granting or denying the petition. The clerk of the court shall promptly mail a copy of the order to the person, the arresting agency, the prosecutor, the Department of State Police and such other criminal justice agencies as may be ordered by the judge.

...

20 ILCS 2630/5. (Emphasis added.)

As a threshold matter, no criminal defendant who has previously been convicted of any criminal offense or municipal ordinance is eligible for expungement of his subsequent records of arrest or prosecution, even though they may otherwise be expungeable. Consequently, the expungement provisions of the Act primarily apply to first-offenders, or those offenders who have been able to avoid convictions and instead enjoyed the benefit of one or more terms of court supervision. Therefore, before advising a client as to the possibility of future expungement, it is imperative that the practitioner have an accurate picture of the client’s criminal history and all previous dispositions. Where there has been a conviction, there can be no hope of expungement; the client is simply ineligible.

Once the client’s conviction-free criminal history is ascertained, it must be determined whether the offense is one for which expungement is available. Essentially, the Act sets forth six categories of criminal offenses for expungement purposes: (1) those which are entirely expungeable, i.e. subject to expungement of the records of the arresting agency and the Department of State Police; (2) those which may be expunged by the arresting authority, sealed by the circuit court clerk, obliterated from the circuit court clerk’s permanent index, and sealed in the Department of State Police repository, no sooner than two years after completion of a term of court supervision; (3) those which may be expunged from the records of the arresting authority, deleted from the circuit court clerk’s permanent index, and sealed in the Department of State Police repository, no sooner than five years after completion of a term of court supervision; (4) those which are never subject to expungement; (5) those which are subject to the Juvenile Court Act; and (6) those offenses for which a defendant has received a pardon from the governor, specifically authorizing expungement of the records of arrest and prosecution. 20 ILCS 2630/5. In considering these six categories, the Legislature’s careful use of the terms "expunged" and "sealed" cannot be overlooked, as the practical effects of the expungement hinge upon this distinction.

The first category of expungeable offenses are those felony, misdemeanor or municipal ordinance violations for which an accused has been acquitted or released without being convicted, i.e. where the accused has been found not guilty or the charges have been dismissed. In these instances, upon granting a petition to expunge, the court may order that the records of the arresting agency and those of the Department of State Police be expunged. This is the only class of offense for which the statute provides expungement of both the arresting agency records and those of the State Police. Further, the court may order that the records of the circuit court clerk be sealed until further order of court, and only opened upon a showing of good cause, and that the name of the defendant be obliterated on the official index required to be kept pursuant to the Clerks of Courts Act. 20 ILCS 2630/5(a). Thus, once the expungement is granted, all records of the arrest are obliterated, except for the clerk’s records, which are sealed from public view, and only subject to disclosure pursuant to court order upon a showing of good cause.5 This type of expungement does not require any waiting period between the date of disposition of the underlying criminal charge and the filing of a petition to expunge. Because it is predicated upon the absence of a finding of guilt, this type of expungement most completely, obliterates the record.

The second category of expungeable offenses are those for which the records of the arresting authority and those retained by the Illinois State Police may be expunged, the court file sealed by the circuit court clerk, and the defendant’s name obliterated from the circuit court clerk’s permanent index, no sooner than two years after completion of a term of court supervision. This category of offenses includes all dispositions of court supervision, for all offenses not enumerated in the third category of offenses. A reading of the statute suggests that these offenses may be ordered expunged from the State Police repository. As such, this form of expungement, if granted by the expunging court, is equally obliterative as an expungement conferred in a case where the defendant is acquitted or discharged without conviction.

The third category of expungeable offenses are enumerated in the Act, and include: certain violations of the Illinois Vehicle Code; Domestic Battery (due to the unavailability of court supervision upon a finding of guilty of the offense of Domestic Battery, the Act seems to erroneously include §12-3.2 in this category); Criminal Sexual Abuse (only in cases where the victim is over the age of 18); offenses for which an offender has received probation pursuant to either §10 of the Cannabis Control Act or §410 of the Illinois Controlled Substances Act; offenses for which an offender has received T.A.S.C. probation. "Expungement" in these instances is limited to only those records of the arresting authority, and does not include the records of the State Police; additionally, the court file may be sealed by the circuit court clerk and the defendant’s name may be obliterated from the circuit court clerk’s permanent index.

For these offenses, though, a petition for expungement will not be considered any sooner than five years after completion of a term of court supervision. Moreover, as noted, records of these offenses will be retained, but will remain sealed, in the Department of State Police repository, for future reference, if needed. The records in this category are continuously maintained for purposes of future dissemination by the Department of State Police as required by law, or to the arresting authority, the State’s Attorney, or the court upon a subsequent arrest for the same or similar offense, or for purposes of sentencing for any felony. 20 ILCS 3650/5(a). As such, even if a client has successfully expunged prior dispositions of court supervision for an offense enumerated in this category, should he subsequently re-offend, the existence of his prior offense will be a matter of record in future prosecutions, and may properly be used in aggravation at sentencing.

The fourth category of offenses consists of those which are never subject to expungement. This includes, much to the chagrin of some members of the bar, the offense of Driving Under the Influence, which has not been subject to expungement since 1997. Additionally, offenses for which a conviction has entered are never susceptible to expungement (unless they fall within the sixth category, infra), i.e. most felony offenses (unless they fall within the parameters of the third category, supra). 20 ILCS 3650/5(a). Expungement is not available for any person granted supervision for or convicted of any sexual offense committed against a minor under 18 years of age, including but not limited to Indecent Solicitation of a Child and Criminal Sexual Abuse. 20 ILCS 3650/5(g). Finally, expungement is not available for a motorist’s petty traffic violations, as the Act is limited to ordinance violations, misdemeanors and felonies. As such, a disposition of court supervision on a non-petty traffic violation, such as speeding at 41+ miles per hour over the limit, may be subject to expungement.6

The fifth category of offenses are those subject to expungement pursuant to the Juvenile Court Act of 1987. Expungement of juvenile criminal offense records is governed by 705 ILCS 405/5-915, which sets forth the procedures by which a juvenile may petition for expungement upon the juvenile’s 17th birthday or whenever all juvenile court proceedings relating to that juvenile have been terminated, whichever event is later. In order to be eligible for expungement, the juvenile’s offense must have consisted of one of the following: (1) an arrest absent a petition for delinquency having been filed with the clerk of the circuit court; (2) a charge resulting in a finding that the minor was not delinquent for that offense; (3) the minor received, and successfully completed, a sentence of court supervision for the offense; and (4) the offense for which the minor was adjudicated delinquent would have been no more serious than a Class B misdemeanor if it had been committed by an adult. 705 ILCS 405/5-915(1).

For all other adjudications of delinquency, excluding adjudications based upon the commission of first degree murder and sex offenses which would be classed as felonies if committed by an adult, the juvenile-offender may petition the court to expunge all law enforcement records, if he has no adult convictions for crimes occurring after his 17th birthday, and upon occurrence of the latter of the following:

(a) attaining the age of 21 years; or

(b) the passage of at least 5 years since all juvenile court proceedings relating to him have been terminated or his commitment to the Juvenile Department of Corrections has been terminated.

705 ILCS 405/5-915(2)(a) and (b)

According to the express terms of §5-915(4), upon entry of an order expunging the records or files, the offense which is the subject matter thereof shall be treated as if it never occurred. Based upon the routine appearance of juvenile arrest and disposition records on adult, felony pre-sentence reports, one of two possible scenarios come to mind: either (1) emancipated minors typically fail to move for expungement of their juvenile adjudications, as provided in the Juvenile Court Act, and the records remain available for scrutiny by the court and prosecuting authorities; or (2) the records of adjudication are maintained by the State Police, despite the Criminal Identification Act’s stated deference to §5-915 of the Juvenile Court Act. 20 ILCS 3650/5(a-5). With regard to the former, it should be noted that a pending House Bill (Number 762) has been proposed. If passed, §5-915(1) would be amended in several regards. Most significantly, the act would require the automatic expungement of law enforcement records where the foregoing prerequisites for expungement of a juvenile record occur. Obviously, such an amendment would eliminate the problems for an adult defendant who has inadvertently failed to seek expungement of his juvenile records.

Finally, the sixth category of offenses subject to expungement are those offenses for which a defendant had received a pardon from the governor, and the pardoning document specifically authorizes expungement of the records of arrest and prosecution. A general pardon is insufficient to trigger the expungement provisions of subsection 5(c) of the Act. Rather, the pardoning document must specifically state that the pardonee is entitled to seek expungement of his criminal records.7 However, once endowed with the ability to seek expungement, i.e. eligibility, the pardonee must nevertheless convince the expungement court of his worthiness.

A pardonee, like all other expungement petitioners, must convince the expungement court of his worthiness for expungement. As noted above, the Illinois Constitution of 1970 has encouraged the rehabilitation of criminal offenders, urging that punishment be imposed with an eye towards restoration to productive citizenship. In contrast to this stated purpose, the State has compelling interests in deterring criminal recidivism; protecting its citizens from repeat offenders; and maintaining accurate records of criminal history. As such, a determination as to the propriety of an expungement must consider several factors in an effort to balance the competing interests of the convict seeking expungement, and the State.

It should be noted that the Criminal Identification Act, while specifying for whom and to what extent expungement procedures apply, does not set forth a definitive process by which courts are to assess petitions for expungement. Once the petition has been properly filed and served as directed in subsection (d) of the Act, the court shall enter an order granting or denying the petition, unless the State’s Attorney, prosecutor, the Department of State Police, or arresting agency objects to the petition within 30 days of its filing. While the Act considers the possibility of a law enforcement objection to the expungement, it does not set forth a standard for reviewing the merits of the expungement requests. The Act does not require the trial court to hold a hearing on the petition for expungement.8 Thus, the court is vested with broad discretion in ruling on a petition to expunge, insofar as the statute’s silence makes it clear that an evidentiary hearing governed by civil or criminal evidentiary rules or burdens is not required. As such, the nature evidence the trial court hears are subject to the judge’s discretion.9

In People v. Wells, 294 Ill.App.3d 405, 690 N.E.2d 645 (1st Dist. 1998), the court noted that the statute on expungement is discretionary in nature. In exercising this discretion, a court must be satisfied that the individual’s interest in being free from the criminal record outweighs the State’s interest in retaining it. The court set forth the following factors to be considered when evaluating the propriety of granting a petition to expunge: (1) the strength of the State’s case against the petitioner; (2) the State’s reasons for wishing to retain the records; (3) the petitioner’s age, criminal record, and employment history; (4) the length of time that has elapsed between the arrest and the petition to expunge; (5) the specific adverse consequences the petitioner may endure should expungement be denied; (6) the State’s interest in public safety; and (7) any other factor deemed relevant on a case-by-case basis.10 A trial court’s finding of worthiness is an integral part of the expungement process. Where a circuit court finds that an applicant for expungement is not worthy of the benefit of expungement, the court is free to deny the request.

Once expungement has been ordered, it is important to recognize the practical limitations of the order. While in certain circumstances, an offender’s record may be completely expunged from the records of both the arresting agency and the State Police (and the circuit court clerk’s records sealed), in many circumstances, the State Police records are maintained and merely sealed. By continuing to maintain these records under seal, the State Police are able to access the records and disseminate the contents thereof under certain circumstances. In this regard, an offender’s expunged records may be disclosed to certain State agencies or private organizations, such as law enforcement agencies for purposes of investigation of criminal offenses or background checks on prospective employees.11 Like many other jurisdictions, Illinois provides for the disclosure of criminal history information to State licensing boards in the areas of investment, accounting, law, medicine, pharmacology, nursing, child care, gaming, and gambling, to name a few. As such, a prior expungement that is not of the "most obliterative" variety, cannot be guaranteed to prevent a licensing board from learning of a defendant’s past misdeeds.

Moreover, expungement is ineffective in many regards, as it only restricts the flow of official criminal information. In many cases, there are alternative, unofficial sources of criminal history information, such as news media accounts, press releases, and witness, victim and police memories of the offense.12 Additionally, with the burgeoning use of the Internet, and accessibility of public information via the Worldwide Web, maintaining any air of secrecy about prior criminality, regardless of expungement, is likely to become increasingly difficult.

As a final note, while criminal defendants in Illinois enjoy the availability of expungement via judicial application, federal defendants are not so fortunate. Specifically, there is no federal statute which authorizes the federal courts to order expungement of the records of any agency of the Executive Branch, such as the FBI, ATF, or DEA. Rather, if a federal defendant wishes to have his records of arrest, prosecution or conviction expunged, he must go directly to the President and petition for such relief.13 This fact is particularly interesting in view of former President Clinton’s issuance of 11th hour pardons to 140 defendants and 36 sentence commutations in January, 2001. Ironically, the media attention over the pardons or commutations, of Susan McDougal, Roger Clinton, Patty Hearst, and Marc Rich, arguably highlighted the criminality of these subjects. And if President Clinton failed to direct expungement of their criminal records, the official records of their arrests and prosecutions remain matters of public record, subject to future disclosure. 14

Though there are some practical difficulties with Illinois’ present expungement scheme, the mere availability of expungement, with its promise of a "clean slate," is undoubtedly an important tool in encouraging youthful and first-time offenders to reform and become productive, law-abiding members of society. Clearly, where one hopes to restore his or her reputation, expungement is a helpful first-step to overcoming the embarrassment, and stigma of prior criminality.

1 Barry M. Portnoy, Employment of Former Criminals, 55 Cornell L.Rev. 306, 306 (1970)(quoting Brown v. Crenshaw, 80 Eng.Rep. 1028 (K.B. 1614).

2 Michael D. Mayfield, Revisiting Expungement: Concealing Information in the Information Age, 1997 Utah L.Rev. 1057, 1068 (1997)(hereinafter "Mayfield").

3 1981 Ill.Att’y Gen.Op. 1; cited as authority in 2000 Ill.Att’y Gen.Op. 1, p.5-6, issued March 7, 2000; Criminal Law and Procedure: Expungement of Records.

4 People v.Hansen, 198 Ill.App.3d 160,166, 555 N.E.2d 797, 144 Ill.Dec. 438 (4th Dist. 1990).

5 See People v. Satterwhite, 319 Ill.App.3d 931, 746 N.E.2d 1238, 254 Ill.Dec. 190 (4th Dist. 2001).

6 Satterwhite, 319 Ill.App.3d at 935.

7 People v. Thon, 319 Ill.App.3d 855, 746 N.E.2d 1225, 254 Ill.Dec. 177 (2nd Dist. 2001).

8 People v. Wells, 294 Ill.App.3d 405, 408, 690 N.E.2d 645, 228 Ill.Dec. 886 (1st Dist. 1998).

9 Chesler v. People, 309 Ill.App.3d 145, 152-153, 722 N.E.2d 668, 242 Ill.Dec. 884 (1st Dist. 1999).

10 Wells, 294 Ill.App.3d at 409.

11 See McCraven v. City of Chicago, 109 F.Supp.2d 935 (N.D.Ill 2000).

12 Mayfield, Supra. note 2, 1997 Utah L.Rev. at 1068.

13 U.S. v. Szelag, 1997 WL 83306 (N.D. Ill 1997), citing U.S. v. Janik, 10 F.3d 470, 472 (7th Cir. 1993).

14 See Janik, 10 F.3d at 472, cited with approval in Anderson v. Cornejo, 1999 WL 35307 (N.D.Ill 1999).

Michael W. Fleming

Michelle L. Moore graduated from U of I, Champaign-Urbana in 1992; graduated from Loyola University Chicago School of Law in 1995. She is a former Assistant State’s Attorney in DuPage County, and now a sole practitioner in Oak Brook, Illinois, concentrating in criminal defense, forfeitures and appeals.


 
 
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