Clearing a Criminal Record in Illinois

Clearing a Criminal Record in Illinois

Last updated: August 2004

Inroduction

MODERATOR: My name is Christine Farrell. I’m from Cabrini Green Legal Aid Clinic. I’m the director of our criminal records program and I’m going to speak today on criminal records and clearing up criminal records. There are three main ways to clear a criminal record in Illinois. The first is an expungement. The second is a sealing. The third is an executive clemency. I’m going to be touching on each one. For the most part, what I’m going to be speaking on only deals with the Illinois Law. The laws regarding clearing a criminal record are very different state to state, so if you’re not in Illinois, I would highly recommend checking with the laws in that state. The process might be kind of similar, but in each state, there are very different laws regarding especially expungements. Also, I’m going to be speaking a lot of times from the perspective of someone who has a criminal record in Chicago. The forms that I’ll be talking about all deal mostly with Chicago, although at any different county clerk’s office, you would be able to find the forms for expungment and sealing in those areas. When it comes to executive clemency, it would be the same all around the State of Illinois.

Expungement- Eligibility

So to start with, expungement. Expungement means actually to literally expunge the record – to take the record and literally take it out from view from both the police departments, the Illinois State Police, and out of view from the Clerk’s computer, the Circuit Court’s computer that is public record that people would be able to see. This means that employers and law enforcement would not be able to see these records. For an expungement in Illinois, a person cannot have any kind of conviction. Expungement is only eligible for people who have no convictions anywhere on the record. In looking at this, you have to look at the entire record as a whole. What I would recommend for anyone looking at doing an expungement, do a sealing, or doing an executive clemency, is to first find out the person’s entire record. That would mean getting what is often called the rap sheet. You can get their rap sheet from a police station. In Chicago you would need to go to the main police station at 3510 South Michigan. The person would actually have to go themselves. A lawyer cannot go for them because the person gives their fingerprints and then their entire record is then printed out and given to them. That would be their entire record for that police district. So, if you’ve only been arrested by the Chicago Police Department, they will have your entire record. That will show everything even back from 20, 30, 40 years ago. For an expungement, you do have to look at the entire record. So if you’re looking at the rap sheet, you have to have no convictions anywhere on that rap sheet. If there is one conviction, then unfortunately the person is not eligible for an expungement. To figure out whether there is a conviction, you have to go through every single case. Of course, cases which are dismissed, cases in which the person was arrested but never charged, cases where the person was found not guilty, there was found no probable cause, all those are of course non-convictions. There are some things that are on a record that might look like a conviction but aren’t. Some examples of that are the outcome of supervision. In Illinois there is an outcome of supervision. It’s typically considered less severe than probation, conditional discharge. It is an outcome to a case – it might be six months, a year, eighteen months, two years – it is not considered a conviction as long as the person completes their supervision. It’s a non-reporting kind of outcome that is not a conviction. So if you have supervision, that would still make you eligible for an expungement as long as you don’t have any other convictions. There’s also one specific type of probation which is for first time drug offenders. It is a specific type called 1410, 710, also 410 probation. It is a specific type of probation given to first time drug offenders that if the probation is completed and it’s completed satisfactorily, it’s actually at the end of it considered a dismissal. So if you’re given two years of 1410 probation, if you complete the probation satisfactorily, at the end that case can be considered a dismissal. Even though it looks like probation and even though it might look from the case number like it’s a felony, it actually is a dismissal. That means that is also able to be expunged as long as the rest of the record is able to be expunged. So that takes care of whether things are a conviction or a non conviction.

Expungement- Waiting Periods

The thing also to look at for an expungement, though, is waiting periods. For dismissals for not-guilty – for things like that, those are pretty much able to be expunged immediately. You do of course have to look at the entire record as a whole. You expunge the entire record at one time. Some dismissals do require that you wait about 160 to 180 days. But for the most part, if it’s a not guilty, they’re able to be expunged right away. There are significant waiting periods for some of the supervisions and for the 1410 probation – that specific type of probation that I just mentioned. Generally, for supervisions, there’s a two year waiting period after the supervision ends. So, you have a year of supervision – when the supervision is terminated, you would then have to wait two years afterwards to expunge that record. There are certain types of supervisions that are specifically set aside that actually require a five year waiting period. Those are actually listed on expungement forms that are available at the clerk’s office. If you received a supervision for one of these specifically enumerated crimes – I know one of which is retail theft. That’s one of the most common. There’s actually a five year waiting period after the supervision ends. Also with the 1410 probation, there’s a five year waiting period for that after the probation ends. So, you could have a record that is eligible for expungement because there are no convictions but is still within the waiting period so you would still have to wait the entire time because in the expungement, you have to list every single case on the expungement forms in order to expunge it.

Expungement- Procedure

For the expungements there are petitions and orders. So you would have to fill out your petitions to expunge and also the orders. The expungement is all filed at a clerk’s office. If you’re in Chicago, you can file that at the Daley Center, Room 1006. You can also file it at 26th and California and the criminal courts building – the fifth floor is a clerk’s office – you can also file it there. There’s a cost for expungements – it’s a $60 fee to file it and then later on there’s a $40 fee from the Illinois State Police. It should noted that if someone is unable to pay for an expungement, if they’re indigent or if they don’t have a job at the time, there is a Petition to Sue or Defend as an Indigent Person which you can fill out, get approved by a Judge at either the Daley Center or 26th and California and that means that the expungement can be filed for free.

Sealing

Moving on to sealings. Sealing in Illinois is a very new law. The law regarding sealing was just passed in January, 2004. Sealing essentially extends a little bit the expungement law in order for people to be able seal very certain misdemeanor convictions that are on the record. As I said before, normally if you have any conviction, even if it’s a misdemeanor 40 years ago, you’re not eligible for an expungement. So this makes it so someone’s record might be eligible for sealing now with this new law. Certain misdemeanor convictions are able to be sealed. Sealing is different than expungement in that by sealing a record, you’re not actually taking the record out of the hands of the police department. Police personnel, law enforcement personnel, states attorneys, judges – they’re all still able to see a sealed record. Sealing simply means the record stays within the departments, able to be seen by certain people, but not able to be seen by the public. This means that employers and the general public are not able to see a sealed record. Sealing also has some significant waiting periods. There is actually a waiting period for cases which are dismissed, which is three years. There’s a waiting period of three years for most supervisions. There is a waiting period of four years after misdemeanor convictions. All of that is order to seal something, you have to go through that waiting period without having an intervening conviction for supervision within that time. I believe on the website there is a chart which goes through expungement and sealing and goes through the different waiting periods. It might help as I go through this to look at that. One thing to know also with sealing is that there are a lot of exceptions for what is able to be sealed. A misdemeanor conviction for battery is not able to be sealed. A misdemeanor conviction for assault is not able to be sealed. There are certain supervisions that are not able to be sealed. Those are listed on the page that’s in the website and also it is in the criminal court – the law regarding expungements and sealing. With sealing, again, there are Petitions and there are Orders. There are Petitions to Seal Arrests and a corresponding Order for those and Petitions to Seal Convictions with a corresponding Order for those. You would list all the arrest cases on the arrest petition and convictions on the conviction petition. With sealing, it’s not an all or nothing kind of thing like an expungement. With sealing, you can seal certain things while leaving other things on your record which means that because of a waiting period or because of other convictions that are not able to be sealed because of the law, it does not preclude you from filing a sealing on just a certain arrest or certain offenses that are on your record. When you go in to file one of these, with the sealing it is the same cost as with an expungement – it costs $60 to file it and then $40 later on for the Illinois State Police. With both expungement and sealing, these Petitions, once filed, have to be sent to the Illinois State Police, the arresting police agency, and normally the legal officer of the city which, if it’s City of Chicago, it goes to the counsel in Chicago and also goes to the Illinois State Police. There is a form at all the Clerk’s offices which tell the addresses for the places you need to send these to. You do have to make sure they get to all these places because that’s the only way they will know to clear off the record.

Executive Clemency

Moving on to executive clemency – if someone has a felony conviction, that means that they are not eligible in any way for an expungement. A felony conviction cannot be sealed. If someone has a felony conviction, anything that I just mentioned for filing purposes at the clerk’s office is not able to be taken care of. So if they have a felony conviction in Illinois, their only option for getting that removed from their record or taken off is an executive clemency with an expungement. In order to file for an executive clemency, it has to be done through the Illinois Prisoner Review Board – it’s in Springfield. This is writing a Petition asking the governor to pardon the crime. There are four hearings that are held every year by the Illinois Prisoner Review Board – two in Springfield, two in Chicago, about one every three months. The Petition gets sent to the governor and sent to the Illinois Review Board and they then decide who is able to get an executive clemency. If you apply for an executive clemency, if you fill out a Petition for one, I’d highly recommend getting the guidelines from the Illinois Prisoner Review Board. There are specific things they look for. You need to explain your past arrests and convictions for which you’re asking for executive clemency. Give a good description of yourself and your life, what jobs you’ve held, why you want to get an executive clemency -- and I think that’s very important – the Review Board needs to know why you’re looking for executive clemency. It also helps to have a certain number of years since your conviction so that you’re able to show that you have had a time where you haven’t been convicted or haven’t been involved in the justice system. I think that makes it hopefully a little easier for the Review Board to grant you the executive clemency. When you’re writing a Petition for Executive Clemency, you need to ask for executive clemency and an expungement. The reason is that if you’re granted an executive clemency from the review board, that does not take that record off from being able to be viewed by the public – being able to viewed by anyone else that’s able to go and look at records. It’s simply gives you essentially a certificate and a sheet of paper saying that you have been pardoned, but it does not take that from view of anyone else. What you can ask for when you apply for an executive clemency and a pardon is to ask for an expungement at the same time. And the review board and the governor can grant a pardon and leave to file an expungement. Which means that if you’re granted that, you then are able to go through the expungement process which I explained at the beginning even though you have a felony conviction, because your conviction would have been pardoned and then you were granted leave by the governor to file an expungement. That would be the way to take a felony record and hopefully be able to in the future expunge that. Executive clemency is a slow – it’s not a fast process. It’s not something that can be done within a short amount of time. The petition does take some time to write and also, because the review board gets quite a number of these applications and petitions throughout the year, it normally takes at least a year to receive an answer for this. So it’s not a quick fix. In fact, none of these that I’ve mentioned are actually extremely quick. In terms of an expungement or sealing, because they have to go through all the different departments of police – if it’s Chicago the Chicago Police Department, through the Clerk’s system – they normally take between 6 to 9 months to have your record either expunged or sealed. So just filing for one of these does not necessarily mean that your record right then has been cleared off. It does take some time to go through the different agencies.

Conclusion

That is the three ways that you can clear your record. Cabrini Green Legal Aid Clinic does handle expungements, sealings, and we do handle a certain number of executive clemencies. If you have questions, you can always contact the clinic – contact me, and I’d be happy to help you out if you have any questions about it.

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