Restoration of Rights Project – Illinois Profile
Guide to restoration of rights, pardon, sealing & expungement following an Illinois criminal conviction
Burdened for Life: The Myth of Juvenile Record Confidentiality and Expungement in Illinois
Illinois Juvenile Justice Commission (2016)
Expungement as a Tool of Restorative Justice
Christie Fischer (2015)
Related blog posts:
- Reintegration Champion Awards for 2021 (1/27/2022) - Based on our annual report on 2021 criminal record reforms, the bipartisan commitment to a reintegration agenda keeps getting stronger. A majority of the 151 new laws enacted last year authorize courts to clear criminal records, in some states for the very first time, and several states enacted “clean slate” automatic record clearing. Other new laws restore voting and other civil rights lost as a result of conviction, and still others limit how criminal record is considered by employers, occupational licensing agencies, and landlords. (The report includes specific citations to each of the new laws, and they are analyzed in the larger context of each state's reintegration scheme in our Restoration of Rights Project.) Again this year we have published a Report Card recognizing the most (and least) productive legislatures in the past year. While more than a dozen states enacted noteworthy laws in 2021, two states stand out for the quantity and quality of their lawmaking: Arizona and Connecticut share our 2021 Reintegration Champion award for their passage of three or more major pieces of record reform legislation. Arizona – The state enacted eight new laws, including a broad new record clearing law, two laws improving its occupational licensing scheme, and a judicial “second chance” certificate. Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors. Connecticut – Enacted a major automatic record clearing scheme, restored the right to vote and hold office upon release from prison, provided for record clearing in connection with marijuana legalization, and broadened expungement for victims of human trafficking. Another eight states and the District of Columbia earned Honorable Mention for their enactment of at least one major new law: Alabama – Enacted first state record-clearing authority applicable to misdemeanor convictions and pardoned felonies, and extended non-conviction sealing. California – Gave retroactive effect to automatic conviction sealing law enacted in 2019. (This new law may be the most consequential of any enacted last year in terms of its impact on criminal records in the state, and it was done without fanfare or publicity.) District of Columbia – Enacted a comprehensive scheme to limit consideration of criminal record in occupational licensing. Illinois – Added employment discrimination based on conviction to the state Human Rights Act, authorized voter education for prisoners. New Jersey – Enacted a landmark fair housing bill; made some improvements to its 1970’s-era occupational licensing law; and, provided for automatic record clearing in connection with marijuana legalization. (New Jersey was our Reintegration Champion for 2019, but evidently is not resting on its laurels.) New Mexico – Improved 1970’s-era public employment and licensing law; authorized expungement of marijuana convictions; and, enacted a substantial part of the Uniform Collateral Consequences of Conviction Act, limiting and providing relief from collateral consequences. Ohio – Expanded eligibility for record-clearing; significantly improved occupational licensing law. Virginia – Authorized petition-based and automated record-clearing of non-convictions and convictions, including convictions for marijuana possession; restored vote upon release by executive order and took steps to amend constitution to this end. Washington – restored vote upon release from prison; amended occupational licensing standards for health professions; repealed driver’s license suspension based on outstanding financial obligations Low marks go to three states that enacted no record reform laws at all in 2021. While there are six other states in this category this year, the legislatures of Alaska, Massachusetts, and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records. The profile of each state's restoration of rights scheme from CCRC’s Restoration of Rights Project is linked above (except for the states that made no progress). The profiles contain citations and links to the relevant new laws so that interested individuals can check their specific terms.
- New Jersey puts “fair chance housing” on the national agenda (6/22/2021) - People with a record frequently experience challenges in obtaining or maintaining housing. For those who have been incarcerated, on supervision, charged, and/or arrested, the background check for rental applications can be a persistent obstacle. Lack of stable housing is a major roadblock to successful reintegration into the community or the pursuit of social and economic opportunities. It is therefore encouraging that states have begun to enact laws limiting record-based disqualifications in housing decisions. On June 18, New Jersey Governor Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances. The NAACP New Jersey State Conference, Latino Action Network, Fair Share Housing Center, and New Jersey Religious Action Center of Reform Judaism led organizational advocacy for the measure. Senator Troy Singleton, one of the bill’s primary sponsors, cited the “staggering amount of data on the national level that shows securing housing is one of the key barriers to reducing recidivism,” according to the New York Times. “This measure will allow those who have paid their debt to society to move forward with their lives in a productive manner.” Another sponsor, Assemblyman Benjie Wimberly, noted that “We’re fighting generational poverty, homelessness, and hopelessness through social justice reform measures such as this one.” With New Jersey's legislation—following on the heels of laws enacted in 2019 in Colorado, Illinois, and New York, legislation in D.C. in 2017, and a slew of local ordinances since 2016— "fair chance housing" has arrived on the national reintegration agenda. While many states have adopted reforms that limit the use of criminal records in employment and occupational licensing, until these recent developments housing does not appear to have been a priority for lawmakers, at least at the state level. In the last five years, a policy movement has emerged in favor of "fair chance housing" policies, which regulate and limit the consideration of criminal records by housing providers. Toolkits have been published by the National Housing Law Project and Root & Rebound, and advocacy campaigns have been led by groups such as Just Cities, Fair Chance Housing Coalition, and many others. In some cases, these policies broadly prohibit the use of criminal history, with limited exceptions for certain serious convictions or recent convictions or pending cases. In others, policies also delay criminal history checks until after a conditional lease is provided, importing the "ban-the-box" approach pioneered in connection with fair employment laws, often with standards for when a conditional lease may be withdrawn based on criminal history, and enforcement mechanisms. Federal regulatory guidance issued in 2016 by the Department of Housing and Urban Development (HUD) has also played a part. This post summarizes the new housing reforms at the local level, in D.C. and three states, describes in detail the groundbreaking New Jersey legislation, and summarizes relevant federal law. Local Ordinances Since 2016, fair chance housing ordinances have been adopted in several major U.S. cities, with expansive provisions adopted in Oakland, Berkeley, Seattle, and Portland, and more modest provisions in cities such as Richmond (CA), Urbana, Madison (WI), San Francisco, and Newark (NJ), according to the Fair Chance Housing Coalition. For example, Seattle prohibits requiring disclosure of, inquiring into, or taking adverse action based on the criminal history of a prospective tenant or occupant, except if needed to comply with federal or state law, and requires adverse action based on information from the adult sex offender registry have a “legitimate business reason”—with exceptions for certain types of dwellings. Similarly, Oakland prohibits rental housing providers from inquiring about or taking adverse action based on criminal history, except to comply with federal or state law, or to review the lifetime registry to protect a person at risk, again with exceptions for certain types of dwellings. District of Columbia In 2017, D.C. enacted the Fair Criminal Record Screening for Housing Act, which requires housing providers reviewing tenant applications to make a conditional offer before making a criminal history inquiry. Once inquiry is made, the law prohibits housing providers from considering arrests that did not result in conviction, or from considering convictions or pending accusations other than for 48 listed offenses. Moreover, the conditional offer may be withdrawn only by providing specific reasons in writing for why doing so "achieves a substantial, legitimate, nondiscriminatory interest." Other procedural protections apply, and violations may lead to fines via complaints to the Office of Human Rights (OHR). In turn, the OHR must report to the D.C. Council on an annual basis about complaints and investigations and must also provide a public education curriculum. Certain housing is excepted. More details are available in the D.C. profile of our Restoration of Rights Project. State laws In 2019, three states joined the action, adopting laws limiting criminal history inquiries in connection with housing: Colorado enacted the Rental Application Fairness Act, which provides that a landlord considering a rental application may not consider any arrest records or records of convictions that occurred more than five years before the application. However, a landlord may consider any conviction or deferred judgment for specified methamphetamine and amphetamine offenses, offenses requiring sex offender registration, homicides and related offenses, and stalking offenses. Civil actions may be brought to remedy violations for treble the amount of the application fee, plus court costs and attorney fees. See the Colorado profile for more details. Illinois extended its Human Rights Act to cover “real estate transactions,” prohibiting inquiries about or discrimination based on arrests not leading to a conviction, juvenile records, or records ordered expunged, sealed, or impounded. See the Illinois profile for more details. New York prohibited, in connection with providing housing, asking about or acting adversely based on records from an arrest or case terminated in favor of the individual, certain marijuana offenses, cases terminated as a youthful offender adjudication, and cases that resulted in a sealed conviction, including those sealed under the 2009 Drug Law Reform Act. See the New York profile for more details. New Jersey New Jersey's Fair Chance in Housing Act is the most extensive state-level regulation of housing to date, applying to all rental housing providers except owner-occupied premises of four units or less. The law prohibits consideration of any criminal record at the initial rental application stage, allows only certain records to be considered after a conditional offer is made, and imposes substantive and procedural standards for withdrawal of a conditional offer. Violations may be sanctioned with up to $10,000 in fines and other compliance measures, civil immunity is provided for landlords from claims based on decisions to rent to individuals with a record, and reporting requirements are included. The following paragraphs summarize the provisions of the bill. Initial rental application: Under the bill, prior to accepting an application fee, a housing provider must disclose in writing whether they review and consider criminal history and state that an applicant may provide evidence demonstrating inaccuracies with the criminal record, evidence of rehabilitation, and other mitigating factors. Housing providers may not inquire into or ask about a rental applicant's criminal history prior to making a conditional offer, except they may consider whether an applicant has ever been convicted of manufacturing or producing methamphetamine on the premises of federally assisted housing or is subject to a lifetime sex offender registration requirement (both grounds for exclusion from public housing under federal law). Records that may be considered: Even after making a conditional rental offer, housing providers may not consider arrests or charges that have not resulted in conviction, expunged convictions, convictions erased through executive pardon, convictions that have been vacated and otherwise legally nullified, juvenile adjudications, and sealed records. Housing providers also may not require an applicant to submit to a drug or alcohol test, or request consent to obtain information from a drug treatment facility. After a conditional offer, the following records may be considered: convictions for certain listed violent and sex offenses; a pending indictable offense (felony); a conviction for a fourth degree indictable offense if the prison sentence concluded within the previous year; a conviction for a second or third degree indictable offense if the prison sentence concluded within the previous four years; a conviction for a first degree indictable offense if the prison sentence concluded within the previous six years. Withdrawal of conditional offer: A housing provider may withdraw a conditional offer based on criminal history only if they determine "by preponderance of the evidence, that the withdrawal is necessary to fulfill a substantial, legitimate, and nondiscriminatory interest." The reasons must be provided "with specificity" in writing, with an opportunity to appeal by providing evidence of inaccuracies within the record, rehabilitation, or other mitigation. The housing provider must perform an individualized assessment in light of six factors relating to the offense, the applicant, and rental safety. The applicant may request, within 30 days of notice of a withdrawal, a copy of all information relied on in considering the applicant, which must be provided within 10 days of a request, free of charge. As previously noted, the applicant must be given an opportunity to present evidence of inaccuracies in the record relied upon, and of mitigating factors. Model forms: The Division of Civil Rights is directed to prepare for housing providers model forms for initial disclosures and notice of withdrawal of a conditional offer, in English, Spanish, and any other language deemed appropriate. Advertising: Housing providers may not publish an advertisement that it will not consider an applicant who has been arrested or convicted, except for an applicant convicted of manufacture or production of methamphetamine on the premises of federally assisted housing or is subject to a lifetime sex offender registration requirement. Civil immunity: To encourage landlords to provide housing to formerly incarcerated individuals, landlords subject to the law are immune from civil liability arising for a decision to rent to individuals with a record, except for a person with convictions for specified violent and sex offenses. Enforcement: An applicant or prospective applicant may file a complaint with the Division of Civil Rights of the Department of Law and Public Safety, which shall make an effort to notify the housing provider and provide 14 days to mediate and address the issue. The division itself may also file complaints, without the requirement of mediation, including for retaliations against a complainant. After an investigation, if the complaint is substantiated, the division "shall" issue monetary penalties of $1,000 to $10,000, depending on whether there are previous violations (up to $1,000 may be assigned to the complainant), and the division may issue other non-monetary remedies, including in some circumstances requiring the provision of the rental unit to the complainant. Final decisions on an investigation may be appealed by the housing provider or complainant. Reporting: The law also requires the Division of Civil Rights to collect data on complaints and investigations and to report annually on its website information about substantiated complaints that have resulted in monetary penalties. Federal law In addition, federal regulatory guidance issued by the Department of Housing and Urban Development (HUD) in 2016 limits the use of criminal records by housing providers and realtors pursuant to the federal Fair Housing Act. The HUD guidance provides that: where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider. The guidance indicates that because "[n]ationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration," use of criminal history is likely to trigger the “non-discriminatory interest” requirement. The guidance further suggests that arrest records should not used as a basis for exclusion, that the nature, severity, and recency of a conviction must be considered, and that “ensuring resident safety and protecting property” are the only interests that can justify criminal history exclusions. Finally, federal law imposes mandatory and discretionary bars on residency in public and federally-assisted housing. Mandatory exclusions apply to people who are subject to a lifetime sex offender registration requirement or have been convicted of producing methamphetamine on the premises of federally-assisted housing. A variety of discretionary grounds are provided for denial of public and federally-assisted housing based on criminal records or engagement in criminal activity, including for drug activity or activity that would adversely affect other tenants. Such adverse actions may also result in eviction of other members of a person's household. For more information on federal exclusions, see National Housing Law Project, An Affordable Home on Re-entry: Federally Assisted Housing and Previously Incarcerated Individuals (2018). (The introduction to this document is an instructive reminder of how HUD guidance has evolved where criminal records are concerned, from the focus on avoiding violent crimes in the 1970s, to the draconian “one strike and you’re out” rules applied in the 1990s, to today’s comparatively more nuanced policies.) *** Note: With four states having enacted laws limiting consideration of criminal records in housing, we are expanding our 50-state Restoration of Rights Project to cover housing in addition to employment and licensing (along with restoration of civil rights and record relief).
- Access Barriers to Felony Expungement: The Case of Illinois (2/18/2021) - Currently, 33 states authorize the expungement or sealing of at least some felony convictions.i However, recent research has shown that only a small percentage of eligible individuals actually complete the court petition process required to obtain this relief in most jurisdictions.ii In the fall of 2020, as an outgrowth of its work surveying record relief laws in the 50 states, the Collateral Consequences Resource Center (CCRC) decided to take a closer look at barriers that prevent people with felony convictions from accessing relief intended to benefit them. Ideally, the most efficient way to overcome access barriers would be to make sealing automatic, dispensing with the requirement of filing individual petitions. However, the move toward automatic sealing is in its early stages,iii and we anticipate that petitions will remain the primary way to clear felony conviction records in most states for the foreseeable future. Accordingly, it is important to minimize barriers to petition-based relief at every level. In order to minimize barriers, they must first be identified and documented. We have therefore begun work on a project to analyze barriers to petition-based sealing of felonies in a number of different states. This will hopefully encourage those states to reform their process to retain only substantive and procedural requirements that are truly necessary from a policy perspective, and to shift burdens now placed on individual applicants to the government wherever practicable. At the same time, the revealed difficulty of accessing petition-based relief on an equitable basis would be a strong incentive to consider automation, and the costs and benefits of each process could more easily be compared. As a preliminary step toward launching this project, we collaborated with Beth Johnson and her partners in the Rights and Restoration Law Group (RRLG) to develop a survey instrument that collects information about access barriers to felony expungement across four domains: (1) resource and knowledge; (2) eligibility; (3) process; and (4) effectiveness. We tested our survey instrument with practitioners from several states. Beth and her team took the survey for their home state of Illinois and analyzed the strengths and weaknesses of the state’s record-sealing system.iv We are publishing the RRLG Illinois report that follows as a pilot for additional state-specific studies. It provides detailed descriptions of the Illinois system’s strengths and weaknesses in the four areas identified above, and makes recommendations for reform. RRLG’s survey responses are in the appendix. The Illinois report is available as a PDF here, and included in this post below. We hope to be able to broaden this project to work with practitioners from additional states to complete the survey and write up case studies, on the basis of which we could recommend state-specific reforms as well as more general best practices. In addition to this project, we have been collaborating with Jessica K. Steinberg, director of the Prisoner & Reentry Clinic at GW Law, on an initiative in which the clinic has created a survey tool and conducted data collection on pro se access barriers to felony expungement in 34 states, with a white paper planned for later this year. In the meantime, here are links to the survey questions used for this report. We invite anyone interested to complete it, to help us gather data for this undertaking: Part I. Resource & Knowledge Barriers: https://forms.gle/MxRYtcpvMahYybcM7 Part II. Eligibility Barriers: https://forms.gle/RHQo92DedtddqyrJ7 Part III. Process Barriers: https://forms.gle/nAjUHKwKjmbKzXMZ9 Part IV. Effectiveness Barriers: https://forms.gle/t2iNh1RPJDPLDkXm7 NOTES i Four more states allow sealing or expungement of pardoned felony convictions; Arizona has set-aside but not sealing. See Authority for expunging, sealing, or setting aside convictions, Collateral Consequences Res. Ctr. (Updated Dec. 2020), https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/. ii See, e.g., J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L. Rev. 2460 (2020); Colleen Chien, America's Paper Prisons: The Second Chance Gap, 119 Mich. L. Rev. 519 (2020). iii See Michigan makes sealing of convictions automatic, including for some felonies, Collateral Consequences Res. Ctr. (Oct. 13, 2020) (“This legislative package makes Michigan the sixth state to enact an automatic conviction-sealing law covering a range of offenses. It also makes Michigan the third state to make relief automatic for some felony convictions….”), https://ccresourcecenter.org/2020/10/13/michigan-becomes-sixth-state-with-automatic-conviction-relief./; Kathryn Forkey & Sean Logue, New Jersey steps out as reintegration champion of 2019, Collateral Consequences Res. Ctr. (Feb. 27, 2020) (“L. 2019, c. 269] creates a new “clean slate” system that provides for expungement of all but the most serious violent offenses after ten years. It additionally sets in motion a process aiming to automate all clean slate expungements.”), https://ccresourcecenter.org/2020/02/27/new-jersey-steps-out-as-reintegration-champion-of-2019/. iv Note that Illinois styles its general record relief for convictions as “sealing” rather than “expungement,” consistent with terminology used in many but by no means all other states. Illinois offers “expungement” (defined to include “physical destruction”) only for non-conviction records and convictions that have been pardoned. The final section of the Illinois report discusses the effect of “sealing.” **************************************************************** Access Barriers to Sealing of Felony Convictions in Illinois: A Close Look at Law and Practice By Beth Johnson, Courtney Kelledes & Nikki Donnelly Summary of Strengths and Weaknesses RESOURCE & KNOWLEDGE BARRIERS What resources are available and what systems are in place to ensure that people know about and can access the process for obtaining record relief? While Illinois legal aid resources are well-funded and standardized application forms are used statewide, most courts do not inform defendants about the availability of sealing as required by law. In addition, complete and accurate criminal history records are hard for individuals to obtain because the Illinois courts are decentralized. ELIGIBILITY BARRIERS What policies and practices prevent people from qualifying for sealing or expungement relief? Eligibility for felony sealing is very broad, though some offenses are categorically excluded. Waiting periods are brief and uniform for all eligible offenses, but they begin anew with any new conviction, including even misdemeanor driving offenses. PROCESS BARRIERS What procedural requirements discourage eligible individuals from following through with the process? Courts are generally responsible under statewide rules for most notice and service requirements, but many specific aspects of the petition process vary from jurisdiction to jurisdiction, and frequently impose unnecessary burdens on petitioners. EFFECTIVENESS BARRIERS What limitations on the effect of sealing or expungement diminish the potential benefits of this type of record relief? Most public and private employers and licensing agencies are prohibited from considering sealed records by the state human rights law, but regulated employers that are required to do background checks are broadly exempted and there is no single source of information to identify those exempted employers. In addition, courts that sell their records in bulk to background screeners do not monitor purchasers to ensure that sealed records are removed. There is no private right of action for unlawful disclosure of sealed records. Discussion In its report on national restoration of rights and record relief mechanisms, CCRC ranked Illinois first in the nation for its record relief laws and practices.1 Of note, Illinois currently has the most expansive sealing law in the country, extending eligibility to almost all felony convictions, including many violent and other serious offenses. In addition to the breadth of eligibility, CCRC gave high marks to the state’s access to, and effectiveness of, relief. The state also scored well on its laws and regulations limiting record-based barriers to employment and occupational licensing. Despite the state’s overall high ranking, individuals seeking to seal felony records in Illinois still face numerous obstacles. In the discussion that follows, we organize these obstacles into the four barrier domains described above, noting their strengths and weaknesses, and making suggestions for improvement in each domain. This analysis focuses on Illinois’ legal remedy for sealing felony convictions through the circuit court of conviction as authorized by the Criminal Identification Act (20 ILCS 2630/5.2). We provide the detailed survey questions and responses in the appendix. RESOURCE & KNOWLEDGE BARRIERS STRENGTHS of Resources & Knowledge in Illinois Illinois does not provide a right to counsel for sealing relief but does have a significant number of resources dedicated to helping individuals access this remedy. Since 2004, per the Criminal Identification Act, the Office of the State Appellate Defender (OSAD) has been directed to “establish, maintain, and carry out a sealing and expungement program to provide information to persons eligible to have their arrest or criminal history records expunged or sealed.” 20 ILCS 2630/11. OSAD recently added resources to this work, including hiring a Director of the Expungement Program in 2020. The core of this program is a dedicated statewide legal hotline for legal information regarding criminal record relief, including sealing rights and procedures. Additionally, in 2012, the Illinois courts established institutional resources dedicated to improving access to justice. That same year the Illinois Supreme Court adopted a rule calling for standardized forms in areas of law and practice with a high volume of self-represented litigants. This rule produced plain language forms for expungement and sealing for use in all circuit courts throughout Illinois’ 102 counties. The forms are available online at the Illinois Supreme Court’s Access to Justice initiative site, and nearly all 102 county clerks link to the forms on their websites. The Illinois legal aid community has also significantly increased its work in criminal record relief over the past decade. Through both state appropriations and private foundations, legal aid organizations provide expungement and sealing services in all 102 Illinois counties. Local expungement and sealing summits are regularly held across the state, as collaborations between these legal aid organizations, courts, elected officials, and other community stakeholders. For individuals not otherwise able to obtain direct services, the statewide legal resource provider, Illinois Legal Aid Online, offers free tools utilizing technology to provide information, as well as automated document preparation programs, for sealing and expungement petitions. Finally, with the legalization of adult-use recreational cannabis in Illinois, revenue generated from sales tax and fees was in part used to create the Cannabis Expungement Fund. A large portion of this funding was used to create a statewide network of legal aid organizations to provide legal assistance to expunge eligible cannabis convictions. It created an online registration system and telephone number for any individual seeking to determinate their eligibility for relief. Eligible individuals are referred directly to a network partner or to pro se resources. Those ineligible for cannabis expungement relief are directed to the statewide resources discussed above for general sealing assistance. WEAKNESSES of Resources & Knowledge in Illinois While Illinois has what may be the most expansive sealing law in the country, those who would benefit from it frequently do not know about it. In addition to widely held misconceptions about records retention and relief, the available resources and updates to the law are not effectively communicated to those impacted by the criminal justice system. This is driven in large part by the courts’ failure to inform defendants of sealing eligibility and procedural requirements, although they are required to do so by the Criminal Identification Act. 20 ILCS 2630/5.2(c)(5). (Cases handled in one of the special pre- or post-disposition specialty courts or diversion programs within the criminal system are an exception, in that they do typically provide this information.) There is no mechanism for holding courts accountable for their failure to provide this information. While stakeholders in the criminal system such as prisons, jails, and probation departments could be another means of providing this information, there is no requirement that they do so and no consistent practice. All too often, individuals only find out about the availability of sealing after being met with a denial of employment, housing, education, occupational license, or other life opportunity. Despite the increase in dedicated resources, the most significant barrier for individuals seeking record relief is finding out exactly what their record is. It is notoriously difficult for would-be petitioners in Illinois to ascertain accurate, specific, and complete information regarding their background because the state does not have a unified court system (or unified court record system), so individuals must research their records in the separate court databases maintained by each county. In theory, Illinois State Police (ISP) records could be a good source statewide criminal history information, but arresting agencies, state’s attorneys’ offices, and circuit clerks frequently do not submit criminal history information to the ISP, and there are no review or enforcement mechanisms to ensure accurate reporting.2 As a result, ISP records are frequently inaccurate and incomplete, making it necessary for individuals to consult each county’s court system for complete information. Key Improvements to Mitigate Resource and Knowledge Barriers Raise awareness of sealing relief by enforcing the Criminal Identification Act’s notice requirements through: (1) education of officers of the courts; and (2) development of accountability measures for failure to provide notice. Improve the Criminal Identification Act’s notice requirements by requiring courts to inform defendants, prior to an entry of guilt, about sealing eligibility, wait periods, and other process requirements. Require probation departments, county jails, and state prisons to provide general information about sealing eligibility and procedures to individuals. Improve the accuracy of statewide criminal history reports by adopting review and enforcement mechanisms for the submission of criminal history information to the Illinois State Police. Increase dedicated state-funding for record relief work, expanding upon the cannabis legalization funded statewide network, central intake, and coordinated referral system to cover all types of record relief. Encourage state and local bar associations to provide opportunities and training for the private bar to undertake record relief representation to increase access for people who are ineligible for legal aid. Law school clinics could also be engaged in this work. ELIGIBILITY BARRIERS STRENGTHS of Sealing Eligibility in Illinois With the enactment of a comprehensive sealing scheme by the 2017 amendments to the Criminal Identification Act, piecemeal determinations of eligibility became a thing of the past in Illinois. Prior “add them in” piecemeal reforms had led to uncertainly and discrepancies respecting which crimes were eligible and which were not. Today, one of the greatest strengths of Illinois record relief law is that a majority of felony convictions are eligible to be sealed, without regard to their grade. There is also no limit on the number of offenses that may be sealed—except that felony convictions occurring subsequent to a sealing are ineligible (though subsequent misdemeanor convictions are eligible). The categories of conviction that are ineligible include sex offenses, domestic violence offenses, DUI and reckless driving, and dog fighting and violations of the Humane Care for Animals Act. See 20 ILCS 2630/5.2(a)(3). However, a record of ineligible convictions does not disqualify a person from seeking relief for eligible convictions. Another strength of Illinois’ sealing eligibility is the brief and uniform waiting period of three years from completion of the last sentence. Additionally, the court has discretion to waive the three-year wait if a petitioner completes an educational degree or career/vocational certification while serving their last sentence. When eligibility expanded in 2017, it was unclear whether unpaid legal financial obligations barred relief. In 2019, this issue was settled by an amendment to the law providing that sealing eligibility is not affected by unpaid court debt (although unpaid restitution may be grounds for discretionary denial). WEAKNESSES of Sealing Eligibility in Illinois While hundreds of felony convictions are eligible for sealing, there are still several categories of offenses that are not eligible for relief, as discussed above, regardless of the individualized facts and circumstances of the offense, or the person’s life since conviction. It is a strength of Illinois’ sealing eligibility that waiting periods are uniform and brief, but the fact that the waiting period starts again with each conviction can be a weakness. Thus, for example, if a petitioner’s “last sentence” is a minor offense such as a Class A or B misdemeanor traffic or ordinance violation, the person must wait for the three-year period to run on the misdemeanor violation before becoming eligible to seal a felony that may have occurred decades before. Key Improvements to Mitigate ELIGIBILITY Barriers Make all conviction records eligible for relief. Because courts have discretion in granting or denying any sealing request, categorical exclusions are overbroad. Change the cumulative nature of the waiting period to allow sealing of a felony record after three years, even if there have been subsequent misdemeanor convictions. (A person would be able to come back to court to seal the subsequent misdemeanor convictions, since only subsequent felony convictions are ineligible.) At a minimum, a conviction for Driving on a Suspended License should not delay eligibility for sealing other offenses. PROCESS BARRIERS STRENGTHS of the Sealing Process in Illinois The 2011 revision of the Criminal Identification Act provided definitions and codified procedural improvements for sealing petitions, notably shifting notice and service requirements from the petitioner to the court. The circuit clerks are now required to provide notice to required agencies upon filing the petition and must serve the order granting relief on those same agencies. Shifting this responsibility not only eliminated burdens on pro se petitioners that might deter them from applying, it also limited opportunities for clerical and administrative errors that previously frustrated applicants. Shifting notice and service requirements to the clerks also ensures the process is completed, because the clerks send notice to agencies after the order is entered. The Illinois Supreme Court’s statewide forms (described above in the Resource Barriers section) have removed prevalent barriers in inconsistent policies from jurisdiction to jurisdiction: The statewide forms allow for an unlimited number of cases to be included on the same petition. This has stopped practices in certain jurisdictions that previously required a separate petition—and therefore a separate filing fee—for each case; The statewide forms do not require notarization; and The Administrative Office of the Illinois Courts is quick to respond to complaints about clerk’s offices that do not accept the statewide form or seek to modify it. Illinois Supreme Court Rule 298 was amended in 2019 to omit a provision limiting fee waivers to persons at or below 150% of the federal poverty level (FPL). Courts may now reduce fees proportionally up to 400% of the FPL, in accordance with the standards set forth in 735 ILCS 5/5-105. WEAKNESSES of the Sealing Process in Illinois In addition to the difficulty of accessing complete statewide criminal history information discussed above in the Resource Barrier section, petitioners must also file a separate petition in each jurisdiction where a conviction occurred, requiring some petitioners to file in multiple counties. The burden of filing in and traveling to multiple jurisdictions is compounded by the lack of uniformity throughout Illinois’ 102 counties regarding the following procedural requirements: Petition Copies: Jurisdictions vary in how many copies a person must file, and in the specific documents within the statewide forms they must file (some require only a petition, others require a notice, petition, and order). Not all counties have an e-filing system though it is required by the Illinois Supreme Court. Notice: Notice and service is handled by the circuit clerk, but it is the responsibility of petitioners to identify and provide accurate mailing addresses for the agencies and entities required to receive notice, including the appropriate State’s Attorney’s Office, arresting agency, and the “chief legal officer” of the municipality where the arresting agency is located. Information on the chief legal officer is particularly difficult to ascertain, as there is no statewide list that includes this information for each of the 1,298 municipalities in Illinois. Costs: While filing fees can be waived, they vary greatly throughout the state for those who do not qualify for waiver. Base filing fees range from around $100 to upwards of $500. Timing: Waiting times from point of filing to point of decision also vary greatly. State law requires agencies to object to sealing petitions within 60 days, but some courts set dates for disposition well beyond that period whether or not an agency has objected. Hearings: Jurisdictions vary as to when a hearing occurs. While the law requires a hearing only if there is an objection; some counties set a hearing date immediately upon filing, while others set a hearing date only after an objection is filed. In the latter case, a petition could remain pending for a period much longer than the 60 days agencies have to respond. Status: It is often difficult, if not impossible, to check on the status of petitions if no hearing date is set upon filing, as petitions can linger for months and months. Post-Ruling: Clerks offices vary in the amount of time it takes to notify agencies of a decision, which in turn creates long periods between the time the order is granted and the time the record is actually sealed. While the statute dictates how long the agencies have to comply upon receipt of the court order, there is no similar time frame for when the court must serve the order. These jurisdiction-specific procedural variations make it difficult for practitioners to provide legal advice, and even more difficult for pro se petitioners to navigate the system. Many of these variations are such that their elimination would not require statutory amendment, but only a new rule by the Illinois Supreme Court. Key Improvements to Mitigate PROCESS Barriers Make filing procedures and document requirements consistent from county jurisdiction to jurisdiction, and as undemanding as possible. Mandate that every jurisdiction accept, but not require, e-filing. Eliminate the blanket requirement that the petition list the chief legal officer of the local municipality; in cases where the petition includes eligible ordinance violations prosecuted by that municipality, require the clerk’s office to provide this information. Require court dates to be set upon filing or within a reasonable period afterward, thereby removing uncertainty about when the petition will be considered and allowing petitioners to check on the status of their petitions. Require the courts to notify agencies promptly when a decision has been reached, with no delay longer than 30 days. EFFECTIVENESS BARRIERS STRENGTHS of Sealing Effectiveness in Illinois Illinois’ expansive sealing eligibility is complemented by laws that provide successful petitioners with protections after a sealing order has been issued. Under the Criminal Identification Act, circuit clerks and law enforcement agencies must update records after a sealing order to read “no record,” thereby leaving no indication that a person had a record sealed. Under the Illinois Human Rights Act, public and private employers and landlords may not inquire about or consider a sealed conviction in a housing or employment decision. A person has recourse under the Act to file a charge with the Department of Human Rights, as well as a private right of action for violations. In addition to the state statue, similar protections exist under various county ordinances. An occupational licensing reform law enacted in 2017 explicitly prohibits the Illinois Department of Financial and Professional Regulation from considering sealed (or expunged) records in licensing decisions. The sweeping legislation also covered ten other professional licenses issued by other state agencies. Similarly, the Illinois Department of Public Health, which regulates unlicensed healthcare workers and administers the health care waiver process under the Healthcare Worker Background Check Act, does not disqualify based on a sealed conviction. WEAKNESSES of Sealing Effectiveness in Illinois Notably, sealed felony convictions must still be released by the Illinois State Police to agencies required under state or federal law to conduct a fingerprint-based background check.3 Among these agencies are schools, park districts, and childcare services. While most public and private employers are prohibited by the Illinois Human Rights Act from considering sealed records, that same protection does not extend to these regulated fields of employment. Further, there is no single, identifiable list of all agencies that have this statutory access, leaving petitioners uncertain which employment opportunities will still be hampered by a sealed felony conviction record. In Illinois, an order to seal does not extend to any third party that has otherwise obtained the criminal history information, which is particularly problematic where web-based sources like “mug shot” libraries and newspaper articles are concerned. There also is no state private right of action against unlawful disclosure after a sealing order has been entered. While individuals have certain rights under the federal Fair Credit Reporting Act, that law is infrequently enforced by the responsible federal agency and individual enforcement is expensive and time-consuming. Another weakness is the fact that courts sell their records to private background screeners, and evidently then do not monitor their compliance in removing sealed records. Illinois does not have a centralized court record system that would allow it to emulate Pennsylvania’s “lifecycle file” system that allows monitoring of background check companies, and county courts have not implemented similar models with their contracts to sell publicly accessible criminal record data. Key Improvements to Mitigate EFFECTIVENESS Barriers State law should limit release of sealed felony conviction records, by courts or the state police, to situations involving a specific prohibition on employment for a particular offense, instead of broadly to any agency required under state or federal law to conduct a fingerprint-based background check. Provide incentives for employers who can access sealed felony convictions to offer employment, including through enacting negligent hiring protections. Require the Illinois State Police to maintain a public database that lists which employers/agencies have access to sealed felony conviction records. Require the Illinois State Police to provide more detailed statistics about sealing orders entered in the State. While the Criminal Identification Act requires publishing annual statistics on the number of petitions filed, it does not break down that information by county, which is important to understand where sealing relief is being accessed. Additionally, an audit of this data should be required. Sealing orders should direct any private background check company that has purchased or contracted with the circuit clerk to receive bulk court data to remove the sealed records from their files. The court should also be responsible for providing notice to any such private entity upon entry of a sealing order. While counties cannot be expected to know who accesses online public databases, they do know who pays them to access bulk records. State law should authorize a private right of action against third parties that unlawfully release sealed record information, and the Illinois Attorney General’s Office should be authorized to enforce these rights on behalf of private parties. Require a one-page legal rights document (approved by the Access to Justice Division of the Illinois Supreme Court) be sent to petitioners along with every sealing order, outlining their rights and how to enforce them after a record is sealed. Appendix (Illinois Felony Expungement Access Barriers Survey, RRLG responses) See PDF. NOTES 1 Margaret Love & David Schlussel, The Many Roads to Reintegration: A 50-State Report on Laws Restoring Rights and Opportunities after Arrest or Conviction, Collateral Consequences Res. Ctr. (2020), https://ccresourcecenter.org/the-many-roads-to-reintegration/. 2 According to an analysis of the ISP criminal history record information, almost half (44%) of the 3.3 million living people arrested or convicted between 1979 and mid-2019 had records that reflected no disposition. See Never Fully Free: The Scale and Impact of Permanent Punishments on People with Criminal Records in Illinois, pp. 12-14, Heartland Alliance (June 2020), https://www.heartlandalliance.org/heartland-alliance-2020-poverty-report/. 3 Sealed records may be disseminated by the state police 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 . . . .” 20 Ill. Comp. Stat. 2630/13(a). This includes hospitals, schools, and other agencies dealing with vulnerable populations, and many other licensing entities. See also the Illinois Human Rights Act, which “does not prohibit” use of sealed felony records obtained under federal or state laws “that require criminal background checks in evaluating the qualifications and character of an employee or a prospective employee.” 775 Ill. Comp. Stat. Ann. 5/2-103(A).
- Collateral Consequences in Occupational Licensing Act (6/29/2018) - We've noted in recent posts the numerous states that, just in the past three or four months, have enacted broad occupational licensing reforms affecting people with a criminal record. Many of these new laws have been influenced by a model developed by the Institute for Justice (IJ), a libertarian public interest law firm that has been litigating and lobbying to reduce barriers to work for more than two decades. In turn, states like Indiana, Kansas, Tennessee and Wisconsin have built upon IJ's model to enact even more progressive schemes intended to ensure that people with the requisite professional qualifications will not be unfairly excluded based on a record of arrest or conviction. Now IJ has incorporated many of these progressive refinements into its original model licensing law, the Occupational Licensing Review Act (OLRA), and broken out the provisions relating to criminal records into a free-standing model act specifically directed at managing collateral consequences in the occupational licensing context, the new Collateral Consequences in Occupational Licensing Act (CCOLA). The CCOLA has the same key features as the original OLRA: It provides individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; It allows the individual to seek this determination at any time, including before investing in the required training necessary to otherwise qualify for the license, requires a written decision within 90 days, and limits what the agency may charge for this determination to $100; It limits the types of records that an agency may consider in a licensing decision to convictions of serious or violent crimes; It shifts the burden of proof to the agency to establish that a petitioner’s conviction is substantially related to the state’s interest in protecting public safety; It requires agencies to provide written reasons justifying denial of a license based on conviction in terms of public safety; and It requires each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action. In addition to these features, IJ has recently further clarified the types of criminal conduct that may be considered in licensing decisions, and specifically prohibited the use of vague criteria like "good moral character" as a basis for exclusion. As revised, IJ's model laws now provide that licensing agencies may not consider non-conviction records, juvenile adjudications, non-violent misdemeanors, and most felonies and violent misdemeanors that occurred more than three years prior to seeking licensure. See CCOLA, 100.02, Subd. 7. Agencies may consider violent felonies and sexual offenses at any time, although even these records must still be tested against the "public safety" standard: The board may deny the petition only if it establishes by clear and convincing evidence that: 1. The individual was convicted of a felony or violent misdemeanor, not excluded by subdivision 7, which is directly, substantially and adversely related to the state's interest in protecting public safety; and 2. The granting of state recognition will put the individual in a position where the individual is more likely than not to reoffend and cause harm. See CCOLA, 100.02, Subd 10(c). IJ's website points out that "[m]ore than 25 percent of workers need a government-issued license to work," so lowering barriers to licensure for people with a criminal record has important implications for efficiency and public safety. In introducing its stand-alone CCOLA model, IJ’s website states the following: An honest living is one of the best ways to prevent those with a criminal record from re-offending. But many occupational licensing laws block or burden ex-offenders from entering regulated fields. Numerous licensing laws have morality clauses that (1) bar automatically and permanently ex-offenders from working without any individualized review or (2) require the ex-offender to prove a negative—that the ex-offender’s past crimes will not cause him to harm customers in the future. Such provisions ironically may decrease public safety. States with prohibitions and high burdens on entry have higher criminal recidivism. Conversely, states that have no such bars and low burdens have seen declines in recidivism, according to Professor Stephen Slivinski’s landmark study Turning Shackles into Bootstraps. IJ’s website surveys some of the key provisions of many of the recently enacted state licensing reforms. It also very happily links to the relevant 50-state chart from the Restoration of Rights Project, which we very much appreciate! With an enrolled bill sitting on its governor's desk for action, New Hampshire is poised to become the 10th state to enact comprehensive licensing reform in 2018. In addition to Indiana, Kansas, Tennessee and Wisconsin, Arizona, Maryland, Massachusetts, Nebraska, and Wyoming have all just this year enacted new laws incorporating many of the features of IJ's model law. Illinois anticipated these states by six months when it significantly amended its licensing scheme to reflect IJ's approach in August 2017. We were pleased to be able to work with Lee McGrath of IJ’s office in Minneapolis in developing many of the amended features of the CCOLA, which have also been folded into IJ's broader model occupational licensing act. We look forward to continuing to work with Lee and his colleagues in months to come.
- New expungement legislation: Maryland and Oklahoma (5/8/2018) - The trend toward expanding expungement and sealing laws is continuing. In the last week of April, the governors of Maryland and Oklahoma signed bills enlarging eligibility criteria and reducing waiting periods, joining Florida and Utah with new record-sealing enactments in 2018. The provisions of these two newest laws are described below. Similar legislation is well along in Illinois, Pennsylvania, Tennessee and Vermont. Vermont S 173, enrolled and awaiting the governor's signature, is of particular interest since it makes expungement automatic in some categories without the requirement of a petition or filing fee ("unless either party objects in the interest of justice"). We are tracking these pending bills and will add them to the Restoration of Rights Project if and when they are enacted. Oklahoma: On April 26, 2018, Oklahoma Governor Mary Fallon signed into law SB 650, making felony offenders eligible for expungement (sealing) for the first time without requiring that they first be pardoned. Effective November 1, 2018, a person may apply to the court for expungement of a single nonviolent felony conviction 5 years after completion of sentence, if the person has not been convicted of any other felony or separate misdemeanor in the past seven (7) years, and if no felony or misdemeanor charges are pending. Okla. Stat. Ann. § 18(A)(12) (as amended by SB 650 (2018)). The 2018 law reduces the waiting period from 10 years to five; deletes a requirement that the person have no prior felonies, or any separate misdemeanor in the past 15 years; and omits a requirement that the person first be pardoned. Okla. Stat. Ann. § 18(A)(12), as amended. Oklahoma's additional provisions for expungement of misdemeanor convictions, non-conviction records, and pardoned felonies are explained in the Oklahoma profile from the Restoration of Rights Project. Maryland: On April 24, Governor Larry Hogan signed SB 101, adding felony offenses involving theft, drug trafficking and burglary to the list of more than 100 misdemeanors first made eligible for expungement in 2016. The waiting period for felonies is 15 years after completion of sentence, while most misdemeanants must wait 10 years. (Misdemeanors involving "domestically related crimes" and second degree assault are subject to a 15-year waiting period.) In addition, SB 101 eliminated the three-year waiting period previously applicable to expungement of non-conviction records, except for "probation before judgment" cases. The new provisions are explained in greater detail in the Maryland profile from the Restoration of Rights Project. Also in April 2018, the Maryland legislature acted favorably on a bill to require state licensing agencies to report by October 1, 2018 on the number of licenses granted or denied based on conviction in the past five years. The fact that HB 1597 has been awaiting Governor Hogan's action for more than a month does not bode well for its prospects. States that have enacted new general occupational licensing requirements this year include Indiana, Tennessee, Arizona, Wisconsin, Massachusetts and Nebraska, with an enrolled bill awaiting action in Kansas. These new laws are the subject of several recent posts (see, e.g., here and here) and are written up in detail in the relevant state profiles from the RRP.
- More states facilitating licensing for people with a criminal record (4/18/2018) - Last week we posted a description of a detailed new Indiana law regulating consideration of conviction in occupational and professional licensure throughout the state. It now appears that this may represent a trend, as eight additional states have either recently enacted or are poised to enact similarly progressive occupational licensing schemes. New general laws regulating licensure are in place in Arizona, Illinois, and Massachusetts. Similar bills have been enrolled and are on the governor's desk for signature in Kansas, Maryland, Nebraska, and Tennessee. Arizona's new 2018 licensing law follows on another law passed in that state in 2017 that authorized provisional licenses for individuals with a criminal record. Massachusett's new licensing law is part of a more general criminal justice reform bill. Delaware and Connecticut have also recently loosened restrictions on licensing for cosmetology and related professions. The licensing reforms in these states - and in several other states where licensing bills are less far along toward enactment -- seem to have been influenced by a model law proposed by the Institute for Justice, a libertarian public interest law firm. Key features of the Model Occupational Licensing Review Act as they affect individuals with criminal records are 1) to provide individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; 2) to require licensing agencies to disqualify only if an applicant has been convicted of a felony or violent misdemeanor, and if the agency determines that "the state has an important interest in protecting public safety that is superior to the individual's right to pursue a lawful occupation"; and 3) to require each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action. Disqualification is justified under this model law only if the conviction is "substantially related to the state's interest in protecting public safety," and the individual will be "more likely to reoffend by having the license than by not having the license." The federal government is also encouraging licensing reform: the U.S. Department of Labor is supporting a three-year project to assist states improve their general policies and practices related to occupational licensing, including those that affect persons with a criminal record. The project brings together 11 states to participate in the Occupational Licensing Learning Consortium. The 11 states are Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin. We are monitoring this legislative trend and will revise the state profiles and other materials in the Restoration of Rights Project as new laws are enacted.
- A closer look at Indiana’s expungement law (8/30/2017) - More than four years ago, Indiana's then-Governor Mike Pence signed into law what was at the time perhaps the Nation's most comprehensive and elaborate scheme for restoring rights and status after conviction. In the fall of 2014, as one of CCRC's very first posts, Margaret Love published her interview with the legislator primarily responsible for its enactment, in which he shared details of his successful legislative strategy. Later posts on this site reported on judicial interpretation of the law. Since that time, a number of other states have enacted broad record-closing laws, including Louisiana, Missouri, Nevada, New York, and most recently Illinois. We have been impressed by the evident enthusiasm for Indiana's "expungement" law within the state, from the courts, the bar, the advocacy community, and even from prosecutors. So we thought it might be both interesting and useful to take a closer look at how the Indiana law has been interpreted and administered, how many people have taken advantage of it, and how effective it has been in facilitating opportunities for individuals with a criminal record, particularly in the workforce. We also wanted to see what light this might shed on what has brought to the forefront of reform so many politically-conservative states. Spoiler alert: the Chamber of Commerce was one of the strongest proponents of the law. We expect to be able to post our account of the Indiana expungement law shortly after Labor Day. In the meantime, we thought it might be useful to reprint our 2014 interview with former Rep. Jud McMillan, which has been among our most viewed posts. Indiana's new expungement law the product of "many, many compromises" In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country. Under the new law, courts are empowered to "expunge" most criminal records, after waiting periods keyed to the seriousness of the offense. The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere. This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation. We recently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states. Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation. But in an age of bipartisan support for criminal justice reform, apparently anything can happen. Rep. McMillin told us how he was able to persuade his colleagues in the legislature by careful groundwork, and overcome opposition from prosecutors and courts by making what he described as "many, many compromises." One of the most important of those compromises was limiting use of criminal records rather than limiting public access to them, at least in the case of more serious offenses. Before letting Rep. McMillan describe in his own words how he secured passage of this relief scheme, here is a brief description of the law's most salient features. (A more detailed description can be found here.) All criminal records (except convictions involving serious violence, public corruption, and sexual offenses) are eligible for expungement from the court of conviction, after waiting periods ranging from one year (for non-conviction records) to ten years (for the most serious eligible felonies). After the court has issued an expungement order, records not resulting in conviction and records of misdemeanors and minor felonies are automatically sealed. After a record is sealed, even a prosecutor may not access it without a court order. Expunged records of more serious convictions "remain public," although they must be “clearly and visibly marked or identified as being expunged.” However, all expungement orders similarly limit the use to which a criminal record can be put, as described below. Expungement may be granted by the court without a hearing unless the prosecutor objects. Those filing for expungement of a conviction must pay the filing fees required for filing a civil action ($141), and this requirement may not be waived. Defendants are not permitted to waive the right to seek expungement as part of a plea agreement. A petitioner may seek to expunge more than one conviction at the same time, but may be granted expungement only once in his or her lifetime. If the first petition fails, there is a three-year waiting period before a person may reapply, and the only convictions expungeable are those in the original petition. It is unlawful discrimination for any person to refuse to employ or license a person because of a conviction or arrest record that has been expunged or sealed, and a person may not be questioned about a previous criminal record except in terms that exclude expunged convictions or arrests. Expunged convictions are not admissible as evidence of negligence in a civil action against a person who relied on the expungement order, and they may not be reported by credit reporting companies. The Attorney General may enforce the provisions relating to credit reporting companies through injunction and fines, and a private individual injured by a violation of these sections may recover damages, court costs and attorney fees. The Indiana courts have published a detailed explanation of the law and sample petitions for expungement that are tailored to the particular categories of eligible cases, to enable a person to seeking expungement without hiring a lawyer. * * * * * * * * * Here is our interview with Rep. McMillin: How did you get interested in the subject of criminal records? As a former prosecutor, and now someone who does some criminal defense work while serving in the legislature, I think I have seen the justice system from several sides. Also, as a fiscal conservative it just makes practical sense to me that when somebody has served their court-imposed sentence there has to be a pathway back into society for them. Without this, we can't expect them to become productive members of society. The Indiana Constitution requires our criminal justice system to be based upon the principles of reformation and not vindication. I firmly believe that our expungement law moves substantially in that direction. How did you build support for the concept of expungement among your colleagues in the legislature? This was a process that played out over several years. We proceeded in incremental steps, building on existing law and gaining supporters from various constituencies. We started by expanding an existing provision of the Indiana code that allowed courts to reduce a minor felony to a misdemeanor upon completion of the sentence, to allow people to come back after a waiting period to get the felony reduced, as long as they had no further charges. I thought if I could just start the conversation with a simple bill that did not involve more serious offenses I would be able to get people to see how detrimental having a felony conviction can be for someone who wants to get back into the work force. I took a practical approach, and was able to persuade some of my fiscally conservative colleagues that there can be economic benefits through the reduction of recidivism. After getting that initial language enacted I came back the next session to work on full expungement, and found that there was support on both sides of the aisle as many people were able to see the benefits. There were those who had general objections to the legislation, some for ideological reasons, some for practical reasons, but we were able to overcome all of them with solid logic when it came to debating this issue. We were even able to win over some of the prosecutors, enough that the opposition of the holdouts didn’t derail the legislation’s chances. One of the most effective supporters was the Indianapolis Chamber of Commerce, which helped me convince people that expungement could be beneficial to business owners and economy as a whole. Obviously there were a lot of compromises we had to make, and it's not hard to see what some of them were, like the lifetime limit to one expungement, the prohibition on seeking expungement of offenses committed after a petition has been denied, and the filing fee that is hefty for many. Certain violent and sexual offenses had to be excluded from coverage or it would have torpedoed the effort before we got it off the ground. It was sometimes difficult to give up some things just to get the bill passed, while still ending up with a law that actually made a difference. We were able to resist several offers to compromise that would have simply gutted the bill. We had to keep our eye on the core purposes of the legislation, which are to restore rights and give people a fair chance in the workplace and elsewhere. We will see how the law works. If some of the compromises we made need to be revisited, we can do that. In fact, in the 2014 session we made quite a number of reasonably minor adjustments in the law, notably to permit more government entities including licensing agencies access to sealed records. How were you able to defuse opposition from the prosecutors? Because I anticipated the prosecutors would be the main opponents, I reached out to them early in the process, and worked with the ones who were willing to consider the concept. Here again I took a practical view, asking if they really wanted people they had prosecuted to return to the system, or whether they wanted them to succeed. I had to persuade them that expunging a record did not reflect badly on the prosecution or create problems for law enforcement. While their ideas were substantially different than mine, I felt it was important to incorporate many of them, and so we were able to reach a middle ground. That is how we came to have a multi-tiered system, with limits on sealing for more serious offenses, a role for prosecutors in the expungement process, the possibility of unsealing in the event of a new crime, and a lifetime limit of one expungement. This is not to say that prosecutors across Indiana ended up supporting expungement. In fact many of them remain its most ardent opponents. However, asking for their input early and making them a part of the process instead of a constant and united opponent was instrumental in getting the job done. What about other sources of opposition or support? Many judges objected and some of the clerks were opposed to the additional work that the legislation would make for them. The credit reporting companies were also not happy but they did not mount any substantial resistance. As noted, the business community was surprisingly supportive. Many employers liked the protections afforded them in the bill -- including not being held responsible for information there were not permitted to have. Governor Pence was a supporter from the beginning. Early in his term he adopted a slogan that “Indiana should be the worst place to commit a crime, but the best place to get a second chance.” This slogan fit perfectly into the concept of this legislation. How has the law been working in its first year? Once the law was passed, the courts took a proactive role in carrying out their new responsibilities. They took it upon themselves to develop a variety of forms for different kinds of cases, and publish them on a website so that people could apply for expungement without the need to hire a lawyer. Legal services organizations have been spreading the word around the state, and are helping to clarify what appears to have been some initial confusion because of the law's complexity. There have been a few kinks, and as I said we have already passed several bills to make slight adjustments mostly of a procedural nature. I anticipate that there will more a few more tweaks this year. Thankfully the concept has been received wonderfully by the public so making the changes at this point is relatively easy and meets little resistance. Why is the relief called "expungement" if many records remain open to the public? I get this question frequently, and yes I agree it is a bit confusing to use a term that ordinarily implies some limits on access. The original concept was that an expungement order would seal all records except for law enforcement purposes. But that was not an approach that I could sell, in or out of the legislature, especially for more serious offenses. As the bill ended up with tiered approaches, there really was not a single term that fit the whole -- and as we studied what other states do, I am not even sure the term "expungement" has a single meaning. Also, even if a record is actually destroyed, it may be impossible to ever remove all evidence of it. In the end, I was convinced that "expungement" was the best term to use to ensure that people who need relief would take advantage of it. There's no doubt that most people believe that you only get a second chance if your record is clear in a literal sense. But even where a record is sealed, our law does not permit people to deny that they were arrested or convicted; rather, they cannot be asked about a record that has been expunged. In this way we were able to reconcile keeping the record open with the core concept of restoring rights. By limiting the use of a record we hope to clear away the cloud that these individuals have been living under. What advice do you have for legislators in other states and for advocates who want to try to develop a comprehensive scheme like Indiana's? To begin with, to pass a bill like this you have to have someone in a leadership role who really understands the inside and out of the criminal justice system, and who is willing to live and breathe this concept through the entire legislative process and see it all the way through to completion. You have to start the conversation very early, and learn patience. It takes a long time to convince people who may only have a passing interest (or no real interest at all) in something like this, and no personal experience with the justice system, to understand why it is a good idea and why they should take the perceived risk of supporting this concept. In the political world it is very easy for those who oppose this concept to get their hooks into legislators early by telling them that this is “soft on crime” and that it will damage them politically to support it. In order to combat this I think it is necessary for the legislator who is carrying the bill to spend one-on-one time sitting down with other legislators. While advocates are important and certainly should be recruited, I find that nothing is as persuasive as the legislators themselves discussing the concept. The other really important thing is to secure the support of the business community. You should also find examples of individuals who have been battling for years if not decades to be successful in society while carrying the weight of a criminal record. Their anecdotal testimony can be extremely powerful. I also recommend reaching out to those you anticipate will oppose the bill and asking them to help with the bill. If they are not on the inside helping they will be on the outside opposing. Even if the “help” they are giving is not always consistent with the concept you are trying to advance, you are still much better off having those people working with you on developing language than trying to kill any language that you come up with. It is helpful to defuse opposition if you couch the conversation in terms of the social and economic benefit to society rather than always talking about the benefit to the individuals who might seek expungement. It is very important to make people see that while our human compassion should want to give people a second chance, our duty is to be fiscally responsible to our constituents, and that for numerous reasons (recidivism, costs of incarceration, costs of providing welfare, public safety, etc.) this concept is the right one for all of our constituents. In the end, you really do have to be willing to compromise, recognizing that if you get the key concepts enacted you can always come back later and change the details.
- Illinois enacts boadest sealing law in Nation (8/25/2017) - On Fiday Illinois governor Bruce Rauner signed into law what appears to be the broadest sealing law in the United States, covering almost all felonies and requiring a relatively short eligibility waiting period of three years. We expect to provide a more in-depth discussion of the law next week from practitioners working on the ground in the state, and will soon update the Illinois Restoration of Rights Project profile to reflect these important changes. In the meantime, we share the following from Cabrini Green Legal Aid, which was among the organizations that helped push the legislation through. This afternoon, Governor Bruce Rauner signed into law six pieces of legislation that impact people with arrest and conviction records, including HB 2373 - the sealing expansion bill. This marks the LARGEST expansion of a sealing law in the United States and is a huge win in criminal justice reform. Effective immediately, this new law will provide thousands of people in Illinois the opportunity for criminal records relief by allowing them to petition the court to remove barriers in their lives as a result of their past criminal record. On behalf of our partners with the Restoring Rights and Opportunities Coalition of Illinois (RROCI),* Cabrini Green Legal Aid (CGLA) appreciates the support and involvement of so many of you who took action making phone calls, sending emails and traveling to Springfield. We are extremely grateful to the members of the RROCI coalition and CGLA’s Leadership Council and Visible Voices members who had a weekly presence in Springfield throughout the legislative session, using their voices in the halls of the capitol to humanize this issue and lead the effort. We facilitated 56 trips that required 14 hour commitments by the individuals advocating for this bill. Through leadership development, training and support, CGLA's goal is to engage those who are directly impacted by systemic change to lead advocacy and education around these issues. This will be a game changer for CGLA. Over the years, we have met thousands of individuals who did not qualify for sealing. Not only can we start saying YES to those seeking a better future, we can begin to spread hope and strengthen the lives of individuals and families throughout Illinois. If you want to be part of this effort, please join us! Attorneys can volunteer to help us prepare petitions for clients to seal their records and other volunteers can assist with communications to clients needing additional information about new legislation. Email volunteer@cgla.net Request a presentation from our Leadership Council in your community to help raise awareness about sealing expansion. Email advocacy@cgla.net Send people to our Help Desk that are now eligible, located at the Daley Center in Room 1006, open Monday through Thursday 9-12 and Thursday afternoon from 1-4. Make sure they obtain a copy of their criminal history reports from the Chicago Police Department (3510 S. Michigan), open 8-12, Monday through Friday. The cost is $16 and they should request their City and Illinois State Police reports. Thank you again for your support and advocacy on behalf of individuals, families and communities impacted by the collateral consequences of the criminal justice system! Today is indeed, a good day...
- New research report: Four Years of Second Chance Reforms, 2013-2016 (2/8/2017) - Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types. The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process. Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time. Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible. Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado's new "order of collateral relief" provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction. The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority. These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<
- Illinois health care licenses elude those with records (10/13/2016) - The Illinois legislature has been generally progressive in enacting measures to help people with a criminal record avoid being stigmatized for life. In 2003, as a state senator, President Obama sponsored one of the earliest of these measures, authorizing courts to grant certificates relieving collateral consequences. In 2011, however, Illinois took several steps backwards when it enacted legislation automatically barring some criminal record holders from ever working in a variety of licensed health care fields. The law has since become the subject of litigation and further legislation that leaves many would-be medical licensees to face an uncertain future. What follows is a description of the law’s enactment, subsequent court challenges, and potential legislative fixes. Background In the summer of 2010, the Chicago Tribune published a series of articles about doctors and other licensed health care professionals who had been convicted or accused of inappropriate sexual conduct involving their patients. Despite their misconduct, these individuals were still licensed to practice. The General Assembly’s response to the investigative series was swift. During the 2011 legislative session, lawmakers moved to amend the health care licensing code to apply an automatic lifetime bar to licensure for anyone convicted of the following offenses: 1) a battery or sexual offense against a patient during treatment or care; 2) a conviction mandating registration as a sex offender (which includes certain Class A misdemeanors that essentially involve consensual contact between minors); and 3) a “forcible felony.” The amendment did not provide a right to contest the decision to revoke or deny a license, through either a pre- or post-license revocation hearing. The amendment applied to both current and future license holders in fields such as licensed practical nurse, registered nurse, occupational therapist, speech pathologist, athletic trainer, optometrists, dental hygienists. See 68 Ill. Adm. Code 1130.110. The lifetime bar went into effect on August 20, 2011. See 20 ILCS § 2105/2105-165. Shortly thereafter the Illinois Department of Financial and Professional Regulation’s (IDFPR), the state’s largest licensing agency, began revoking the licenses of any health care worker convicted of a battery against a patient or a sex offense resulting in mandated sex offender registration. By October 2015, the IDFPR had revoked 110 licenses. Of that number, 11 involved crimes against a patient. In February 2013, the IDFPR issued regulations identifying what crimes were forcible felonies, the third category of prohibitive offense. Inexplicably, the IDFPR did not rely on the Illinois Criminal Code’s definition of “forcible felony,” choosing to draft its own. The IDFPR’s definition includes offenses that are not within the code’s definition while excluding others. For example, the IDFPR excluded the following offenses that are expressly included in the code’s definition: burglary, residential burglary, aggravated arson, and arson. At the same time, the IDFPR added offenses such as aggravated battery not resulting in severe bodily harm, possession of a deadly substance, and eight terrorism-related offenses (including making a terrorist threat, falsely making a terrorist threat, and causing a catastrophe) that are not expressly enumerated in the code. While those offenses may fall within the code’s catch-all provision (“‘Forcible felony’ means … and any other felony which involves the use of threat of physical force or violence against any individual.”), it is unclear why the IDFPR chose to single them out rather than adopting the statute’s more flexible definition. The IDFPR would later argue that it was not bound by the code’s definition since the 2011 law did not explicitly incorporate the code’s definition. Court Challenges Since its enactment, several licensed health care workers and license applicants have challenged the legality of the lifetime bar. The most significant ruling was issued by the Illinois Supreme Court in 2014. Lifetime Bar for Sex Offenses Against Patients Upheld In Hayashi v. IDFPR, 2014 IL 116023 (Oct. 17, 2014), three former health care licensees challenged the constitutionality of the lifetime bar after their licenses were revoked. All of the plaintiffs had been convicted of sexual offenses involving a patient within the past 14 years. On appeal, their cases were consolidated. The plaintiffs sought to overturn the bar on several grounds: procedural due process (no right to a pre-revocation hearing), substantive due process (deprivation of property and retroactive application), and res judicata. The Illinois Supreme Court upheld the lifetime bar. On the substantive due process issue, the Court explained: It is the responsibility of the legislature, not the courts, to balance plaintiffs' interests in the practice of their health care professions against the State's interests in regulating medical licenses and protecting the public. .... Section 2105-165 imposes mandatory revocation of health care licenses on plaintiffs based on their convictions of certain criminal offenses during the course of patient care or treatment. There is no question that the means chosen by the legislature is rationally related to the goal of protecting the public health, safety and welfare and is a valid exercise of the State's power to regulate health care professionals. It followed that the law provided adequate procedural due process by giving licensees 20 days (from the receipt of notice of the intent to revoke) to challenge the factual basis of the revocation by providing proof that they had not been convicted of a prohibitive offense. The Court explained: “Any additional procedures would add to the Department’s administrative and fiscal burdens with no added benefit to plaintiffs.” The Court did not decide if the licensing bar amounted to an unconstitutional ex post facto law; nor was the Court was not asked to determine if the lifetime bar was constitutional as applied to individuals whose criminal conduct did not involve a patient or sex crime, or had occurred years earlier. Forcible Felony Bar Struck Down In early August, a Cook County circuit court judge ruled that the 2011 law’s forcible felony bar was unconstitutional on its face, while also striking down the IDFPR’s definition of forcible felony. Anderson v. IDFPR, No. 16 CH 2611 (Ch. Ct., Aug. 19, 2016). The plaintiff in Anderson was denied an LPN license on the basis of a 20-year-old conviction for aggravated battery to a police officer. She was 20 years old when she was arrested. Under the Criminal Code, aggravated battery does not expressly qualify as a forcible felony unless the physical contact causes the victim to suffer “great bodily harm or permanent disability or disfigurement.” 720 ILCS 5/2-8. In other words, while aggravated battery is always classified as a felony it is not always classified as a forcible felony. The plaintiff in Anderson argued that her application should not have been denied because her conviction did not meet the Criminal Code’s definition of a forcible felony. The IDFPR disagreed, stating that it was not bound to apply the code’s definition, and was free to create its own more expansive definition The court sided with the plaintiff, holding that the IDFPR exceeded its statutory authority when it failed to rely on the code’s forcible felony definition. The court explained that since the law did not provide any indication to the contrary, the term must be understood to refer to its settled legal definition – the one contained in the Criminal Code. The court went on to hold that the forcible felony bar was unconstitutional on its face because the legislature failed to identify the harm it sought to prevent by barring everyone convicted of a forcible felony. In delivering the ruling, the judge noted, “There is no question that in enacting [the 2011 law], the laudable legislative intention was to protect the public from health care workers who have been convicted of sex crimes,” and distinguished the case from Hayashi, which dealt with an as applied challenge by licensees that were subject to the bar because of sex crimes against patients, not forcible felonies. In September, the court denied the IDFPR’s motion to reconsider. The ruling has been stayed while the IDFPR prepares to appeal the decision to the Illinois Supreme Court. A Legislative Fix? The broad consequences of the 2011 law first surfaced in 2013, when the IDFPR began revoking/denying licenses based on forcible felony convictions that fell within its own regulatory definition. These were crimes that did not involve a patient and were not sexual in nature. In some cases, the crime occurred when the applicant was a teenager. In 2014, one state senator introduced legislation that would reinstate the right to a hearing to contest some of the IDFPR’s revocation and denial decisions based on forcible felonies. But it was not until August of this year that legislation was finally enacted to address some of the problems with the law’s forcible felony bar. That legislation, Public Act 99-0886, is slated to take effect on January 1, 2017. Unfortunately, P.A. 99-0886 does not go far enough to resolve all of the problems the 2011 law created. Instead of eliminating the forcible felony bar, it substitutes a five-year mandatory bar (or three years from release from confinement, whichever is greater) for the mandatory lifetime bar. After the mandatory bar expires, an applicant or person whose license was revoked may petition for licensure or reinstatement. In determining whether to grant or reinstate the license, IDFPR must consider 15 factors, including the seriousness of the offenses, motive, contrition, the date of conviction, and disciplinary history. The Act does not otherwise affect the forcible felony bar. Procedurally, it is unclear who will be responsible for reviewing these petitions. Normally, the job of reviewing applications for licensure rests with the licensing board, whose appointed members work in the profession. Currently, however, it is the IDFPR, not the licensing board, who has been revoking and reviewing applications of those impacted by the 2011 law. P.A. 99-0886 provides little guidance in answering this question. It merely provides that the “Department” shall evaluate these applications. Only time will tell if the IDFPR intends to continue excluding health care licensing boards from the applicant review process. Adding further confusion and uncertainty is what impact the Anderson ruling will have on whether P.A. 99-0886 will take effect on January 1, 2017. Though the Act makes changes to the nature of the forcible felony bar, it does not address the fundamental problem identified in Anderson -- the fact that the 2011 law did not identify the harm that the forcible felony bar was intended to prevent. Against this backdrop, health care worker licensing in Illinois could remain in limbo for several more years – blocking the professional aspirations of many hardworking citizens. For more information on relief from collateral consequences in Illinois, visit the CCRC's Illinois state profile here.