How a Dupage County IL Judge Helped Nullify A 2011 Amendment to Expungement/Sealing Law
Question:
Did a recent Illinois appeals court decison just change the waiting to expunge a retail theft supervision court record from two to five years?
A recent Illinois appeals court decision, People v. Jenkins, held that the waiting period to expunge a retail theft supervision court record is five years, ignoring an amendment to the expungement rules that has been in effect since 2012.
Based on this ruling, someone petitioning to expunge such a record will now have to wait five years to a file if their criminal case was heard in Bureau, Dupage, Grundy, Iroquois, KanKanee, LaSalle, and Will County.
The appeals court ruling will not impact the longstanding practice of granting these requests to expunge in two years in the remaining Illinois (95) counties.
To undue the appeal court's ruling, the Illinois General Assembly should eliminate the contradictory language in the state's Unified Code of Corrections that appears to have been overlooked when the expungement law was amended in 2011.
Anyone directly impacted by this ruling should contact their state representative and urge him or her to take legislative action in order to halt the adverse consequences of the ruling.
Last month, the Illinois Appellate Court for the Third District[1] affirmed a Dupage County circuit judge’s court order holding that the waiting period to expunge a retail theft supervision case is five years. The appellate court’s decision runs contrary to the prevailing view: that the waiting period to expunge was amended by the Illinois General Assembly from five to two years more than a decade ago.
Outlier, Savant or Simply Mistaken?
For most criminal records relief attorneys, the ruling in People v. Jenkins, 2026 IL App (3d) 250306 (July 21, 2026), came out of left field. The ruling, however, did not come as a surprise to those who’ve appeared before Judge Robert A. Miller. For years, Judge Miller has taken the contrarian view that the waiting period to expunge a retail theft supervision court record is five years.
A legal aid organization that routinely handles expungement/sealing requests in Dupage County contemplated appealing one of Judge Miller’s expungement denials. It decided against filing an appeal out of an abundance of caution that a ruling like Jenkins could make matters worse, not better.
It is doubtful the petitioner-appellant in Jenkins was aware of the stakes in appealing. Throughout the process, she represented herself pro se. Despite the fact the State notably did not object to the petitioner-appellant’s request to expunge, Judge Miller objected because she did not satisfy the five-year waiting.
The Expungement Rules
The state’s expungement/sealing rules are found in the Illinois Criminal Identification Act, 20 ILCS 2630/5.2 et seq. The section that addresses when someone is eligible to expunge a criminal record is set forth in 20 ILCS 2630/5.2(b)(2)(A-C):
A. No waiting period where no criminal charges are ever filed, if charges are dismissed prior to trial or following acquittal (at trial), or conviction is vacated on appeal.
B. Following successful completion of supervision, depending on the offense, there is either a five-year or two-year waiting period.[2]
C. Following successful completion of qualified probation, there is a five-year waiting period to expunge.
In 2009, when I first started doing expungement/sealing work at an expungement help desk, the waiting to expunge a retail theft supervision record was five years. 2630/5.2(b)(2)(B)(i), along with domestic battery and criminal sexual abuse. Any offense not listed in subsection (B)(i) is eligible to expunge after two years. 2630/5.2(b)(2)(B)(ii).
I distinctly remember when the waiting period changed because it was the first of several amendments to expand the expungement/sealing law’s coverage. The 2011 amendment went into effect at the beginning 2012. See Public Act 96-1532.[3]
Notably, deleting retail theft from the list of crimes subject to the five-year expungement waiting period was the only action taken by the legislature in P.A. 96-1532. Thus, it would be nonsensical to conclude that the legislature did not intend to authorize the expungement of retail theft supervision records after two years.
Prior to the ruling in Jenkins, I’d never encountered a state prosecutor or a judge that took the contrarian view that retail theft supervision records are only expungeable after five years.
Making Sense of the Jenkins Court’s Holding
So how did a Dupage County judge and the state appellate court reach this contrarian view? By its reliance on Chapter V of the Unified Code of Corrections, 730 ILCS 5/5-6-3.1 (Incidents and conditions of supervision).
A review of the briefs filed by the parties in Jenkins is instructive. With the petitioner-appellant continuing to represent herself pro se, the only party in a position to address the expungement/sealing law’s relevant legislative history was the Dupage County prosecutor’s office (who defended Judge Miller’s ruling).
The Dupage County prosecutor’s office provided no information pertaining to the 2011 amendment in its appellate court brief – a glaring omission given its central role in the dispute over the proper waiting period. Instead, the only legislative history the county prosecutor addressed was noting that the wording in section 730 ILCS 5-6-3.1(f) had remained unchanged since it was added in 1992. See People v. Jenkins (No. 3-25-0306) Brief and Argument of Plaintiff-Appellee (hereafter People’s Brief) at 6.
By not acknowledging the legislature’s 2011 amendment, the county prosecutor selectively decided for the appeals court what legislative history was relevant. It did so confident that the petitioner-appellant (not being an attorney) would not cry foul and call out the prosecutor’s failure to discuss P.A. 96-1532. All the while, the county prosecutor paid lip service to the principle that the two sections should be considered “together to achieve a harmonious effect.” See People’s Brief at 4.
Admittedly, before reading Jenkins, I was not aware of the conflicting text. I doubt I was the only criminal records relief practitioner unaware.
It is undisputed that the state’s expungement/sealing pertinent rules reside in the Criminal Identification Act. It is also undisputed that section 5-6-3.1(f) addresses expunging supervision court records. What is not disputed is that “expungement” is not included in Chapter V’s general definition section (where section 5-6-3.1(f) is located).
Thus, I theorize that when section 2630/5.2(b)(B)(i) was amended in 2011, the bill sponsors were not alerted to the existence of duplicative language in Chapter V, which explains why that language was not also amended.
An Urgent Call to Action
If the Jenkins decision is left to stand unchallenged, it will effectively nullify P.A. 96-1532.
Because the Third District’s ruling only applies to its seven-county jurisdiction. In other words, petitioners with applicable cases in those counties will be subject to a five-year waiting period to expunge a retail theft supervision court record. Petitioners with cases in the remaining 95 counties will be eligible to expunge the same record in two years.
To avoid this unequal application of state law, I urge the Illinois legislature to retroactively amend section 5-6-3.1(f) so that it aligns with the language in section 2630/5.2(b)(B)(i) and put to rest any lingering confusion regarding the actions taken by the General Assembly in P.A. 96-1532.
[1] The Third District appellate court division hears cases from the following counties: Bureau, Dupage, Grundy, Iroquois, Kankakee, LaSalle and Will.
[2] Supervision is one of a handful of “deferred prosecution” sentences typically used in cases where the defendant is charged with a misdemeanor offense and has little or no previous criminal history. A supervision sentence does not result in a record of a conviction as long as the sentence is completed successfully.
[3] The legislation, House Bill 6460, was signed into law by then Gov. Pat Quinn on February 23, 2011. During the same legislative (2009-2010) session, the legislature completely rewrote the expungement/sealing law. See P.A. 96-0409 (eff. Jan. 1, 2010).