Expungement reconsidered

Thomas Bruno’s commentary regarding the limitations of the expungement process in Illinois gives light to several important issues in this somewhat murky area of the law. While I share his frustration with the availability of certain “expunged” information through the Internet or other sources, and I certainly appreciate his kind words with regard to our office’s expungement materials, I think the article fails to consider the significant benefits of an expungement (or, alternatively, the sealing) of a qualifying criminal record.

What is it good for? In short, for the legal protections that arise from a criminal record being expunged or sealed. Such records are not available to employers through the official channels and, perhaps more importantly, it is illegal under the Illinois Human Rights Act for an employer to consider any criminal history information which has been ordered expunged or sealed. (775 ILCS 5/2-103) Further, under Section 12 of the Criminal Identification Act, an employer who asks a prospective employee about past criminal history must include on the application “specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest. Employers may not ask if an applicant has had records expunged or sealed.” (20 ILCS 2630/12(a))

Should an employer discover expunged or sealed criminal history information on the internet and use that information against a prospective or current employee, that employer runs the risk of liability under the Human Rights Act. While the system is far from perfect, and such a case can be hard to successfully pursue against an employer, I think it is unlikely that employers are rampantly ignoring the dictates of the HRA. In my experience, people who have been confronted with this problem have often successfully gained employment by providing a copy of the court’s order granting expungement or sealing to the employer.

Unfortunately, it is unquestionably true that people are not always given that option. The HRA notwithstanding, there are likely to be situations in which the employer simply doesn’t contact the applicant again after finding the “expunged” information online, thereby depriving the potential employee of the opportunity to explain the situation. Mr. Bruno’s suggestions for thoroughly explaining the limitations of a potential expungement or sealing to criminal defendants are therefore well-taken.

Expungement and sealing are imperfect remedies, but they can be, and often are, the difference in an individual obtaining housing or employment. Additionally, many employers take background checks very seriously and use the much more accurate Illinois State Police fingerprint checks as their preferred method. In these cases, the expunged or sealed information will not be returned to the employer, and the prospective candidate will be in a much better position than if the record had not been expunged or sealed by the court.

Mr. Bruno’s commentary makes some excellent points regarding the potential availability of expunged or sealed criminal history information through private “background check” companies, and his advice regarding how to advise clients on these issues is certainly important. The piece is an excellent discussion of an issue about which not many are fully (or even at all) aware. However, while there are indeed potential avenues for someone to discover expunged or sealed information in cyberspace, there are in fact many potential benefits to the client who is lucky enough to qualify for an expungement or sealing of his or her criminal history. ■


Joshua D. Carter is Staff Attorney, Expungement Division, Office of the State Appellate Defender.

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May 2010Volume 36Number 4PDF icon PDF version (for best printing)