Want Your Record Cleared After Exoneration? You’ll Have to Pay for It.

For people in Illinois who have been wrongfully arrested, convicted, and incarcerated, the battle to reclaim their lives doesn’t stop once they’ve been exonerated. Even after they’ve been released from jail or prison, another obstacle can block their way: the fees required to clear a criminal record.

The fees vary by county, from $90 in some to $232 in others. For someone recently released from prison—especially those who have been incarcerated for years, or even decades—coming up with that much spare cash can be difficult.

A new bill seeks to make life easier for exonerated defendants by removing that burden. Introduced by state Rep. Maurice West, the legislation would eliminate all fees associated with the expungement of criminal records following a wrongful arrest, conviction, or incarceration. “It’s just the right thing to do,” West said.

The fee-free expungement would also be available to people who were arrested, but charges were never filed or are later dropped, casting a wide net of people who would benefit from the policy. Estimates show that around 17% of the more than 70,000 people booked into Chicago’s Cook County jail every year are released when their cases get dropped or they are found not guilty. 

The benefit outlined in the bill would also apply to cases that are overturned or vacated, unlike some other states where defendants have to prove themselves “factually innocent” before their records can be expunged.

West is hopeful that the legislation will pass with near-universal support because the proposal is merely an expansion of a pilot—for the past two years, the state has run a fee waiver program in Cook County—which is where Chicago is located—to test the waters and a Senate version of the bill passed unanimously in 2017. “My constituents understand the barriers people face with fees like this,” West said. “It’s time to fight to make this right for the whole state.”

Illinois Exonerations

Over 300 people have been exonerated for wrongful incarceration in Illinois since 1989, according to the National Registry of Exonerations. The state led the nation in exonerations in 2018, with 49 people released from prison—although 31 of those convictions were vacated in association with a single case of a corrupt cop who pleaded guilty in 2013 to charges related to framing residents of a Chicago housing project for various drug crimes. Even without those, though, Illinois still beat out the next closest states, Texas and New York, which each only had 16 overturned convictions. 

Illinois also led the nation in 2019, with 28 overturned convictions.

Part of the reason Illinois has maintained its status as the state with the most wrongful conviction exonerations has to do with Cook County. The county has a large volume of criminal defendants and a history of high profile law enforcement scandals, meaning there’s a wider pool of convictions that might be overturned. But Cook County defendants also have more resources than people in similar situations in other parts of the country—a number of local law schools run innocence projects with a track record of successful exonerations, and the state attorney’s office has a dedicated “Conviction Integrity Unit” that reviews suspicious cases.

Across the country, CIUs in 16 counties identified 58 wrongful convictions in 2018, with over half of those coming from Cook County. A 2019 report from the National Registry of Exonerations lauded the office’s work, but qualified that they weren’t working alone. “Cook County’s CIU was involved in … far more [exonerations] than any other office,” the report stated. “Its productivity is strong evidence of a robust conviction review process and demonstrates commitment to remedying errors. But …. although each case required reinvestigation … much of the work was done by the [the University of Chicago’s] Exoneration Project and other Chicago attorneys representing the exonerees.”

Expungement Isn’t Easy in Most States

Sealing a criminal record after an overturned conviction isn’t an easy process in most states. It can take years of appeals, petitions for pardon from the governor, and thousands of dollars in legal fees. Defendants may have to appear in court to prove their “factual innocence,” an additional step beyond the requirement to show that charges have been dismissed or a conviction was overturned. 

At least 14 states and the District of Columbia have specific expungement statutes for people who have been wrongfully convicted, but each one is crafted differently. In Missouri, Ohio, and Wyoming, for example, expungements of wrongful convictions are only allowed if there is a DNA-based exoneration. New York, by contrast, makes the application process much easier and following expungement, the law stipulates that law enforcement must destroy all photographs, fingerprints, and DNA samples associated with the case.

Some states that have passed “clean slate” legislation designed to make it easier for people to clear their criminal records have also included provisions that make expungement automatic for those whose cases have been dismissed. But not every state has seen success in this endeavor—in Pennsylvania, the first state to actually pass clean slate legislation, one state lawmaker has repeatedly introduced the same bill for over a decade that would automatically expunge the records of people who have been exonerated. He introduced the bill again this legislative session, where it has sat in committee for nearly a year.

Because the process varies widely, it isn’t known how many people whose convictions have been tossed or were exonerated still have criminal records. A 2014 paper published in the Journal of Criminal Law and Criminology tracked 118 cases in Illinois, Florida, New York, and Texas, and found that 32% of people did not have their records expunged, even though some exonerations occurred more than a decade earlier. The researchers found that a criminal record precluded some people from housing and employment opportunities. 

“For the roughly one-third of exonerees whose offenses continue to appear on their criminal records, the wrongful conviction serves as a permanent, undeserved stigma that impedes their successful reintegration into society,” wrote researchers Evan Mandery and Amy Shlosberg. “Even in the best case, it is difficult to move beyond a prison sentence. Our research suggests that for exonerees whose records have not been expunged, it is approximately twice as hard.”

Cost of Expungement Varies Wildly

The fees associated with expungement in Illinois are relatively middle-of-the-road compared with other states. On the low end, Maryland only asks for a $30 fee during expungement filings. On the high end, Louisiana charges $550 for expungement (but they do allow people to apply for a fee waiver in cases where the charges have been dismissed). 

Fees tend to be highest in places where the budget of the criminal justice system is built on their backs. Louisiana is one such example—of the $550 charged for expungement, $250 goes to the state police, $200 goes to the court clerk, $50 goes to the parish district attorney, and $50 goes to the parish sheriff.

The bill in Illinois hasn’t faced pushback from law enforcement (in fact, Cook County Sheriff Tom Dart called expungement fees “a criminal justice tax directed at the poor and vulnerable in our society”) but West said that other lawmakers have expressed concerns about the loss of revenue. “They think it’s another way our court system will lose money,” West said. “But it’s wrong for us to gain revenue off the backs of those who are wrongfully arrested and jailed. We need to help them restore their good names.”