Expungement. What is it good for? (with apologies to Edwin Starr)

Section 5.2 of the Criminal Identification Act (20 ILCS 2630/5.2) allows certain arrests, supervisions and convictions to be either expunged or sealed. But what good does this do?

Hardly a day goes by anymore in my Central Illinois criminal defense practice that I don’t receive a telephone call from a former or potential client asking me about expungement or sealing a case. No doubt there are many lawyers who have carved out a part of their practice or even created a niche practice centered on shepherding an expungement case through the labyrinth of paperwork and client questions. I realized long ago I could not profitably do so.

The expungement client presents with many questions. After spending a significant amount of time with a typical client on the phone in a large portion of cases the lawyer is faced with advising the client or potential client that the remedy of expungement or sealing is not available to them. Clients typically then want to know why and how their criminal history will adversely affect them in school, employment and many other aspects of life.

It’s at this point that I generally refer the client to the wonderful resources available on the Illinois State Appellate Defender Web site (http://www.state.il.us/defender/) and to the State Appellate Defender “instruction guide,” available as a 23 page PDF document. In fact, for e-mail inquiries (which are becoming more common in my practice) I keep the PDF on my computer and find myself simply sending it off to a client with a note that I don’t handle this type of work.

Why would any self-respecting capitalist attorney want to turn away a segment of the public seeking to retain his services? In my practice it’s largely because sorting the wheat from the chaff is not economically feasible. I dread the inevitable disappointment that comes when the client realizes that expungement in the year 2010 is a virtually meaningless gesture.

Try this experiment: Type the phrase “background check” into your Google search bar. Your Web browser comes alive with hundreds of private sector Web sites located around the world that will gladly provide a compendium of everything that ever appeared on the Internet in exchange for your modest fee. In the modern era this is how employers frequently vet potential employees.

None of these private sector purveyors of information are under any obligation to expunge my clients’ “transgressions” from their database. In fact, the private sellers of Internet information pride themselves on having a robust product and it is contrary to their pecuniary interests to delete anything regardless of whether the authorities at the courthouse want to pretend it never happened.

This realization, in turn, has caused me to modify the remarks I make when I explain to a criminal defendant what the future holds should he or she accept the State’s offer of court supervision, for instance. While I very well may explain to them the procedures currently available for expunging or sealing records in the future I take the additional time to point out to them that no one is going to order Google to expunge a newspaper article about my client’s arrest nor will any order entered in Illinois likely be persuasive for a content purveyor in Moldavia to erase the records they offer for sale.

In yesterday’s world where the official government agencies were the only reliable source of information about one’s criminal history a court order directing them to destroy all records was meaningful. In the modern world, however, the public has long since learned that if they want to obtain these records it is much easier to enter their credit card number at three in the morning while sitting in their underwear than it is to get in their car and go to the courthouse or police station to check a prospective employee’s background.

I would never suggest that a client with deep enough pockets who wants to have the official records destroyed should refrain from so doing. Lawyers owe it to their clients to suggest why this may not necessarily mean that a future employer, landlord or father-in-law will not figure out that at some time they were charged and acquitted or charged and placed on court supervision. ■


Thomas A. Bruno is a member of the Human Rights Section Council and practices in Urbana.

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