Expunging or Sealing a Criminal Record in Illinois Not a Slam Dunk When Local Prosecutors Object

Ever since the Illinois sealing law was amended in 2017 -- extending relief to those who could not remove their criminal record unless they were pardoned – there’s been times when it’s felt like an empty promise.

If I anticipate the county prosecutor (State) will object to a request to seal or expunge, I routinely caution clients not to get their hopes up too high. When the State objects, the final decision often turns on factors beyond one’s control – like the county or court district where the petition was filed or what judge will rule on case.

What that means is petitioners, due to where they were arrested, will face different odds in getting their records expunged or sealed. In one county, for example, attorneys routinely withdraw petitions to expunge or seal because judge(s) in that county are openly hostile to granting such relief.  

Some Judges Refuse to Expunge Records Opposed by the State

Last year, I experienced a frustrating loss when I failed to convince a Cook County judge to expunge all of my client’s records.

My client had never been convicted of a crime but the judge refused to expunge all of his cases because the State objected. The State opposed expunging three of my client’s cases, even though he was found NOT GUILTY of the charges at trial.

The State’s contended that law enforcement needed access to these case records – apparently due to the nature of the charges.[1] At no point did the State infer that my client was not a law-abiding citizen. The judge agreed with the State’s flimsy argument and sealed the cases.

Finding Forgiveness for an Unforgettable Act

It is always a challenge to ask a judge to seal a record when the underlying facts involve the loss of life or serious injury to the victim.

Nearly nine years ago another client of mine shot and killed a man. At the time, he believed he was acting in self-defense. The judge who decided the case disagreed and found my client guilty of second-degree murder. My client was sentenced to 61/2 years in prison.

With his lengthy work history and lack of a prior criminal background, my client thought he could easily pick up the pieces of his life once released from prison. That did not happen. He went back to school and earned two degrees. Still, the job opportunities failed to materialize.

In 2022, I represented the client on his first petition to seal. As expected, the State objected to the petition. Although the judge found my client likeable and his accomplishments notable, she expressed concern that he’d only recently completed his sentence. She also said she couldn’t overlook the fact someone died. She denied his petition.

Viewing a Petitioner Through the Lens of their Crime Can Overshadow Evidence of Their Rehabilitation

Earlier this week, two years after my client’s first petition was denied, we returned to court to ask another judge to seal the record.

I submitted a mitigation packet, in which I detailed the coursework and college degrees he’d obtained since prison. I also summarized his post-release work history and the job offers that had been rescinded. For its part, the State raised the same arguments as before: a man was shot and killed, not enough time had passed since the crime occurred.

This time, however, the judge immediately zeroed in on the crux of the matter – that this was an “imperfect self-defense” case. She observed that my client could have been sentenced to up to 40 years in prison but received a much lighter sentence.[2] The judge noted my client’s various rehabilitative efforts. With little fanfare, she granted the request to seal. Her decision felt almost anticlimactic.

As I stood outside the courtroom chatting with my elated client, I suddenly found myself thinking about my previous client. I couldn’t help thinking had he the good fortune to appear before this judge, undoubtedly, all of his records would have been expunged.

Second Chance Opportunities Face Systemic Barriers

How do we reconcile the divergent outcomes between the two cases? We don’t. Both cases were heard in the same Cook County courtroom, albeit before different judges.

More than seven years since the sealing expansion, some Illinois judges remain hostile to the law and/or unaware of the state legislature’s decade-long commitment to increasing second chance opportunities.

But it’s not just judges who ignore the societal benefits of giving people a second chance. Every time state prosecutors object to an expungement or sealing request, second chance opportunities end up in the crosshairs.

Is it possible that part of the problem is a lack of training? We forget that the primary job of a county prosecutor is to try criminal cases. But when we ask that same person to review requests to expunge or seal, s/he is asked to put on a different “hat” without any additional training. In the absence of such training, some may end up believing that they’re being asked to second guess the past actions of their peers – which is not at issue unless the petitioner claims innocence.

Another possible problem is a lack of education. Social scientists who conduct empirical research on criminal behavior have long observed that the vast majority of people will age out of the system by their mid-to-late 20s. Maybe county prosecutors should be required to read the current literature on the underlying causes of criminal behavior and the risks of reoffending as part of their continuing legal education requirements.

When state prosecutors start focusing less on a person’s rap sheet and more on the factors predictive of future criminal activity, fewer objections will be warranted. 

[1] Two of the cases involved misdemeanor domestic battery charges. The other case was an attempt murder charge, for which my client was acquitted on self-defense grounds.

[2] The State had originally charged him with first-degree murder.