Why Didn’t the Judge Expunge My Criminal Record? Most Likely Reason: Local Prosecutor Objected

Recently I was talking to a downstate Illinois legal aid attorney about expungement/sealing practices in a county across the border from St. Louis.

I told her how some judges in the northern portion of the state routinely seal cases eligible to expunge when state prosecutors object to expunging the record. The attorney exclaimed: “Why would they do that?” It’s a question that I’ve been asking myself a lot lately.

Why Illinois Prosecutors Object to Petitions to Seal or Expunge

There are two reasons why a state prosecutor objects to a petition to expunge or seal: 1) statutory, or 2) public policy. 

A statutory objection is when, according to the applicable law, a person is not eligible to expunge or seal their record. A judge has no choice but deny the petition when the State objects on statutory grounds. 

Typical statutory objections: 1) the waiting period to seal/expunge has not run; 2) the offense is not eligible to seal (e.g., domestic battery, DUI); 3) petitioner is not eligible to expunge (was convicted of the crime); or 4) petitioner has a pending criminal case.

A “public policy” objection is a catch-all for any objection the State makes that is not statutory in nature. When a public policy objection is raised, the judge has discretion to grant or deny the requested relief.

Typical public policy objections: 1) a repeated offender of the same crime; 2) fails to complete their sentence successfully; or 3) owing to the nature of the offense (e.g., attempt murder, stalking).

Petitioners Face Uphill Battle to Seal/Expunge When Case “Facts” Take Center Stage

Despite the fact the expungement/sealing law lists a half dozen factors a judge may take into consideration, too often the “facts” of the case play an outsized role in the judge’s ruling. Factors like the petitioner’s age (when crime occurred), the passage of time, or the petitioner’s subsequent rehabilitation, get short shrift. 

Making matters worse, the “facts” the State cites typically come from the arrest report – a notoriously unreliable source. Given that more than 90% of defendants plead guilty in exchange for the certainty of a plea agreement, it is rare that all relevant case facts are unearthed. A recent case highlights this point.

I represented a woman seeking to seal a 30-year-old aggravated battery conviction. My client pled guilty to the crime. The State objected to her petition.

At the hearing, the State’s “factual” description was so fantastical that I could barely keep myself from shaking my head in disbelief. The victim’s statement led the police to arrest and charge two innocent people (my client’s two sisters) with serious felonies. Although there were numerous witnesses to the incident, the police didn’t bother to question them.

“Splitting the Baby”

Most of the time, I can predict when the State is going to raise a public policy objection to a petition to seal or expunge.

That said, it never ceases to frustrate me when the State objects to a petition to expunge. Why? Because some judges then balk at expunging the record. Instead, they offer to seal it instead -- a practice I refer to as “splitting the baby.”

Recently, I represented an individual who had no convictions on his record and was anxious to expunge his record so he could apply for work without fear of rejection.

Because my client had been charged and acquitted following a bench trial of domestic battery (twice) and aggravated battery/discharge of a firearm charges, I expected the State to make a public policy objection (it did).

What surprised and disappointed me was the State’s decision to proceed with its objection even after I provided a mitigation packet. The packet contained ample evidence calling into question the credibility of the two alleged victims.

Where Someone is Arrested Matters

No one likes to tell a client who is eligible to expunge that s/he shouldn’t be surprised if a judge seals their record instead. In certain counties, this scenario is a commonplace occurrence.

This highlights another truism about the state’s criminal records relief law. Not every county in Illinois supports the law. In fact, some counties are openly hostile to it. Thus, where someone has been arrested is sometimes the most important factor to the petition’s outcome.  

A Problem in Search of a Solution

Sometimes I wonder how members of the Illinois General Assembly would react if they knew how often state prosecutors and judges work hand-in-hand to deny petitioners record relief.  

There is no quick fix to the issues highlighted here. Still, I’m heartened each time I convince the State to refrain from objecting or see a judge to give my client a second chance. I take none of it for granted.

I look forward to the day when a critical mass of prosecutors and judges recognize that all communities stand to benefit when its criminal justice-involved members are given the tools to become the best version of themselves.