Restoration of Rights, Pardon, Expungement & Sealing
Last updated: December 1, 2017
I. Restoration of Civil/Firearms Rights
The right to vote is lost if convicted of a felony and sentenced to imprisonment; it is regained upon release. See Ill. Const. art. III, § 2 (“A person convicted of a felony, or otherwise under sentence in a correctional institution or jail, shall lose the right to vote, which right shall be restored not later than upon completion of his sentence.”). (Note that disenfranchisement extends to misdemeanants sentenced to a prison term.) The election code provides that the right to vote shall be restored upon release from confinement. 10 Ill. Comp. Stat. Ann. 5/3-5; see also 730 Ill. Comp. Stat. Ann. 5/5-5-5(c).
The right to hold an office created by the state constitution (e.g., any of the five statewide offices — governor, lieutenant governor, secretary of state, treasurer, attorney general; a member of the state General Assembly; a judgeship; a chief education officer position and a member of the state board of education) is lost upon conviction, but automatically restored upon completion of sentence (excepting convictions for crimes involving election fraud). 730 Ill. Comp. Stat. Ann. 5/5-5-5(b). The bar is permanent for “other elected offices,” including alderman and mayor, unless restored by a pardon. 65 Ill. Comp. Stat. Ann. 5/3.1‑10‑5(b). The disparate standards applied to municipal and legislative offices have been upheld by the Illinois courts.1
Illinois law does not exclude convicted persons from jury service, nor is a prior conviction grounds for a juror challenge for cause, though jurors must be “[f]ree from all legal exception, of fair character, of approved integrity, [and] of sound judgment.” 705 Ill. Comp. Stat. Ann. 305/2; see John F. Decker, Collateral Consequences of a Felony Conviction in Illinois, 56 Chi.-Kent L. Rev 731, 741 (1980) (stating that whether a convicted person meets character standard must be decided on a case-by-case basis).
Firearm rights are lost upon a felony conviction or juvenile adjudication/misdemeanor, 720 Ill. Comp. Stat. Ann. 5/24-1.1(a), and may be restored by the Department of State Police or by the circuit court where the person resides. 430 Ill. Comp. Stat. Ann. 65/10(a), (c). Relief may be granted if: (1) the applicant has not been convicted of a “forcible felony” within the preceding 20 years or 20 years have passed since release from imprisonment for that offense; (2) he is not “likely to act in a manner dangerous to public safety;” and (3) restoration of firearm rights. would not be “contrary to the public interest.” 430 Ill. Comp. Stat. Ann. 65/10(c). Individuals may appeal a denial to the Director of State Police unless their conviction involves violence (including domestic violence), drugs or firearms, in which case rights may be restored only by the court. Id. A pardon must include a special provision restoring firearms rights.
A felony offender may not serve as executor of a will or administrator of an estate. 755 Ill. Comp. Stat. Ann. 5/6-13(a), 5/9-1; see In re Estate of Muldrow, 799 N.E.2d 497, 502-03 (Ill. App. Ct. 2003) (concluding that rational basis exists under the Probate Act for excluding convicted felons from serving as executors based on a felon’s demonstrated inability to act within the confines of law, even if the felony conviction, “as applied” in particular case, is remote in time and the felon is able to demonstrate rehabilitation).
The Code of Corrections provides that “[o]n completion of sentence of imprisonment or upon discharge from probation, conditional discharge or periodic imprisonment, or at any time thereafter, all license rights and privileges granted under the authority of this State which have been revoked or suspended because of conviction of an offense shall be restored unless the authority having jurisdiction of such license rights finds after investigation and hearing that restoration is not in the public interest.” 730 Ill. Comp. Stat. Ann. 5/5-5-5(d). This provision does not apply to the suspension or revocation of a license to operate a motor vehicle. However, other more specific laws restrict licensure for certain professions. For example, the Child Care Act bars licensure and employment of individuals in child care facilities when they have been convicted of any of a long list of enumerated offenses. 225 Ill. Comp. Stat. Ann. 10/4.2. Moreover, the Illinois Vehicle Code makes conviction of any of a long list of enumerated offenses a bar to licensure as a school bus driver. 625 Ill. Comp. Stat. Ann. 5/6‑106.1(a)(11).
G. Juvenile adjudications
Juvenile adjudications or dispositions do not “operate to disqualify a minor from subsequently holding public office nor shall operate as a forfeiture of any right, privilege or right to receive any license granted by public authority.” 705 Ill. Comp. Stat. Ann. 405/5-410.
H. Compilation of Collateral Consequences
Illinois Public Act 96-0593, originally signed in 2009 and amended in 2012 (20 Ill. Comp. Stat. Ann. 5000), created a Task Force on Inventorying Employment Restrictions and called for the work to be conducted within the Illinois Criminal Justice Information Authority. The legislation provides that the Task Force “review the statutes, administrative rules, policies, and practices that restrict employment of persons with criminal history and report its findings and recommendations to the Governor and General Assembly by July 1, 2013.” On June 28, 2013 the Task Force announced online access to the Final Report of the Task Force on Inventorying Employment Restrictions. This report may be viewed and downloaded at www.icjia.org/IERTF2013.
II. Discretionary Restoration Mechanisms:
The pardon power is vested in the Governor, although “the manner of applying therefore may be regulated by law.” Ill. Const. art. V, § 12. By statute, the Prisoner Review Board (PRB) serves as “the board of review and recommendation for the exercise of executive clemency by the Governor.” 730 Ill. Comp. Stat. Ann. 5/3-3-1(a)(3). The Board “shall hear and . . . decide all requests for pardon, reprieve or commutation, and make confidential recommendations to the Governor.” 5/3-3-2(c). At the same time, “[n]othing in this Section shall be construed to limit the power of the Governor under the constitution to grant a reprieve, commutation of sentence, or pardon.” 5/3-3-13(e). The Supreme Court of Illinois has ruled that the constitution does not give the legislature authority to limit the Governor’s power to act in the absence of an application, and that in any event the legislature has not done so. People ex rel. Madigan v. Snyder, 804 N.E. 2d 546, 588 (Ill. 2004). The Seventh Circuit Court of Appeals has ruled that there is no Fourteenth Amendment property or liberty interest in obtaining a pardon in Illinois; the statutory pardon procedure does not require prompt or indeed any action by the governor, but merely describes steps in the sequences of procedures in clemency matters. Bowens v. Quinn, 561 F.3d 671, 673-75 (7th Cir. 2009).
PRB consists of 15 members appointed by the Governor to six year terms, with the advice and consent of the Senate. 730 Ill. Comp. Stat. Ann. 5/3-3-1(b), (c). No more than 8 of the same party may be on the board. The chair is to be appointed by the Governor. Id. Six-year terms, members serve full-time and may not do anything else. Id. The Board is charged with the duty to “hear by at least one member” and decide by at least a panel of three members all requests for pardon. 5/3-3-2(a)(6).
No eligibility requirements for Illinois convictions. Misdemeanants may also apply. Federal offenders and those convicted in another state are ineligible.
“[A] pardon removes the penalties and disabilities (resulting from the conviction) and restores the [individual] to all his civil rights.” People v. Glisson, 358 N.E.2d 35, 38 (Ill. App. Ct. 1976), aff’d in part, rev’d in part on other grounds, 372 N.E.2d 669 (Ill. 1978). A pardon authorizes judicial expungement only if provided in the terms of the pardon. 20 Ill. Comp. Stat. Ann. 2630/5.2(e); see People v. Thon, 319 Ill. App. 3d 855, 859-60 (2001). A pardon must specifically restore firearms rights in order to qualify a pardoned individual for a FOID card.
730 Ill. Comp. Stat. Ann. 5/3-3-13. Guidelines for applying are available at http://www.illinois.gov/prb/Documents/exclemguide%204.3.13.pdf. A sample application form is available at http://www.illinois.gov/prb/Documents/sample%20petition%204.1.15.pdf. According to the Board’s website,
Incomplete petitions must be completed within 90 days or that [sic] are discarded. A late, but completed, petition is placed on the next available hearing docket. The petitioner is also afforded the opportunity to have a public or a non-public hearing. The Board’s recommendations are typically forwarded to the governor within 60 days following the hearing. The Governor is not under any deadline to respond to the petition.
http://www.illinois.gov/prb/Pages/prbexclemex.aspx. See Bowens v. Quinn, 561 F.3d 671, 673 (7th Cir. 2009), cert. denied, 130 S. Ct. 470 (2009) (holding that where petitioners claimed that a governor’s failure to act on their clemency petitions within a reasonable time violated their rights under the Due Process Clause, their suit should have been dismissed because there was no Fourteenth Amendment interest in obtaining a pardon). “Notice of the proposed application shall be given by the Board to the committing court and the state’s attorney of the county where the conviction was had.” 730 Ill. Comp. Stat. Ann. 5/3-3-13(b). The Board is required to meet to consider clemency petitions at least four times each year. 5/3-3-13(c). “The Board shall, if requested and upon due notice, give a hearing to each application, allowing representation by counsel, if desired, after which it shall confidentially advise the Governor by a written report of its recommendations which shall be determined by majority vote.” Id. All cases are sent to the governor with a recommendation. Id. The statute expressly provides that “[n]othing in this Section shall be construed to limit the power of the Governor under the constitution to grant a reprieve, commutation of sentence, or pardon.” 5/3-3-13(e).
Frequency of Grants
As of January 2017, Governor Bruce Rauner has granted 80 pardons and denied approximately 2,300 applications, a much less generous pardoning policy than his predecessor Pat Quinn. In December 2016, Governor Rauner announced that he had eliminated a backlog dating back to Governor Blagojevich’s tenure. See Gregory Platt, Rauner clears clemency backlog, approves just 3 percent of petitions, http://www.chicagotribune.com/news/ct-rauner-clemency-backlog-denials-met-20161212-story.html. In Quinn’s nearly six years in office starting in April 2009, he granted 1,789 pardons (including two for innocence) and denied 3,133 requests, a nearly 37 % approval rate. Stacy St. Clair, et al., In last days as governor, Quinn grants clemency to 232 petitioners, Chicago Tribune, http://www.chicagotribune.com/news/ct-quinn-clemency-grant-20150109-story.html (Jan. 9, 2015). He also authorized 21 people who had previously received pardons to seek expungement of their convictions, and granted seven sentence commutations. A large number of Quinn’s grants went to people who applied for pardon in 2002-2007 when Governor Blagojevich was in office. (Governor Blagojevich granted only 65 pardons during his six years in office, most of them during his first two years, and left more than 2500 PRB recommendations unacted upon when he left office). Since April 2009, the PRB has sent forward more than 3000 additional recommendations. The average size of the Board’s quarterly clemency docket has risen from 35 petitions in 1990 to approximately 400 petitions in 2013. About one third of all applications are filed by misdemeanants. Source: Illinois Prisoner Review Board. See also PRB website, http://www2.illinois.gov/prb/Pages/prbexclemex.aspx.
Chief Legal Counsel, IL
Prisoner Review Board
319 East Madison Street, Suite A.
Springfield, IL 62703
B. Judicial Expungement and Sealing
Public Act 96-0409 (August 8, 2009) amended the Criminal Identification Act, 20 Ill. Comp. Stat. Ann. 2630/0.01 et seq. Notably, the law added a new section entitled “Expungement and Sealing.” 2630/5.2.2
1. Expungement and sealing
The term “expunge” means “to physically destroy the records or return them to the petitioner and to obliterate the petitioner’s name from any official index or public record, or both.” 20 Ill. Comp. Stat. Ann. 2630/5.2(a)(1)(E). Records that may be “expunged” are described in 2630/5.2(b), and include arrests that resulted in no charges, acquittal or dismissal; and convictions “set aside on direct review or on collateral attack and the court determines by clear and convincing evidence that the petitioner was factually innocent.” Notwithstanding the definition of “expunge” above, records of drug offenses disposed of through diversion programs may be maintained by the state police. 2630/5.2(b)(7). A prior conviction of any sort makes a person ineligible for expungement. 2630/5.2(b)(1)(A).
See also “Immediate sealing of non-conviction records,” below.
Pardoned convictions: The only convictions that may be expunged are those that have been pardoned (if the pardon document authorizes expungement), and the term “expunge” in this context does not mean physical destruction of the record. See 2630/5.2(e):
(e) Whenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes expungement, he or she may . . . have a court 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 . . . . All records sealed by the Department may be disseminated by the Department only to the arresting authority, the State’s Attorney, and the court upon a later arrest for the same or similar offense or for the purpose of sentencing for any subsequent felony. Upon conviction for any subsequent offense, the Department of Corrections shall have access to all sealed records of the Department pertaining to that individual.
The term “seal” means “to physically and electronically maintain the records . . . but to make the records unavailable without a court order, subject to [certain] exceptions,” and to “obliterate” the offender’s name from the official index required to be kept by the circuit court clerk. 20 Ill. Comp. Stat. 2630/5.2(a)(1)(K).
As of August 2017, most misdemeanor and felony convictions are eligible for “sealing” upon petition three years after termination of the person’s most recent sentence, if no intervening findings of guilt. 2630/5.2(c) (as amended by HB-2373 (2017)). Ineligible offenses include DUI, sex crimes, animal crimes, and domestic battery. 2630/5.2(a)(3). Individuals subject to registration under the following laws remain ineligible until removed from the registry: the Arsonist Registration Act, the Sex Offender Registration Act, and the Murderer and Violent Offender Against Youth Registration Act. 2630/5.2(c)(3)(C). Several deferred adjudication authorities involving “qualified probation” for minor drug crimes are also eligible for sealing after a waiting period of two to five years (see discussion of Section 1410 Probation and Second Chance Probation below).
Subsequent convictions: A person may seek to have multiple convictions sealed in the same proceeding. However, any felony offense committed after the date of the sealing may not be sealed. In addition, the court may, upon conviction for a subsequent felony offense, order the unsealing of prior felony conviction records previously ordered sealed by the court. 2630/5.2(c)(4)
Notice of eligibility for sealing: Notice of eligibility for sealing. Upon entry of a disposition for an eligible record under the sealing authority, the petitioner shall be informed by the court of the right to have the records sealed and the procedures for the sealing of the records. 2630/5.2(c)(5).
Procedure and standards
The same procedure applies to expungement and sealing. 20 Ill. Comp. Sat. 2630/5.2(d). There is no waiting period for cases involving dismissal without charge or acquittal, and a waiting period of two or five years in cases involving a deferred disposition. Procedure includes notice to DA, and a hearing upon objection filed. In deciding whether to seal or expunge records, judges may consider specific collateral consequences the individual is facing, the person’s age and employment history, and the strength of the evidence supporting the conviction. 2630/5.2(d)(7).3
Immediate sealing of non-conviction records
Effective January 2018, sealing of records of arrests and charges resulting in acquittal or dismissal may be sought by petition at the dispositional hearing. 2630/5.2(g) (enacted by HB-514 (2017)). This authority is distinct from the non-conviction expungement authority discussed above and is not subject to the same limitations on eligibility or the procedures that apply either to expungement or to the general sealing authority. 2630/5.2(g)(1). Only minor traffic offenses are ineligible (unless the petitioner was arrested and released without charges). 2630/5.2(g)(2) & (a)(3)(B). Sealing appears to be mandatory for eligible records, and a determination on the petition must be made at the dispositional hearing. 2630/5.2(g)(5)(F). “Upon entry of a disposition for an eligible record …, the defendant shall be informed by the court of his or her right to have eligible records immediately sealed and the procedure for the immediate sealing of these records.” 2630/5.2(g)(4).
Effect of expungement and sealing in employment and licensing
With certain exceptions, an expunged or sealed record “may not be considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration.” 20 Ill. Comp. Stat. 2630/12(a). Exceptions are law enforcement agencies, State’s Attorneys, prosecutors, Department of Corrections. Id. Applications for employment “must contain specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest,” and “[e]mployers may not ask if an applicant has had his/her record expunged or sealed.” Id. Sealed records must be retained by the state police, and may be disseminated only to law enforcement, or (for felony convictions only) “as otherwise specifically required or authorized by a federal or State law, rule, or regulation that requires inquiry into and release of criminal records. . . .” 2630/13(a). This includes hospitals, schools, and other agencies dealing with vulnerable populations. See also the Illinois Human Rights Act, discussed in Part III, which “does not prohibit” use of sealed felony records obtained under federal or state laws requiring a background check, or under authority of the Criminal Records Act, “in evaluating the qualifications and character of a prospective employee.” 775 Ill. Comp. Stat. Ann. 5/2-103(A). (Since expungement results in destruction of the record, provisions limiting their use seem redundant.)
2. Judicial Certificate of Discharge
Upon discharge from incarceration or parole or probation, “or at any time thereafter, the committing court may enter an order certifying that the sentence has been satisfactorily completed when the court believes it would assist in the rehabilitation of the person and be consistent with the public welfare.” 730 Ill. Comp. Stat. Ann. 5/5-5-5(e). Such order “may be entered upon the motion of the defendant or the State or upon the court’s own motion.” Id. “Upon entry of the order, the court shall issue to the person in whose favor the order has been entered a certificate stating that his behavior after conviction has warranted the issuance of the order.” 5/5-5-5(f).
3. Second Chance Probation
Effective January 1, 2014, a new provision 730 Ill. Comp. Stat. Ann. 5/5-6-3.4 will permit persons charged with minor non-violent drug, fraud or theft felony offenses, who have not previously been convicted of a felony, or of a violent offense, to be placed on probation for a period of two years, under conditions intended to promote rehabilitation (seek employment, obtain education, perform community service, etc.). Both the individual and the prosecutor must agree. Upon successful completion of probation the charges will be dismissed and “a discharge and dismissal under this Section is not a conviction for purposes of this Code or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime,” though it may be used in subsequent criminal proceedings. 5/5-6-3.4(g). This disposition is a “qualified probation” for purposes of expungement under 20 Ill. Comp. Stat. Ann. 2630/5.2(b)(1)(B)(i) and (iv) (eligibility after 5 years).
4. Deferred Adjudication for First-Time Drug Offenders
Under 720 Ill. Comp. Stat. Ann. 570/410 (formerly “section 1410”), the court may defer adjudication for first-time drug offenders, and place them on 24-months probation with various conditions of reporting and treatment. Upon successful completion of probation, the person is discharged and the proceedings dismissed. 570/410(f). “[D]ischarge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime,” though it may be used in subsequent criminal proceedings. 570/410(g), (i). However, the provisions governing resentencing after revocation of probation apply to revocations under this section even though revocation occurs prior to conviction, as the criminal code’s reference to “conviction” is not simply to the entry of a record judgment but to a determination of guilt. People v. Goetz, 327 N.E.2d 516, 518 (Ill. App. Ct..1975). Other deferred adjudication provisions for marijuana are in 550/10 (formerly “section 710”). Dispositions under both sections shall be treated as a “qualified probation” for purposes of expungement under 20 Ill. Comp. Stat. 2630/5.2(b)(1)(B)(i) and (iv) (eligibility after five years).
5. Juvenile Adjudications
“All juvenile records which have not been expunged are sealed and may never be disclosed to the general public or otherwise made widely available.” 705 Ill. Comp. Stat. 405/1-7(A) and 405/1-8(A).
Expungement of juvenile records is governed by 705 Ill. Comp. Stat. 405/5-915, which was significantly amended in 2017 to require automatic expungement of most juvenile dispositions. See HB 3817 (2017). Records of adjudications for offenses that would be a Class B or C misdemeanor or petty or business offense are automatically expunged by the court within 60 days, as are dismissed petitions, “not delinquent” dispositions, and dispositions resulting in a successful termination of an order of supervision. 5-915(0.2)(a). Most other adjudications are automatically expunged 2 years after closure of the case so long as no criminal charges or delinquency petitions are pending. 5-915 (0.3)(a). Records for particularly serious offenses are not expunged automatically, but expungement may be sought by petition after 2 years for offenses except first degree murder and those resulting in sex offender registration. 5-915 (2). Persons otherwise ineligible for automatic expungement may also seek expungement by petition, but only for Class B and C misdemeanor and petty/business offense adjudications, and non-adjudication dispositions. 5-915(1). Courts must provide information on the right to have records expunged at the time of sentencing or dismissal. 5-915 (2.6).
Expunged juvenile records are physically destroyed and removed from all official indexes and databases except those maintained by the State’s Attorney’s Office and Secretary of State. 5-915(.05). Law enforcement may also retain records, but only for use in pending felony investigations, and only for up to one year. 5-915(.02)(b) & (.03)(b). “Except with respect to law enforcement agencies, the Department of Corrections, State’s Attorneys, or other prosecutors, an expunged juvenile record may not be considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration.” 5-915(8)(a).
Reporting and disclosure of juvenile records to school authorities: “All courts and law enforcement agencies of the State of Illinois and its political subdivisions shall report to the principal of any public school in this State whenever a child enrolled therein is detained for proceedings under the Juvenile Court Act of 1987, as heretofore and hereafter amended, or for any criminal offense, including illegal gang activity, or any violation of a municipal or county ordinance. The report shall include the basis for detaining the child, circumstances surrounding the events which led to the child’s detention, and status of proceedings. The report shall be updated as appropriate to notify the principal of developments and the disposition of the matter.” 105 Ill. Comp. Stat. 5/22-20. Law enforcement authorities may share juvenile records relating to criminal activity by students with school authorities, but the records cannot otherwise become a part of the public record, or part of the student’s file. Id. Authorities may provide information to schools “only if the agency or officer believes that there is an imminent threat of physical harm to students, school personnel, or others who are present in the school or on school grounds.” 705 Ill. Comp. Stat. 405/1-7 & 405/5-905.
C. Judicial Certificates
Certificate of Relief from Disabilities (“CRD”) and Certificate of Good Conduct (“CGC”), 730 Ill. Comp. Stat. Ann. 5/5-5.5-5 et seq. The purpose of the CRD is to facilitate licensing in 27 specified areas. Like the New York CRD, on which it was modeled, it creates an enforceable “presumption of rehabilitation” that must be given effect by a licensing board. Id. The purpose of the CGC is to evidence an offender’s rehabilitation, and to lift bars to employment and other benefits. 5/5-5.5-25. The certificate process and its effect are described in Margaret Colgate Love, Paying Their Debt to Society: Forgiveness, Redemption, and the Uniform Collateral Consequences of Conviction Act, 54 How. L. J. 753 (2011).
Persons with out-of-state or federal convictions are eligible for relief from licensing restrictions through a CRD, but are not eligible for a CGC. For CRDs, see 730 Ill. Comp. Stat. Ann. 5/5-5.5-5:
“Eligible offender” means a person who has been convicted of a crime in this State or of an offense in any other jurisdiction that does not include any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act, the Arsonist Registration Act, or the Murderer and Violent Offender Against Youth Registration Act. “Eligible offender” does not include a person who has been convicted of arson; aggravated arson; kidnapping; aggravated kidnapping; aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof; or aggravated domestic battery. 4
For CGCs, see 5/5-5.5-30 (describing procedure in circuit court for issuing CGC to “any eligible offender previously convicted of a crime in this state”).
1. Certificate of Relief from Disabilities
The sentencing court may issue a Certificate of Relief from Disabilities (CRD) to eligible offenders, either at the time of sentencing or upon satisfactory completion of sentence, when the court determines by clear and convincing evidence that it is “consistent with the rehabilitation of the eligible offender” and with “the public interest.” 730 Ill. Comp. Stat. Ann. 5/5-5.5-15(b).5 A CRD does not prevent any court or administrative body from considering the conviction, nor does it preclude its use for impeachment. 5/5-5.5-10. The court may issue order at time of sentence, or at any time thereafter. The court may also request investigation by probation or court services, and may hold a hearing. 5/5-5.5-15(c), (e).
CRD Effect on licensing
The CRD authorized by 5/5-5.5-15 is given legal effect in 730 Ill. Comp. Stat. Ann. 5/5-5-5 (Loss and Restoration of Civil Rights). Under 5/5-5-5(h) and (i) a person who has been awarded a CRD may not be denied a license in 27 different fields “by reason of” conviction, or based on a finding of lack of good moral character based upon the fact of conviction unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license sought; or (2) the issuance of the license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. In making a determination whether to award a license, the licensing agency “shall consider” the following factors:
(1) the public policy of this State, as expressed in Article 5.5 of this Chapter [730 ILCS 5/5-5.5], to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;
(2) the specific duties and responsibilities necessarily related to the license being sought;
(3) the bearing, if any, the criminal offenses or offenses for which the person was previously convicted will have on his or her fitness or ability to perform one or more such duties and responsibilities;
(4) the time which has elapsed since the occurrence of the criminal offense or offenses;
(5) the age of the person at the time of occurrence of the criminal offense or offenses;
(6) the seriousness of the offense or offenses;
(7) any information produced by the person or produced on his or her behalf in regard to his or her rehabilitation and good conduct, including a certificate of relief from disabilities issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified in the certificate; and
(8) the legitimate interest of the licensing agency in protecting property, and the safety and welfare of specific individuals or the general public.
5/5-5-5(h). At the same time, the fact that an individual has received a CRD does not preclude a licensing board from relying on the conviction “as the basis for the exercise of its discretionary power” to suspend or deny any license. 5/5-5.5-10.
CRD Effect on Employer Liability
730 Ill. Comp. Stat. Ann. 5/5-5.5-15(f): “An employer is not civilly or criminally liable for an act or omission by an employee who has been issued a certificate of relief from disabilities, except for a willful or wanton act by the employer in hiring the employee who has been issued a certificate of relief from disabilities.”
The Department of Professional Regulation is required to report to the General Assembly each year the number of people with criminal records who applied for licenses, both with certificate of relief from disabilities and without, and the numbers of licenses granted and rejected. 730 Ill. Comp. Stat. Ann. 5/5-5.5-50. In lifting occupational bars, the law gives felony offenders access to licenses in fields which current legislation presumes denial of licensure, including those related to animal welfare, athletic training, cosmetology, boxing, interior design, land surveying, marriage and family therapy, professional counseling, real estate, and roofing. “Certificate is not to be deemed a pardon.” 5/5-5.5-45.
2. Certificate of Good Conduct
A court may issue a CGC to eligible offenders “to relieve an eligible offender of any employment bar. The certificate may be limited to one or more disabilities or bars or may relieve the individual of all disabilities and bars.” 730 Ill. Comp. Stat. Ann. 5/5-5.5-25(a). The court must determine by clear and convincing evidence that the offender “has demonstrated that he or she has been a law-abiding citizen and is fully rehabilitated.” Id. A CGC does “not relieve an offender of any employment-related disability imposed by law by reason of his or her conviction of a crime that would prevent his or her employment by the Department of Corrections or the Department of Juvenile Justice, or any other law enforcement agency in the State.” Id. Eligibility criteria for in-state convictions are the same as for a CRD, see 5/5-5.5-5, except that there is a “minimum period of good conduct” that the individual must establish before a court may grant this certificate. See infra.
A CGC does not prevent any court or administrative body from considering the conviction, does not preclude use of the conviction for impeachment, and does not expunge or seal the record. 730 Ill. Comp. Stat. Ann. 5/5-5.5-25(b). “An employer is not civilly or criminally liable for an act or omission by an employee who has been issued a certificate of good conduct,” unless the employer’s actions were “willful or wanton.” 5/5-5.5-25(c).
After a “minimum waiting period” of good conduct, the court must hold a “rehabilitation review” (“in a manner designated by the chief judge of the judicial circuit in which the conviction was entered”) and may issue a certificate after making “a specific finding of rehabilitation with the force and effect of a final judgment on the merits.” 730 Ill. Comp. Stat. Ann. 5/5-5.5-30(a). The “minimum waiting period” for misdemeanors is one year for misdemeanants and two years for felonies, and it begins to run upon release from custody or payment of fine, whichever is later. 5/5-5.5-30(c). The court must find that the relief to be granted by the certificate “is consistent with the rehabilitation of the applicant” and “consistent with the public interest.” 5/5-5.5- 30(a)(2), (3). The court may enlarge relief, and may also revoke the certificate upon a violation of supervision or a subsequent conviction. 5/5-5.5-30(d)-(f).
The court may issue a certificate to an applicant convicted in another jurisdiction if the applicant demonstrates that “there exist specific facts and circumstances and specific sections of Illinois State law that have an adverse impact on the applicant and warrant the application for relief to be made in Illinois.” 730 Ill. Comp. Stat. Ann. 5/5-5.5- 30(b)(1).
III. Nondiscrimination in occupational licensing and employment
A. Ban-the-Box in employment
820 Ill. Comp. Stat. Ann. 75/15. Effective January 1, 2015, private employers with more than 15 employees will be prohibited from asking about an applicant’s criminal record until the first interview, or at the point of making an offer if no interview, with the exception of certain jobs. On October 3, 2013, Illinois governor Pat Quinn issued an administrative order removing inquiries into applicants’ criminal history on state employment applications. http://www.nelp.org/content/uploads/2015/03/Illinois-Administrative-Order-1-2013.pdf. The order directed each state agency to establish a “documented review process” to ensure that any exclusion related to a criminal record is “job-related and consistent with business necessity,” considering the nature of the offense, the passage of time since conviction, and the nature of the job sought.
B. Nondiscrimination in employment and licensing
The Illinois Human Rights Act prohibits employment inquiries about, or discrimination based on, criminal history records that have been ordered sealed or “impounded.” 775 Ill. Comp. Stat. Ann. 5/2-103(A). A claim of racial discrimination has also been sustained under this law where a criminal conviction was the articulated basis for a refusal to hire. See Bd. of Trs. v. Knight, 516 N.E.2d 991, 996-97 (Ill. App. Ct. 1987) (no business necessity justified denial of employment as university police position to person convicted of single misdemeanor weapons charge; mitigating circumstances existed including time passed since conviction and record of responsible employment). Moreover, the section “does not prohibit” use of sealed felony records obtained under federal or state laws requiring a background check, or under authority of the Criminal Records Act discussed in Part IIB, supra, “in evaluating the qualifications and character of a prospective employee.” 775 Ill. Comp. Stat. Ann. 5/2-103(A). See also 20 Ill. Comp. Stat. Ann. 2630/13, discussed in Part IIB, supra. Finally, this act specifically allows employers to obtain and use “other information which indicates that a person actually engaged in the conduct for which he or she was arrested.” Id.
In general, Illinois limits consideration of conviction in connection with occupational licensing only for certain employments, and only where a person has received a certificate of rehabilitation. See Part IIC, supra, for Certificates of Rehabilitation, 730 Ill. Comp. Stat. Ann. 5/5-5-5. In addition, several licensing schemes incorporate a “direct relationship” test. See Public Accounting Act, 225 Ill. Comp. Stat. Ann. 450/20.01 (“The Department may refuse to issue or renew, or may revoke, suspend, or reprimand any license or licensee . . . [for] (4) being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of public accounting”); 335/9.1(b) (roofer’s license) (The Department may refuse to issue or revoke license for “conviction . . . of any crime under the laws of the United States or any state or territory thereof that is (i) a felony or (ii) a misdemeanor, an essential element of which is dishonesty or that is directly related to the practice of the profession”). The latter formulation is also used for acupuncturists, 2/110(a)(2); collection agencies, 425/9(a)(2); and marriage/family therapists, 55/85(b); and many other professions.
Public Act 99-876 (HB-5973), enacted in 2016, expands upon the “direct relationship” tests for initial applicants for roofing (225 ILCS 335/7.1), cosmetology (225 ILCS 410/4-6.1), funeral director (225 ILCS 41/15-72), and related licenses. Under the expanded tests a license may only be denied for “a felony directly related to the practice,” and only after the consideration of mitigating factors that include “the bearing, if any, the criminal offense … will have on his or her fitness or ability to perform one or more responsibilities,” age at the time of conviction, and time elapsed since conviction. Listed violent offenses and offenses that requires sex offender registration are “directly related to the practice” per se.
The laws governing licensing for health care workers have undergone significant changes since 2011, and have tightened restrictions on convicted individuals seeking to pursue a variety of health related licenses. See Ina Silverglide, Illinois health care licenses elude those with records, CCRC, October 16, 2016. These additional restrictions have been steadily broadened, subsequently challenged, and are presently in an uncertain state of flux. At the same time, waivers may be permitted under the Illinois Health Care Background Check Act, 225 Ill. Comp. Stat. Ann. 46/40. The law governing the hiring of health care workers who are not subject to other licensing requirements requires criminal background checks, and while it disqualifies individuals from employment upon conviction of a long list of crimes, it permits a waiver by the agency that oversees the type of facility applicant is interested in working, and requires action on the waiver application within 30 days. Id. The statute sets forth nine mitigating circumstances (e.g., the age of the person when the crime was committed, the circumstances surrounding the crime, the length of time that has passed since the crime, the person’s work history and references) for the agencies to consider in granting a waiver, and each agency sets it own procedures for granting waivers. Id. At least two health care licensing agencies have adopted a two-tiered procedure for reviewing waiver applications. See Linda Mills, Illinois Prisoner Reentry: Building a Second Chance Agenda, 141-145 (Annie E. Casey Foundation ) (July 2004). Agency staff are authorized to grant waivers that apply to the less serious offenses listed in the act, and the agency director reviews applications involving the most serious violent offenses (including murder). Id. at 141-43. Neither the state law nor agency rules set forth any offense that bars a waiver. Id. at 141. However, a waiver does not guarantee employment; it only allows the employment of an individual with a waiver by any of the facilities regulated by the agency that issued the waiver. Id. at 143.
Two agencies released their records of actions taken on waiver applications in connection with a 2004 request made by Linda Mills for her study of prisoner reentry issues for the Annie E. Casey Foundation. The Department of Human Services granted 77% of waiver requests received over an eight-year period between 1995 and 2003, including at least one waiver to an individual convicted of murder. Id. at 144. Of the 289 waivers granted by DHS over that period, only one person was later charged with abuse of a patient – and that person had only a conviction for retail theft. Id. The Department of Public Health (“DPH”) received 6,581 waiver requests from 1996 through 2003. Of those, 875 had no disqualifying convictions (this is due, according to the DPH to name matches that are not actual person matches). Of the 5,706 with actual convictions, 4,130 (72.4%) were granted waivers. Of those, 97 (2.3%) waivers were later revoked, with 38 of the revocations due to a subsequent finding of patient abuse, neglect or theft, and 59 due to a subsequent disqualifying conviction. DPH also has been generous with its waivers of the most serious, recent or violent offenses that need director approval.
NOTE: This data on waivers is dated (2004) and its present reliability is therefore questionable.
C. Chicago Reentry Initiative
In May 2004, Mayor Richard Daley created the Mayoral Policy Caucus on Prisoner Reentry, bringing together government and community leaders to address the challenges facing 20,000 people each year who return to Chicago after being released from prison. In January 2006, the Caucus issued a major report calling for broad ranging reforms of City policy. With regard to city hiring, the report recommended that the Mayor “[a]dopt internal guidelines for the City of Chicago’s personnel policies regarding criminal background checks, and advocate for fair employment standards.” Recommendations from the Final Report of the Mayoral Policy Caucus on Prisoner Reentry, available at http://nelp.3cdn.net/d444d237367c41c64f_kjm6ikkla.pdf. At the same time that the report was released, Mayor Daley announced several major “reentry” initiatives, including reform of the City’s hiring policies as recommended by the Caucus. The Mayor’s press release described a new hiring policy requiring the City to “balance the nature and severity of the crime with other factors, such as the passage of time and evidence of rehabilitation . . . Put more simply, this change means that City hiring will be fairer and more common sense.” Mayoral Task Force Releases Recommendations on Prisoner Reentry, available at http://www.nelp.org/page/-/SCLP/2011/MayorDalysPressRelease.pdf. The Mayor added, “[i]mplementing this new policy won’t be easy, but it’s the right thing to do . . . We cannot ask private employers to consider hiring former prisoners unless the City practices what it preaches.” Id. Implementing the Mayor’s new hiring policy, the City Department of Human Resources has issued guidelines imposing standards on all city agencies regulating hiring decisions related to people with criminal records. For the first time, the City of Chicago now requires all agencies to take into account the age of an individual’s criminal record, the seriousness of the offense, evidence of rehabilitation, and other mitigating factors before making their hiring decisions.
Additional Contact: Beth Johnson, Cabrini Green Legal Aid, BethJohnson@cgla.net
- See Delgado v. Bd. of Election Comm’rs, 865 N.E.2d 183, 185 (Ill. 2007) (holding that convicted felon, whose right to hold municipal office had not been restored by pardon under 10 ILCS 5/29-15, was ineligible to hold elective municipal office); Bryant v. Bd. of Election Comm’rs, 865 N.E.2d 189, 191 (Ill. 2007) (same); see also People v. Hofer, 843 N.E.2d 460 (Ill. App. Ct. 2006) (reviewing under a rational basis standard the Illinois statutory scheme that allowed a person convicted of a felony to run for constitutional office merely by completing his sentence, but did not restore the rights of such individuals to seek non-constitutional elective office without a pardon from the governor; therefore, removal of a trustee from his office pursuant to 65 ILCS 5/3.1-10-5(b) did not violate the equal protection clause).
- See Beth Johnson, Expungement and Sealing: A Lawyer’s Guide, Criminal Records: Expungement and Other Relief (Ill. Inst. for CLE, 2010 Supp.):
Prior to 2004, the only remedy of any sort for a conviction was to receive a gubernatorial pardon authorizing expungement. Whether it was a felony conviction or an ordinance violation, a pardon was the only way to obtain relief. Absent that extraordinary remedy, a person could never remove a criminal record and the stigma surrounding it from public view. The sealing law now authorizes the courts to make decisions on whether to seal minor misdemeanor offenses and limited felony offenses.
- Section 2630/5.2(d)(7) provides in pertinent part:
The court may consider the following:
(A) the strength of the evidence supporting the defendant’s conviction;
(B) the reasons for retention of the conviction records by the State;
(C) the petitioner’s age, criminal record history, and employment history;
(D) the period of time between the petitioner’s arrest on the charge resulting in the conviction and the filing of the petition under this Section; and (E) the specific adverse consequences the petitioner may be subject to if the petition is denied.
- As originally enacted in 2004, eligibility was restricted to first felony offenders convicted of non-violent offenses. The eligibility criteria have been expanded several times over the years.
- Between January 2004 and January 2010, the Prisoner Review Board also had authority to issue certificates of relief from disabilities and certificates of good conduct. During this period the Board issued 44 certificates of good conduct and 121 certificates of relief of disability.