A NEW FRONTIER IN ILLINOIS SEALING AND EXPUNGEMENT LAW
Almost half of all adults in Illinois have some sort of criminal record.[i] If you’re reading this blog, you’re already curious about the negative impact a criminal record can have on an individual’s lifetime potential. Historically, expungement and sealing of a criminal record in Illinois was extremely limited. Only nine felony offenses were eligible for sealing. Additionally, if you had even one conviction on your record, you could not receive an expungement. Governor Rauner flipped the script over the last two years with two new amendments (HB 2373 & HB 6328) to the Criminal Identification Act, 20 ILCS 2630. House Bill 2373 makes almost all felonies eligible for sealing, with the exception of a handful of criminal offenses. House Bill 6328 allows people with a prior conviction to petition for expungement. Robert J Callahan is a top Chicago criminal attorney.
As of August 24, 2017, you may petition for the sealing all convictions except for the following:
- Domestic battery
- Battery or aggravated battery on unborn children
- Violations of orders of protection
- DUI
- Reckless and aggravated reckless driving
- Sex crimes
- Violating/attempting to violate the sex offender registry
- Crimes against animals under the Humane Care for Animals Act
Notice, this amendment theoretically allows for the sealing of even violent offenses, not to mention high-level drug and theft offenses. People with eligible cl. X, cl. 1, or cl. 2 felony convictions can now potentially get their convictions sealed. Never has Illinois law for sealing criminal records been so liberal and permissive. With HB 2373, thousands of previously ineligible people can now apply for sealing!
But what exactly is sealing? What’s the difference between sealing and expungement? What about clemency? Are there other options? Read below for a short explanation of these terms according to Illinois law.
Sealing:
- When records are sealed, the petitioner’s name is removed from any official index or public record on the case. The records are physically and electronically preserved but are unavailable to the public without a court order. Law enforcement and the court system will still have access to the records.
- Applicants must wait at least 3 years after completing their sentence before applying for sealing.
- Most importantly, upon sealing, you no longer have to disclose this conviction to employers. In fact, it is against the law for employers or potential employers to ask whether or not you’ve had any records expunged or sealed.[ii] Only employers required by state and federal regulations to conduct criminal background checks can require disclosure, such as a hospital, school, childcare, or government entity. For this reason, it is important to hire a qualified attorney to guide you through the sealing process.
Expungement:
The major difference between expungement and sealing is the destruction or obliteration of the actual records.
- When a petition to expunge is granted the petitioner’s name is removed from any official index of public record and the records are actually destroyed. Prior to the enactment of House Bill 6328 in August of 2016, if you had any conviction on your record, you were disqualified from expungement.[iii] Thousands of people who were previously ineligible can now petition for expungement.
- Like sealing, you do not have to disclose an expunged offense to an employer. There is no waiting period for arrests that didn’t result in a conviction.
- Most misdemeanor offenses resulting in a sentence of supervision require a 2-year waiting period. Felony offenses eligible for expungement have a 5-year waiting period.
Clemency:
Clemency, also known as a pardon, is the official forgiveness for the commission of a crime. In addition to pardons, clemency can also be a commutation, or a reduction, of a current prison sentence. Unlike expungement and sealing, there is no waiting period to file a petition for clemency. In reality, the more time that has passed since the offense, the greater the chance of obtaining a clemency. It is important to note that a pardon is not a declaration of innocence. However, once an individual obtains a pardon, they can apply for expungement after 5 years.
Certificate of Rehabilitation:
Certificates of rehabilitation can be issued regardless of whether or not you qualify for expungement or sealing. A certificate of rehabilitation will not remove the criminal conviction from your record. It can be included with a job application to explain your prior criminal history and current rehabilitation as a productive member of society. These types of certificates are issued by the Circuit Court and come in two forms. The first is a certificate of good conduct. A certificate of good conduct removes any civil and criminal liability from your employer if they choose to hire you. The second is a certificate of relief from disability. A certificate of relief from disability allows you to obtain a professional license despite your criminal history.
Act Now and Find Out If You Qualify:
While House Bill 2373 drastically expands an individual’s ability to seal their criminal record in Illinois, it is by no means a free-for-all. Just as before, judges have the discretion to grant or deny petitions for sealing or expungement. For this reason, it is crucial that anyone considering sealing, expungement, or applying for clemency hire an experienced, knowledgeable, and dedicated law firm. At Robert Callahan & Associates, we stay ahead of the law so our clients can stay in front of their rights. We believe in second chances. Let us get you yours.
[i] https://www.heartlandalliance.org/policy-and-advocacy/wp-content/uploads/sites/8/2016/02/Aug26-SB42-press-release.pdf
[ii] 775 ILCS 5/12-103(A)
[iii] Exception: Honorably Discharged Veterans convicted of certain cl. 3 & 4 felonies