Sealing a Felony Conviction in Illinois? FYI: You Only Get One Bite at the Apple
Recently, for the first time I had to tell a prospective client that he couldn’t seal his felony conviction – and not because the offense he was convicted of was ineligible to seal. Rather, the individual (whom I’ll refer to as “Layton”) could not seal his conviction because he’d previously sealed two felony convictions on his record.
One and Done
Unlike misdemeanor offenses -- where there’s no limit on how often you can petition to seal -- there is a limit on how often you can seal a felony conviction in Illinois. The relevant provision of the expungement/sealing law provides:
A person may not have subsequent felony conviction records sealed as provided in this subsection … if he or she is convicted of any felony offense after the date of the sealing of prior felony convictions …. The court, may, upon conviction for a subsequent felony offense, order the unsealing of prior felony conviction records previously ordered sealed by the court. (Emphasis added.)
20 ILCS 2630/5.2(c)(4).
In 2017, when Illinois expanded its sealing eligibility guidelines – allowing nearly every felony offense to be sealed -- some wondered whether the above-cited restriction would stop individuals from sealing additional felony convictions that, prior to 2017, couldn’t be sealed.
Fortunately, the State’s Attorney never raised this objection to subsequent requests to seal felony convictions.
Briefly, I thought Layton might be able to seal his remaining felony conviction (previously ineligible to seal). Whether Layton could seal now hinged on when he’d petitioned to seal his other felony convictions. Layton said that he’d sealed his felony convictions after 2017. Had Layton sealed his felony convictions prior to 2017, he would have been able to petition to seal.
Can’t Seal Your Record? Apply for Clemency
For someone in Layton’s situation, there is still one remaining remedy: petition for clemency and permission to expunge the record.
While the waiting period to seal a criminal record is a modest three (3) years (running from the end of one’s sentence), clemency practitioners typically recommend that individuals wait much longer before applying for clemency. Unlike some state clemency laws, Illinois’s law contains no statutory waiting period to file.
With respect to at least one Illinois county -- Cook -- there are unwritten rules regarding when someone should file for clemency (pardon).
If you’ve been convicted of a crime of violence in Cook County, the earliest you should apply for clemency is ten (10) years from the end of your last criminal sentence. For non-violent crimes, you don’t have to wait that long.
Why should someone abide by these unwritten Cook County rules? Because petitioners don’t want the Cook County State’s Attorney’s office to file an objection to their clemency petition. Today, State’s objection = clemency denial.
Be Strategic Re: Sealing Multiple Felony Convictions
Now that most felony offenses are sealable, the odds of convincing a judge to seal a conviction often can feel insurmountable. That’s why there may be instances where it makes sense to hold off petitioning.
Given that you only get one bite at the apple, one has to be strategic about when to petition to seal multiple felony convictions. You don’t want some but not all of your felony convictions sealed.
In those cases where it’s likely the State is going to object a petitioner needs to be confident in their ability to sway a judge to grant their petition over the State’s objection. If you don’t believe you have a winnable argument today, then it’s best to hold off filing until you’re confident that you can disarm the State’s objection.