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Sealing: Adult Conviction Records

http://www.dreamstime.com/royalty-free-stock-image-hand-law-book-gavel-image22373166While it is now possible to expunge arrest records, even if you have been convicted of a crime, conviction records are still only subject to sealing.

Illinois Expands List of Sealable Felony and Misdemeanor Convictions

On August 24, 2017, Governor Rauner signed House Bill 2373 into law — effective immediately — the largest expansion of sealable convictions. Prior to the bill’s signing, only eight types of felony offenses could be sealed: prostitution, possession of a controlled substance, possession of a controlled substance with intent to deliver or manufacture, retail theft, theft, deceptive practices, forgery, and possession of burglary tools.

Now, drug offenses, regardless of the felony class (X, 1, 2, 3, 4) are eligible for sealing. For the first time, certain forcible felony offenses can be sealed: murder, robbery, residential burglary, burglary, aggravated battery, to name a few. Other newly sealable felony or misdemeanor offenses include: misuse of credit card, obstruction of justice, perjury, and public indecency. Because so many offenses can now be sealed, it is actually easier to list what crimes cannot be sealed.

Adult criminal convictions that remain ineligible for sealing:

  • Any domestic violence offense (includes those sentenced to supervision)
  • Any DUI (alcohol or drug-related) driving offense (includes those sentenced to supervision)
  • Offenses subject to current sex offender registration requirements
  • Offenses subject to current registration requirements under the Arsonist Registration Act
  • Offenses subject to current registration requirements under the Violent Offender Against Youth Registration Act
  • Offenses involving cruelty to animals

The Difference Between Sealing and Expunging a Criminal Record

The primary difference between sealing and expunging a criminal record is that a sealed record remains in the Illinois State Police’s (ISP) criminal database, meaning that the information remains available to law enforcement and state prosecutors. Additionally, under state law, certain employers (e.g., school districts) are permitted to see some sealed felony conviction records. As with expungement, the judge has sole discretion to grant or deny a petition to seal.

An expunged record, on the other hand, is deleted from the ISP’s criminal database and presumably no longer exists. While expungement and sealing differ, they share one important benefit. Once sealed, a criminal record can no longer be viewed by the public, with one possible qualification.

In the age of the Internet, if a news outlet publishes a story following your arrest, petitioning to  expunge the arrest and court records will not remove that news story from the public domain. News sources are under no legal obligation to delete a story about a criminal matter that is subsequently expunged or sealed, provided that the original story contained accurate information.  Some people have sued news outlets to remove such information. These lawsuits largely have not been successful.

The ease in which someone can google your name can upend one of the other benefits Illinois residents receive when they seal a criminal conviction. Under the Illinois Human Rights Act, once a conviction has been sealed, you are legally permitted to say that you’ve never been convicted of a crime, assuming all your convictions have been sealed.

(See Background checks – public records search.)

The Demise of the Certificate of Eligibility for Sealing

In view of the newly expanded sealing rules, there is little reason anyone would need to apply for a Certificate of Eligibility for Sealing (CES).

In 2014, the Illinois legislative indirectly expanded the list of eligible felony offenses when it created the CES. The CES gives someone the opportunity to seal an otherwise unsealable non-violent class 3 and class 4 felony conviction. The Illinois Prisoner Review Board (PRB) was given the authority to issue these certificates.

Although it was initially thought the CES would reduce the number of people seeking clemency from the governor — which at one time was as high as 800 a year — only a handful of people applied for a CES. Given the certificate’s restrictions — granted on a one-case, one-time, per person basis, and unavailable to anyone convicted of a crime of violence, gun offense, or DUI — this remedy’s usefulness expired the day Governor Rauner signed HB 2373 into law.