If you could expunge or seal one person’s criminal record, whose would it be: One who was prostituting himself 10 yards away from an elementary school or another who cheated on his spouse?
It may be a moral dilemma for some, but Illinois law is clear: Only the prostitute can get his or her record expunged. On the other hand, adultery, which is actually a misdemeanor, cannot be expunged; neither can fornication. The Illinois sealing and expungement law, while offering a second chance in life to thousands, is riddled with inconsistencies.
Consider this: Selling 30 grams of marijuana is sealable. Sexual conduct in a public place–”a car in a parking lot, for instance–”is not. Buying less than 15 grams of cocaine is sealable. Emailing a picture of a nude Playboy bunny to a 15- year-old is not.
“It makes absolutely no sense that fornication is not a sealable offense where prostitution is, because it leads any reasonable person to think that you’re far better off selling sex than you are giving it away,” said Chris Fischer, staff attorney in the expungement program at the Office of the State Appellate Defender. “But it’s just one of the anomalies in the law, and there are a number of them. Anybody who works in the expungement business has been rolling their eyes at that provision for years.”
The majority of crimes are unsealable. All felonies except prostitution and minor drug offenses–”both considered class-four felonies–”aren’t eligible for sealing or expungement; more than 87 percent of all felonies are more serious than class-four offenses.
Most unsealable misdemeanors are violent crimes, like aggravated assault, domestic battery, crimes against animals and sex crimes. But many might not believe that adultery and fornication, for instance, should be considered crimes at all.
These crimes are rarely charged–” they made up just 1.4 percent of the state’s prison population on June 30, 2007, the latest date for which the data are available from the Illinois Department of Corrections. But when they are charged, the consequences are just as devastating to the ex-offender.
Fischer had a client who lost his job and couldn’t find another after serving his sentence for public indecency. Fischer suspects that a prank led to his legal problems, but anything from relieving his bladder in an alley to showing too much skin in a car could have landed him in court, she said. Initially, a prosecutor argued he didn’t qualify for expungement. The client had no other criminal history and, on those grounds, eventually convinced his judge to expunge it. But he’d already gone without a source of income for more than seven months.
Fischer said the impact of unsealable crimes can be enormous. “Your sentence is never complete,” she said. “You are marginalized. We have, in our zeal –¦ to create a crimeless society, created a permanent underclass.”
A group of attorneys is helping draft a bill that would increase the list of expungeable crimes, but they’re not sure which crimes they will put on the list. The new bill will be just the latest chapter in the long history of Illinois sealing and expungement legislation.
For some, the very first version of the Illinois expungement statute, adopted in 1931, would actually be better than today’s edition. Under that law, any individual acquitted of a crime would automatically get his or her record expunged; now, an arrest without conviction requires application for expungement–” a fact many don’t realize. In 1991, supervision sentences became eligible for expungement.
The advocates who proposed liberalizing the law in 2004 wanted to extend expungement to as many ex-offenders as possible, with the sealing of records a possibility for the first time. But the politicians they were lobbying didn’t want to appear soft on crime.
“Nobody wanted a felon to get a job, beat someone up there, then point at a legislator, and a future opponent could beat them over the head saying, –˜Look what you did,'” said former Cook County State’s Attorney Dick Devine.
The same was true in 2005, when the law underwent another liberalization. “The hardest thing was getting the votes,” said the Rev. Sharod Gordon, who describes himself as “convener” of the Developing Justice Coalition, one of the original supporters of the 2005 amendment. “In a lot of communities outside of Chicago, they don’t like that stuff. It’s all deemed as soft on crime.”
Short on political capital, Gordon decided to focus on sealing the most common offenses in his community–” low-level drug felonies. They made up 55 percent of class-four felonies in fiscal year 2004, according to the Illinois Criminal Justice Information Authority’s 2005 Research Bulletin. The corrections department’s report states that drug offenders of all levels represented 24 percent of the state’s total prison population on June 30, 2007. Sealing those crimes would help people find jobs and stay out of prison, Gordon reasoned. The Chicago Coalition for the Homeless worked to include prostitution, which is closely related to the drug trade, in the proposed bill for expungement.
But the coalition’s efforts were not focused on sealing or expunging adultery, fornication, marriage of a bigamist, public indecency and obscenity, all listed under article 11 of the criminal code. “For one, our communities aren’t concerned about that,” Gordon said. “Our community is concerned about how to get the population who is affected by these bills–”which is largely drug offenders. We weren’t down there to fight for human rights legislation. We were down there trying to represent our community.”
Nor did any politicians stand up for offenders of article 11 crimes. “I suspect that the Chapter 11 violations are prohibited from being sealed because I don’t think there’s a politician worthy of a name that wants to stand up in the general assembly and say, –˜I’m actually for adultery,'” Fischer said.
A third round of liberalization looms. It might finally include article 11. It might not.
One Chicago advocate, the Rev. Al Sampson, a civil rights leader who worked with Dr. Martin Luther King Jr. in Atlanta, hopes it does. Sampson helped found the movement to expand the sealing and expungement of records in Illinois in the mid-1990s.
“Those are really minor, minor infractions that keep blocking our people from access to jobs and professions as well as boards and agencies,” Sampson said. “Those are the subtleties of the strangeness of these different –¦ blocks, so that people don’t get access to the furtherance of their career.”