Criminal Identification Act revised, more felonies can be sealed and expunged

By Brittney Nadler

Having a criminal record serves as a constant roadblock for those seeking professional pursuits, such as employment or applying to college. But as of Jan. 1, some of those convictions may be eligible to be sealed or expunged, said John Roska, a lawyer with Land of Lincoln Legal Assistance Foundation.

Five new Class 3 felonies and five new Class 4 felonies can now be hidden or removed from a person’s criminal record after a revision to the Criminal Identification Act. These felonies include a Class 4 conviction for possession of burglary tools, a Class 3 felony conviction for possession with intent to manufacture or deliver a controlled substance, theft, retail theft, deceptive practices and forgery, Roska said. 

Expunging a record is the most extreme form of clearing a conviction because the eligible felony is physically destroyed, Roska said. Expunged records can’t be seen by anybody, including local police, state police and state’s attorneys.

Sealing a record will hide it from the general public, but the record is still in the police database and can be viewed by law enforcement and some government agencies, Roska said. Private employers can’t see sealed records, and that information doesn’t have to be revealed. 

“Expunging and sealing are statutory procedures,” he said. “If you fit into the categories, you qualify for expungement or sealing. It’s not up to somebody to say yes or no — if you fit into the category, you get it.”

To qualify, the crime has to fit certain criteria as outlined on the Illinois State Appellate Defender’s website, such as when it occurred and what the offender’s probation status is.

“It’s hard to make sense of,” Roska said. “Figuring out if someone qualifies for expunging, or in particular, sealing, can be really exasperating to figure out if it was this particular offense and if it was this particular sentence in that particular offense. And all of these have to match up precisely to qualify for it.”

To file a petition for sealing or expunging, it must be filed in the criminal case after an allotted amount of time specific to the offense and time period in the county the arrest took place. For example, someone who was placed on First Offender drug probation and completed it must wait five years after that time to file, according to the Appellate Defender website.

A filing fee plus a $60 fee for the Illinois State Police is required. In addition, some local law enforcement agencies may charge a processing fee, according to the Appellate Defender website. Fee waivers are available for those who can’t afford to pay the fee.

After it is filed, the petition is reviewed by four agencies: the agency that arrested the offender, a lawyer, the state’s attorney who prosecuted the offender and the state police that have the record, Roska said. 

The agencies have 60 days to object. If no one does, the record is sealed or expunged. If an objection is made, the petition is sent to a judge to decide. 

“They basically get a chance to review it and to say, ‘Yes, we agree it fits the category’ or, ‘No, we disagree, and we don’t think it fits the category,’” Roska said. “The reason why they do that is because some of these people file for anything. You could file to seal a murder conviction, which clearly doesn’t fit into the category.”

Objections can be withdrawn in certain circumstances. In one instance, Roska’s client hadn’t paid a fine they thought they had, which led to the state’s attorney objecting. After the balance was paid, the objection was withdrawn, he said.

After sealing or expunging a record, that information is not legally required to be revealed, which can make it difficult for potential employers or law enforcement to gain insight on someone’s past. 

“I don’t agree with this law because I feel like if someone does something wrong in the community, it’s only fair that employers and people around them know what their past is like,” said Jamie Elekman, freshman in ACES.

Obtaining a clean record can deter police investigations, said Urbana Lt. Bryant Seraphin, commander of the Criminal Investigations Division.

“The more conviction information we have to paint a better historical picture of a particular person, the better,” Seraphin said. “And sometimes in police investigations, information can determine if a person is a good suspect or not. Sometimes more information is helpful because hey, historically they’ve done this, they said the same thing happened before or back three years ago this happened, so we can draw a parallel and make an inference based on that information.”

Brittney can be reached at [email protected]