Is my case automatically expunged if I win a pardon? Well, one should know that automatically, there is no right to expungement in Illinois after a pardon. Imagine, actually jumping through all the hoops to actually win a pardon, only to lose an expungement. That is exactly what can happen when we realize that pardons and expungements are two different legal mechanisms on independent tracks.
In podcast Episode 026, of the Criminal Nuggets podcast I discuss the case of People Laguna, 2014 IL APP (2d) 131145 (8/22/2014).
Defendant was convicted of unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1)), aggravated fleeing or attempting to elude a police officer, and aggravated driving under the influence.
Some of what he actually did when arrested was –
- Stole a Car
- Drove Away From Police
- Endangered Citizens
- Crashed & Blew Up the Car
- On Drugs from Partying
Yet, defendant actually wins a gubernatorial pardon “With Order Permitting Expungement.” But in Illinois there is …
No Right to Expungement in Illinois After a Pardon
The power of the Governor to grant a pardon is found in the Illinois Constitution. It provides that –
“[t]he Governor may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper. The manner of applying therefore [sic] may be regulated by law.”
Expungement in Illinois
“The power to grant or deny a petition for expungement is found in statutes created by the legislature.” People v. Howard, 233 Ill. 2d 213, 217 (2009).
A person who has been pardoned may file a petition for expungement.
However, “a gubernatorial pardon alone does not entitle a petitioner to expungement.”
The use of the word “permitting” in a pardon implicitly acknowledges that a court has the power to grant or deny an expungement in Illinois. Id. at 222.
Actually, the Illinois Code on expungement and sealing says that a person who is
…granted a pardon by the Governor which specifically authorizes expungement…[may petition the circuit court for an] order entered expunging the record of arrest from the official records of the arresting authority and order that the records of the circuit court clerk and the Department be sealed until further order of the court upon good cause shown or as otherwise provided herein…
As always, it is a balancing test.
Illinois cases involving expungement set out a list of factors to be considered by the trial court when deciding the matter. These include:
1. the strength of the State’s case against the petitioner
2. the State’s reasons for wishing to retain the records
3. the petitioner’s age, criminal record and employment history
4. the length of time between the arrest and the expungement petition
5. and the adverse consequences the petitioner may suffer if expungement is not granted
See Chesler v. People, 309 Ill. App. 3d 145, 151 (1999).
These factors must be balanced. The list is not exhaustive. These factors have been codified in 20 ILCS 2630/5.2(d)(7).
Defendant won the pardon but lost the expungement.
Apparently, for Defendant it was always about the expungement because he was trying to avoid negative immigration consequences.
The court looked at the seriousness of the offense of which he was convicted. The court noted that Defendant did some pretty serious stuff. He not only endangered citizens but also put the lives of law enforcement and emergency responders at risk.
His criminal history also did not help him. Some of his past included:
- Criminal Trespass to a Motor Vehicle
- Unlawful Possession of a Controlled Substance
Defendant did put a good fight at the expungement hearing. He had numerous character witness including an
- Immigration official
- Drug Treatment Provider
- Friends and Family
…all testify to his otherwise “good citizenship”.
But it was not enough.
The court ultimately stated that it considered the mitigating evidence but found that it was outweighed by the seriousness of the offenses and the public’s compelling interest in maintaining the records.
Seriously though, how did he ever win the pardon?