By Paralegal Emma Tasch

In two of my previous blog posts, I discussed the importance of mitigation in DUI, traffic, and drug cases. One of the main takeaways that I emphasized in these blog posts is mitigation's powerful influence over the outcome of a defendant's case. Recently, mitigation's significance has grown exponentially in expungement cases, where individuals can petition a court to impound or seal their criminal records. With some courts now even requiring petitioners to submit mitigation packages with their petitions to expunge, a petitioner's mitigation package strongly can affect a judge's decision of whether to grant the expungement or sealing of that petitioner's criminal record. Through mitigation, petitioners in expungement matters have the opportunity to highlight aspects of their lives that necessarily are not reflected on court documents and thus, have a chance to advocate more thoroughly for the expungement and/or sealing of their criminal records.

Recap No. 1: What is Mitigation?

As I discussed in my first blog post, “mitigation” generally refers to “A reduction in how harmful, unpleasant, or seriously bad a situation is.” Mitigation, Black's Law Dictionary (10th ed. 2014). In the world of criminal law, the idea more specifically is known as “mitigation of punishment,” or “A reduction in punishment due to…circumstances that reduce [a defendant's] level of culpability.” Mitigation of Punishment, Black's Law Dictionary (10th ed. 2014). In other words, mitigation in the legal world involves a defendant demonstrating to the court why he or she should receive a reduced punishment for his or her crime, or why the court should completely dismiss his or her case. The most common form of mitigation involves a series of various documents that are compiled into a packet that is then presented to the court and prosecutor. The documents that often are required in the mitigation of criminal cases can range from as general as proof of employment, character reference letters, and personal statements to as specific as proof of drug treatment in drug cases and a defendant's driver's abstract in misdemeanor and felony traffic matters.

Recap No. 2: What Is an Expungement?  

In another previous blog post, I explained how an “expungement” is the “The removal of a conviction…from a person's criminal record.” Expungement, Black's Law Dictionary (10^th ed. 2014). Unlike sealing, or “The act or practice of officially preventing access to particular records in the absence of a court order,” an expungement involves the complete destruction of an individual's criminal record. Sealing, Black's Law Dictionary (10^th ed. 2014). Therefore, once an individual's request to expunge his or her criminal records is granted, a person's criminal record will not appear in the databases of the local police departments, the state police, or any of the courts that held jurisdiction over a person's criminal charges. In Illinois, the procedure for requesting an expungement varies across the State's counties. Thus, checking a circuit court's local rules stands as a very necessary step when drafting and filing a petition to expunge or seal in the State of Illinois.

Mitigation and Expungements: A Varying Relationship

Traditionally, mitigation only was required in expungement cases that involved a petitioner seeking to expunge or seal a serious felony or capital offense. Today, select jurisdictions require petitioners to submit mitigation packages either upon or shortly after the filing of their petitions. This requirement often pertains to both contested expungement cases (cases in which the prosecutor files an objection to the petitioner's petition to expunge) as well as uncontested expungement cases (cases in which the prosecutor files a non-objection response to the petitioner's petition to expunge).

Documents that commonly are used in the mitigation of expungement cases include character reference letters, a petitioner's personal statement, proof that the petitioner completed his or her sentence or probation, as well as proof of the petitioner's employment and/or school enrollment. Furthermore, mitigation in expungement cases often acts on a case-by-case basis. For example, if the court dismissed a petitioner's past charge, the petitioner more than likely will not need to write a personal statement, since he or she cannot admit fault to a past action for which he or she was never culpable in the first place. In contrast, in past criminal matters of which the court found a petitioner guilty, a personal statement can provide a chance for the petitioner to explain how he or she has learned from his or her past mistakes and how he or she has grown into a law-abiding, well-rounded citizen. Since mitigation commonly varies across expungement cases, petitioners or their attorneys must analyze the nature of each of the cases listed in their petitions to expunge in order to determine the most appropriate and most effective forms of mitigation for their specific cases.

A Way to Reveal Stories Previously Not Written on Paper

In coming to his or her decision in an expungement matter, a judge oftentimes refers to the final dispositions and other court records of a petitioner's past criminal matters to better understand the nature of the criminal charges that a petitioner seeks to remove or hide from his or her record. While these sources stand as accurate summaries of the events that occurred in the court proceedings of a petitioner's previous matters, they often overlook aspects of a petitioner's expungement matter that are not reflected in the final dispositions and other court documents.

Through mitigation, petitioners in expungement matters have the opportunity to reveal to the court and the prosecutor their stories that previously were not written on paper. For instance, a petitioner in an expungement case can use mitigation to his or her advantage by demonstrating in personal statements and character reference letters how his or her past legal matters do not define who he or she is as a person today. That petitioner also may use mitigation documents to highlight the negative impacts that his or her visible criminal record has created for his or her life outside the courtroom, such as the inability to find or hold a steady, well-paying job; the difficulty of being accepted by a college or an institution of higher learning; as well as the loss of the right to vote, the right to own a firearm, and other constitutional rights. When accompanied with the petition to expunge, the final dispositions, and other court documents, mitigation can serve as the climatical source that persuades a judge to rule in favor of the petitioner in an expungement matter. For this reason, it is crucial that petitioners represented by attorneys cooperate with their legal counsels by punctually providing the mitigation documents that their attorneys request; this will help ensure a successful outcome in the petitioner's expungement matter.

Conclusion

Overall, mitigation plays a pivotal role for petitioners in expungement cases, for mitigation provides petitioners the opportunity to demonstrate to the court such aspects as how they have learned from their past mistakes and how public accessibility of their criminal records has barred them from certain privileges and opportunities in life. By illustrating these developments and occurrences, petitioners can highlight the unfortunate and often hidden impacts that their marked criminal records have created for them and thus, increase the chance of a favorable outcome in their expungement matters. Consequently, mitigation truly can serve as a saving grace for numerous individuals who are looking to move on from their troubled past and restart their lives with a clean slate.

If you or someone you know is looking to expunge or seal his or her criminal record and needs guidance on the procedure, CTM Legal Group can help. Please contact our office by calling 312-818-6700 to schedule a consultation with one of our attorneys. After the consultation and if you wish to retain us, please be on the lookout for information regarding the mitigation documents that will be needed to help pave the way for a successful outcome in your case.