Restoration of Rights & Record Relief
Last updated: July 31, 2021
I. Loss & restoration of civil/firearms rights
The right to vote is lost upon conviction of a felony if sentenced to imprisonment; it is regained upon release. See Ill. Const. art. III, § 2 (“A person convicted of a felony, or otherwise under sentence in a correctional institution or jail, shall lose the right to vote, which right shall be restored not later than upon completion of his sentence.”). (Note that disenfranchisement extends to misdemeanants sentenced to a prison term.) The election code provides that the right to vote shall be restored upon release from confinement. 10 Ill. Comp. Stat. Ann. 5/3-5; see also 730 Ill. Comp. Stat. Ann. 5/5-5-5(c).
Facilitating voting by prisoners: In 2019, Illinois enacted two laws related to voting. The Re-Entering Citizens Civics Education Act (HB2541) provides for peer-led programs to teach civics to prisoners who are soon to be released. SB2090 directs authorities to provide information about voting to people in jails and prisons, including upon release from prison of a person whose voting rights have been restored, information about their eligibility to vote and a voter registration application. It also facilitates voting by mail for eligible persons detained in county jails in smaller counties, and establishes polling places in county jails in larger counties. In 2021 another law was passed requiring DOC to give prisoners prior to release information about voter registration and authorized DOC to “enter into an interagency contract with the State Board of Elections to participate in the automatic voter registration program and be a designated automatic voter registration agency under the Election Code.” 730 ILCS 5/3-14-1. HB3653.
The right to hold an office created by the state constitution (e.g., any of the five statewide offices — governor, lieutenant governor, secretary of state, treasurer, attorney general; a member of the state General Assembly; a judgeship; a chief education officer position and a member of the state board of education) is lost upon conviction, but automatically restored upon completion of sentence (excepting convictions for crimes involving election fraud). 730 Ill. Comp. Stat. Ann. 5/5-5-5(b). The bar is permanent for “other elected offices,” including alderman and mayor, unless restored to this right by a pardon “or has received a restoration of rights from the Governor.” 65 Ill. Comp. Stat. Ann. 5/3.1‑10‑5(b); 10 Ill. Comp. Stat. Ann. 5/29-15.1 The disparate standards applied to municipal and legislative offices have been upheld by the Illinois courts.2
Illinois law does not exclude convicted persons from jury service, nor is a prior conviction grounds for a juror challenge for cause, though jurors must be “[f]ree from all legal exception, of fair character, of approved integrity, [and] of sound judgment.” 705 Ill. Comp. Stat. Ann. 305/2; see John F. Decker, Collateral Consequences of a Felony Conviction in Illinois, 56 Chi.-Kent L. Rev 731, 741 (1980) (stating that whether a convicted person meets character standard must be decided on a case-by-case basis).
Firearm rights are lost upon a felony conviction or juvenile adjudication/misdemeanor, 720 Ill. Comp. Stat. Ann. 5/24-1.1(a), and may be restored by the Department of State Police or by the circuit court where the person resides. 430 Ill. Comp. Stat. Ann. 65/10(a), (c). Relief may be granted if: (1) the applicant has not been convicted of a “forcible felony” within the preceding 20 years or 20 years have passed since release from imprisonment for that offense; (2) he is not “likely to act in a manner dangerous to public safety;” and (3) restoration of firearm rights. would not be “contrary to the public interest.” 430 Ill. Comp. Stat. Ann. 65/10(c). Individuals may appeal a denial to the Director of State Police unless their conviction involves violence (including domestic violence), drugs or firearms, in which case rights may be restored only by the court. Id.
A person with a felony conviction may not serve as executor of a will or administrator of an estate. 755 Ill. Comp. Stat. Ann. 5/6-13(a), 5/9-1; see In re Estate of Muldrow, 799 N.E.2d 497, 502-03 (Ill. App. Ct. 2003) (concluding that rational basis exists under the Probate Act for excluding persons convicted of a felony from serving as executors based on demonstrated inability to act within the confines of law, even if the felony conviction, “as applied” in particular case, is remote in time and the person is able to demonstrate rehabilitation).
The Code of Corrections provides that “[o]n completion of sentence of imprisonment or upon discharge from probation, conditional discharge or periodic imprisonment, or at any time thereafter, all license rights and privileges granted under the authority of this State which have been revoked or suspended because of conviction of an offense shall be restored unless the authority having jurisdiction of such license rights finds after investigation and hearing that restoration is not in the public interest.” 730 Ill. Comp. Stat. Ann. 5/5-5-5(d). This provision does not apply to the suspension or revocation of a license to operate a motor vehicle. However, other more specific laws restrict licensure for certain professions. For example, the Child Care Act bars licensure and employment of individuals in child care facilities when they have been convicted of any of a long list of enumerated offenses. 225 Ill. Comp. Stat. Ann. 10/4.2. Moreover, the Illinois Vehicle Code makes conviction of any of a long list of enumerated offenses a bar to licensure as a school bus driver. 625 Ill. Comp. Stat. Ann. 5/6‑106.1(a)(11).
G. Juvenile adjudications
Juvenile adjudications or dispositions do not “operate to disqualify a minor from subsequently holding public office nor shall operate as a forfeiture of any right, privilege or right to receive any license granted by public authority.” 705 Ill. Comp. Stat. Ann. 405/5-410.
H. Compilation of Collateral Consequences
Illinois Public Act 96-0593, originally signed in 2009 and amended in 2012 (20 Ill. Comp. Stat. Ann. 5000), created a Task Force on Inventorying Employment Restrictions and called for the work to be conducted within the Illinois Criminal Justice Information Authority. The legislation provides that the Task Force “review the statutes, administrative rules, policies, and practices that restrict employment of persons with criminal history and report its findings and recommendations to the Governor and General Assembly by July 1, 2013.” On June 28, 2013 the Task Force announced online access to the Final Report of the Task Force on Inventorying Employment Restrictions. This report may be viewed and downloaded at www.icjia.org/IERTF2013.
II. Pardon policy & practice
The pardon power is vested in the Governor, although “the manner of applying therefore may be regulated by law.” Ill. Const. art. V, § 12. By statute, the Prisoner Review Board (PRB) serves as “the board of review and recommendation for the exercise of executive clemency by the Governor.” 730 Ill. Comp. Stat. Ann. 5/3-3-1(a)(3). The Board “shall hear and . . . decide all requests for pardon, reprieve or commutation, and make confidential recommendations to the Governor.” 5/3-3-2(c). At the same time, “[n]othing in this Section shall be construed to limit the power of the Governor under the constitution to grant a reprieve, commutation of sentence, or pardon.” 5/3-3-13(e). The Supreme Court of Illinois has ruled that the constitution does not give the legislature authority to limit the Governor’s power to act in the absence of an application, and that in any event the legislature has not done so. People ex rel. Madigan v. Snyder, 804 N.E. 2d 546, 588 (Ill. 2004). The Seventh Circuit Court of Appeals has ruled that there is no Fourteenth Amendment property or liberty interest in obtaining a pardon in Illinois; the statutory pardon procedure does not require prompt or indeed any action by the governor, but merely describes steps in the sequences of procedures in clemency matters. Bowens v. Quinn, 561 F.3d 671, 673-75 (7th Cir. 2009).
In 2021 the legislature also recognized the governor’s authority to restore rights to an individual with a federal conviction, specifically in the context of restoring eligibility for municipal office. See note 1, supra.
PRB consists of 15 members appointed by the Governor to six year terms, with the advice and consent of the Senate. 730 Ill. Comp. Stat. Ann. 5/3-3-1(b), (c). No more than 8 of the same party may be on the board. The chair is to be appointed by the Governor. Id. Six-year terms, members serve full-time and may not do anything else. Id. The Board is charged with the duty to “hear by at least one member” and decide by at least a panel of three members all requests for pardon. 5/3-3-2(a)(6).
No eligibility requirements for Illinois convictions. Misdemeanants may also apply. Persons with federal offenses and those convicted in another state are ineligible.
“[A] pardon removes the penalties and disabilities (resulting from the conviction) and restores the [individual] to all his civil rights.” People v. Glisson, 358 N.E.2d 35, 38 (Ill. App. Ct. 1976), aff’d in part, rev’d in part on other grounds, 372 N.E.2d 669 (Ill. 1978). This includes firearms rights, which have been held to be a “civil right” under state law. See Johnson v. State Police, 161 N.E. 3d 161 (Ill. 2021). A pardon authorizes judicial expungement if provided in the terms of the pardon. 20 Ill. Comp. Stat. Ann. 2630/5.2(e); see People v. Thon, 319 Ill. App. 3d 855, 859-60 (2001). In 2023, Name change may be granted to someone convicted of a felony only if the conviction has been pardoned. 735 ILCS 5/21-101
730 Ill. Comp. Stat. Ann. 5/3-3-13. Guidelines for applying are available at http://www.illinois.gov/prb/Documents/exclemguide%204.3.13.pdf. A sample application form is available at http://www.illinois.gov/prb/Documents/sample%20petition%204.1.15.pdf. According to the Board’s website,
Incomplete petitions must be completed within 90 days or that [sic] are discarded. A late, but completed, petition is placed on the next available hearing docket. The petitioner is also afforded the opportunity to have a public or a non-public hearing. The Board’s recommendations are typically forwarded to the Governor within 60 days following the hearing. The Governor is not under any deadline to respond to the petition.
http://www.illinois.gov/prb/Pages/prbexclemex.aspx. See Bowens v. Quinn, 561 F.3d 671, 673 (7th Cir. 2009), cert. denied, 130 S. Ct. 470 (2009) (holding that where petitioners claimed that a governor’s failure to act on their clemency petitions within a reasonable time violated their rights under the Due Process Clause, their suit should have been dismissed because there was no Fourteenth Amendment interest in obtaining a pardon). “Notice of the proposed application shall be given by the Board to the committing court and the state’s attorney of the county where the conviction was had.” 730 Ill. Comp. Stat. Ann. 5/3-3-13(b). The Board is required to meet to consider clemency petitions at least four times each year. 5/3-3-13(c). “The Board shall, if requested and upon due notice, give a hearing to each application, allowing representation by counsel, if desired, after which it shall confidentially advise the Governor by a written report of its recommendations which shall be determined by majority vote.” Id. All cases are sent to the governor with a recommendation. Id. The statute expressly provides that “[n]othing in this Section shall be construed to limit the power of the Governor under the constitution to grant a reprieve, commutation of sentence, or pardon.” 5/3-3-13(e).
F. Gubernatorial restoration of rights
In Walker v. Agpawa, 2021 IL 127206 (August 26, 2021), the Supreme Court of Illinois unanimously held that the governor has authority to restore state law rights to individuals with federal and out-of-state convictions, at least in the context of qualification to stand for municipal office. See id. para. 24 (“We hold that Governor Rauner’s untitled document restored all of Agpawa’s Illinois rights of citizenship, including the right to hold municipal office, and he was eligible to be mayor of Markham.”). See discussion in note 1, supra.
G. Frequency of grants
Governor Pritzker issued 24 regular pardons during his first year in office (1/2019-12/2019), and another 10 in the first eight months of 2020, all pursuant to recommendations from the Prisoner Review Board. He also approved pardons for 11,017 marijuana possession convictions pursuant to authority passed earlier in 2019. See Part III, below. In August 2019, Governor Pritzker pardoned a U.S. Army veteran who had been deported to Mexico after Governor Rauner declined to pardon him. See https://www2.illinois.gov/sites/prb/Pages/prb15anlrpt.aspx. However, since early in 2020, Governor Pritzker has concentrated his clemency efforts on commuting sentences of prisoners in danger from the pandemic.
When he left office after four years in January 2019, Governor Bruce Rauner had granted 110 pardons and denied more than 2500 applications, a less generous pardoning policy than his predecessor Pat Quinn, but one that left no backlog of cases for his successor J.B. Pritzker. Two years earlier he had eliminated a backlog of pardon cases dating back to Governor Blagojevich’s tenure. See Gregory Platt, Rauner clears clemency backlog, approves just 3 percent of petitions, http://www.chicagotribune.com/news/ct-rauner-clemency-backlog-denials-met-20161212-story.html.
In Quinn’s nearly six years in office starting in April 2009, he granted 1,789 pardons (including two for innocence) and denied 3,133 requests, a nearly 37 % approval rate. Stacy St. Clair, et al., In last days as governor, Quinn grants clemency to 232 petitioners, Chicago Tribune, http://www.chicagotribune.com/news/ct-quinn-clemency-grant-20150109-story.html (Jan. 9, 2015). He also authorized 21 people who had previously received pardons to seek expungement of their convictions, and granted seven sentence commutations. A large number of Quinn’s grants went to people who applied for pardon in 2002-2007 when Governor Blagojevich was in office. (Governor Blagojevich granted only 65 pardons during his six years in office, most of them during his first two years, and left more than 2500 PRB recommendations unacted upon when he left office). Since April 2009, the PRB has sent forward more than 3000 additional recommendations. The average size of the Board’s quarterly clemency docket has risen from 35 petitions in 1990 to approximately 200 petitions in 2013. About one third of all applications are filed by misdemeanants. Source: Illinois Prisoner Review Board. See also PRB website, http://www2.illinois.gov/prb/Pages/prbexclemex.aspx.
H. Pardon of marijuana convictions
Pardon was given a role under Illinois’s 2019 marijuana legalization act, HB1438, for expungement of marijuana misdemeanor convictions. See Ill. Comp. Stat. Ann. 2630/5.2. See below for a description of the three-tiered process, whereby non-conviction records were automatically expunged by the State police; less serious misdemeanors were identified by the State police and sent to the Prisoner Review Board for processing and submission to the governor; and those with more serious cannabis convictions required to petition the court. In December 2019, Governor Pritzker pardoned 11,017 misdemeanor convictions that had been identified by the State police as eligible for expungement under the new law. See https://www.upi.com/Top_News/US/2019/12/31/Illinois-governor-grants-11000-pardons-for-low-level-cannabis-convictions/3581577849769/.
Chief Legal Counsel
IL Prisoner Review Board
319 East Madison Street, Suite A.
Springfield, IL 62703
III. Expungement, sealing & other record relief
The strengths and weaknesses of Illinois sealing law, including eligibility criteria and applicable procedures, are analyzed in Beth Johnson et al., Access Barriers to Sealing of Felony Convictions in Illinois: A Close Look at Law and Practice (February 2021).
Public Act 96-0409 (August 8, 2009) amended the Criminal Identification Act, 20 Ill. Comp. Stat. Ann. 2630/0.01 et seq. Notably, the law added a new section entitled “Expungement and Sealing.” 2630/5.2.3
The Office of the State Appellate Defender is partnering with the Access to Justice Commission to prepare and distribute legally correct and user-friendly forms for adult sealing and expungement that will be accepted in every courthouse throughout Illinois. See the resources that are available at this link: https://www2.illinois.gov/osad/Expungement/Pages/Expungement-and-Sealing-General-Information.aspx
The term “expunge” means “to physically destroy the records or return them to the petitioner and to obliterate the petitioner’s name from any official index or public record, or both.” 20 Ill. Comp. Stat. Ann. 2630/5.2(a)(1)(E). However, “nothing in this Act shall require the physical destruction of the circuit court file, but such records relating to arrests or charges, or both, ordered expunged shall be impounded . . .” Id.
Non-conviction records: Records that may be “expunged” are described in 2630/5.2(b), and include arrests that resulted in no charges, acquittal or dismissal; and convictions “set aside on direct review or on collateral attack and the court determines by clear and convincing evidence that the petitioner was factually innocent.” Notwithstanding the definition of “expunge” above, records of drug offenses disposed of through diversion programs may be maintained by the state police. 2630/5.2(b)(7). If a person has a prior conviction of any sort, “the State’s Attorney may object to the expungement on the grounds that the records contain specific relevant information aside from the mere fact of the arrest.” 2630/5.2(b)(1.5).4 There is no waiting period for charges that are dismissed or acquitted, and a short waiting period when the arrest sought to be expunged resulted in an order of supervision, successfully completed by the petitioner. 2630/5.2(b)(2)
See also “Immediate sealing of non-conviction records,” below.
Pardoned convictions: The only convictions that may be expunged are those that have been pardoned (if the pardon document authorizes expungement), and the term “expunge” in this context does not mean physical destruction of the record. See 2630/5.2(e):
(e) Whenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes expungement, he or she may . . . have a court order entered expunging the record of arrest from the official records of the arresting authority and order that the records of the circuit court clerk and the Department be sealed until further order of the court . . . . All records sealed by the Department may be disseminated by the Department only to the arresting authority, the State’s Attorney, and the court upon a later arrest for the same or similar offense or for the purpose of sentencing for any subsequent felony. Upon conviction for any subsequent offense, the Department of Corrections shall have access to all sealed records of the Department pertaining to that individual.
The term “seal” means “to physically and electronically maintain the records . . . but to make the records unavailable without a court order, subject to [certain] exceptions,” and to “obliterate” the person’s name from the official index required to be kept by the circuit court clerk. 20 Ill. Comp. Stat. 2630/5.2(a)(1)(K).
As of August 2017, most misdemeanor and felony convictions are eligible for “sealing” upon petition three years after termination of the person’s “last sentence” (whether or not sealing is sought for that conviction). 2630/5.2(c). There is no waiting period in felony cases where the person earned “a high school diploma, associate’s degree, career certificate, vocational technical certification, or bachelor’s degree, or obtained [a GED]” during the period of the sentence. 2630/5.2(c)(3)(E). Ineligible offenses include DUI, sex crimes, animal care crimes, and domestic battery. 2630/5.2(a)(3). Individuals subject to registration under the following laws remain ineligible until removed from the registry: the Arsonist Registration Act, the Sex Offender Registration Act, and the Murderer and Violent Offender Against Youth Registration Act. 2630/5.2(c)(3)(C). Several deferred adjudication authorities involving “qualified probation” for minor drug crimes are also eligible for sealing after a waiting period of two to five years (see discussion of Section 1410 Probation and Second Chance Probation below). There is no waiting period for cases involving dismissal without charge or acquittal.
Subsequent convictions: A person may seek to have multiple convictions sealed in the same proceeding. However, any felony offense committed after the date of the sealing may not be sealed. In addition, the court may, upon conviction for a subsequent felony offense, order the unsealing of prior felony conviction records previously ordered sealed by the court. 2630/5.2(c)(4)
Notice of eligibility for sealing: Upon entry of a disposition for an eligible record under the sealing authority, the petitioner shall be informed by the court of the right to have the records sealed and the procedures for the sealing of the records. 2630/5.2(c)(5). Illinois practitioners report that many courts do not provide such notice, and that there appears to be no mechanism to enforce this obligation.
C. Procedure and standards
The same procedure applies to expungement and sealing. 20 Ill. Comp. Stat. 2630/5.2(d). Procedure includes notice to DA, and a hearing upon objection filed. 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. In deciding whether to seal or expunge records, judges may consider specific collateral consequences the individual is facing, the person’s age and employment history, and the strength of the evidence supporting the conviction. 2630/5.2(d)(7).5 In a high profile 2019 case in which the defendant (a former police officer) was acquitted, the judge denied both expungement and sealing based on public safety considerations, applying the procedures applicable under 20 Ill. Comp. Stat. 2630/5.2(d). See Associated Press, Judge refuses to expunge record of officer in fatal shooting, Nov. 20, 2019, https://www.dailypress.com/sns-bc-us–police-officer-manslaughter-record-20191119-story.html.
Payment of fines and fees: Effective August 2018, the court may not deny a sealing or expungement petition because the petitioner has not satisfied an outstanding financial obligation established, imposed, or originated by a court or unit of local government, including fines and fees. “An outstanding legal financial obligation does not include any court ordered restitution to a victim under Section 5-5-6 of the Unified Code of Corrections, unless the restitution has been converted to a civil judgment.” Ill. Comp. Stat. Ann. 2630/5.2(d)(6)(C).
Drug test prerequisite for relief: Under Ill. Comp. Stat. Ann. 2630/5.2(d)(3), an application for sealing or expungement must be accompanied by proof that the applicant has taken a drug test within 30 days before filing the petition. Effective in 2022, this provision was amended to omit any requirement that the applicant “has passed” this test. In addition, the new law provided that the court may not deny a petition for expungement or sealing because the test indicates a positive test for the presence of cannabis within the petitioner’s body. See HB4392, adding 2630/5.2(d)(6)(D).
D. Immediate sealing for victims of human trafficking
Effective August 3, 2018, victims of human trafficking “shall be eligible to petition for immediate sealing of his or her criminal record upon the completion of his or her last sentence if his or her participation in the underlying offense was a direct result of human trafficking under Section 10-9 of the Criminal Code of 2012 or a severe form of trafficking under the federal Trafficking Victims Protection Act.” Ill. Comp. Stat. Ann. 2630/5.2(h).
E. Immediate sealing of non-conviction records
Effective January 2018, sealing of records of arrests and charges resulting in acquittal or dismissal may be sought by petition at the dispositional hearing. 2630/5.2(g) (enacted by HB-514 (2017)). This authority is distinct from the non-conviction expungement authority discussed above and is not subject to the same limitations on eligibility or the procedures that apply either to expungement or to the general sealing authority. 2630/5.2(g)(1). Only minor traffic offenses are ineligible (unless the petitioner was arrested and released without charges). 2630/5.2(g)(2) & (a)(3)(B). The immediate sealing petition may be filed with the circuit court clerk during the hearing in which the final disposition of the case is entered, and a copy must be filed with the State’s attorney in open court. “The presiding trial judge shall enter an order granting or denying the petition for immediate sealing during the hearing in which it is filed.” 2630/5.2(g)(5). As under 2630/5.2(d), a judge has discretion to deny sealing.
F. Expungement of marijuana offenses
Automatic and petition-based expungement: In June 2019, HB1438 authorized the automatic expungement of arrests and convictions for “minor cannabis offenses,” defined as involving not more than 30 grams, no enhancements and no violence. Ill. Comp. Stat. Ann. 2630/5.2(i). The definition is added to 2630/5.2(a)(1)(G-5). It also authorized petition-based expungement for misdemeanors and Level 4 felonies involving a greater amount of marijuana, by the individual affected or by the State’s Attorney.
Non-conviction records: The State Police and other law enforcement agencies are directed to “automatically expunge” the record of arrests one year after the date of the arrest, if no charges were filed or were filed and subsequently vacated, or if the person was acquitted. If the police are unable to determine disposition, they must expunge the arrest. See Timeline established for automatic expungement: post 2013 arrests to be expunged by 1/1/2021, those between 2000 and 2013 by 1/1/23, and those prior to 2000 by 1/1/2025. See Ill. Comp. Stat. Ann. 2630/5.2(i)(1).
Marijuana conviction records: A tiered procedure is established whereby “minor cannabis offenses” are subject to expungement through a pardon authorizing expungement, administered through the Prisoner Review Board, while more serious marijuana offenses (misdemeanor and Class 4 felony) are potentially expungeable by petition to the court.
For convictions in the first category, the State Police must notify the Prisoner Review Board of convictions not associated with violence, the PRB in turn notifies the relevant State’s Attorney who may object on eligibility grounds only, and the PRB makes a confidential recommendation to the governor. When the governor has granted a pardon authorizing expungement, the PRB files with the court asking for expungement of the record. The court is responsible for notifying the individual at his or her last known address. See Ill. Comp. Stat. Ann. 2630/5.2(i)(2).
For marijuana offenses in the second category (misdemeanor and Class 4 felony), individuals must file a petition with the court, and expungement may be granted after the court applies a balancing test. An individual may file “after completion of any non-financial sentence or non-financial condition imposed by the conviction.” State’s Attorneys are also authorized to file petitions to vacate and expunge the record of conviction. Civil legal aid organizations may file petitions including more than one name. In considering motions to vacate and expunge a conviction the court shall consider the reasons to retain the records, the person’s age, the person’s age at the time of conviction, and the specific adverse consequences if denied. Ill. Comp. Stat. Ann. 2630/5.2(i)(3)-(5).
G. Expungement of prostitution offenses
In 2021, Illinois enacted a process by which individuals convicted of Class 4 felony prostitution offenses may file for expungement through a process and pursuant to standards similar to the one applicable to expungement of marijuana misdemeanors and Class 4 felonies. See Public Act 102-0639;Ill. Comp. Stat. Ann. 2630/5.2(j)The standards are the same, and a state’s attorney or civil legal aid organization may also file. Ill. Comp. Stat. Ann. 2630/5.2(j).
H. Effect of expungement and sealing in employment and licensing
With certain exceptions, an expunged or sealed record “may not be considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration.” 20 Ill. Comp. Stat. 2630/12(a). Exceptions are law enforcement agencies, State’s Attorneys, prosecutors, Department of Corrections. Id. Applications for employment “must contain specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest,” and “[e]mployers may not ask if an applicant has had his/her record expunged or sealed.” Id. Sealed records must be retained by the state police, and may be disseminated only to law enforcement, or (for felony convictions only) “as otherwise specifically required or authorized by a federal or State law, rule, or regulation that requires inquiry into and release of criminal records. . . .” 2630/13(a). This includes hospitals, schools, and other agencies dealing with vulnerable populations, and many other licensing entities. See also the Illinois Human Rights Act, discussed in Part III, which “does not prohibit” use of sealed felony records obtained under federal or state laws “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). (Since expungement results in destruction or “impoundment” of the record, provisions limiting the use of expunged records seem redundant.)
I. Judicial certificate of discharge
Upon discharge from incarceration or parole or probation, “or at any time thereafter, the committing court may enter an order certifying that the sentence has been satisfactorily completed when the court believes it would assist in the rehabilitation of the person and be consistent with the public welfare.” 730 Ill. Comp. Stat. Ann. 5/5-5-5(e). Such order “may be entered upon the motion of the defendant or the State or upon the court’s own motion.” Id. “Upon entry of the order, the court shall issue to the person in whose favor the order has been entered a certificate stating that his behavior after conviction has warranted the issuance of the order.” 5/5-5-5(f).
J. Diversion for first felony offenders
Second Chance Probation: Effective January 1, 2014, a new provision 730 Ill. Comp. Stat. Ann. 5/5-6-3.4 permits persons charged with minor non-violent drug, fraud or theft felony offenses, who have not previously been convicted of a felony, or of a violent offense, to be placed on probation for a period of two years, under conditions intended to promote rehabilitation (seek employment, obtain education, perform community service, etc.). Both the individual and the prosecutor must agree. Upon successful completion of probation the charges will be dismissed and “a discharge and dismissal under this Section is not a conviction for purposes of this Code or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime,” though it may be used in subsequent criminal proceedings. 5/5-6-3.4(g).
Offender Initiative program: This is a similar program open to individuals with no prior felonies and charged with a variety of non-violent offenses. 730 Ill. Comp. Stat. Ann. 5/5-6-3.3.
Both of these dispositions are considered “qualified probation” for purposes of expungement under 20 Ill. Comp. Stat. Ann. 2630/5.2(b)(1)(B)(i) and (iv), (b)(2)(C) (eligibility after 5 years).
K. Deferred adjudication for first-time drug offenders
Under 720 Ill. Comp. Stat. Ann. 570/410 (formerly “section 1410”), the court may defer adjudication for first-time drug offenders, and place them on 24-months probation with various conditions of reporting and treatment. Upon successful completion of probation, the person is discharged and the proceedings dismissed. 570/410(f). “[D]ischarge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime,” though it may be used in subsequent criminal proceedings. 570/410(g), (i). However, the provisions governing resentencing after revocation of probation apply to revocations under this section even though revocation occurs prior to conviction, as the criminal code’s reference to “conviction” is not simply to the entry of a record judgment but to a determination of guilt. People v. Goetz, 327 N.E.2d 516, 518 (Ill. App. Ct..1975). Other deferred adjudication provisions for marijuana are in 550/10 (formerly “section 710”).
Dispositions under both sections shall be treated as a “qualified probation” for purposes of expungement under 20 Ill. Comp. Stat. 2630/5.2(b)(1)(B)(i) and (iv), (b)(2)(C) (eligibility after five years).
L. Drug Court, Veterans, and Mental Health Treatment programs
Statutes authorizing drug court treatment and mental health court treatment were expanded in 2022 to allow those with prior violent offenses to apply after five years (reduced from 10 years) and those who had benefitted from programs previously to benefit again. See SB 2565. This law substantially reworked Illinois’ system for problem-solving courts in recognition of the key role that substance abuse and mental illness play in extending the reach of the criminal law system, to divert more people into programs that are intended to leave them without a publicly available criminal record.
M. Juvenile records
“All juvenile records which have not been expunged are sealed and may never be disclosed to the general public or otherwise made widely available.” 705 Ill. Comp. Stat. 405/1-7(A) and 405/1-8(A).
Expungement of juvenile records is governed by 705 Ill. Comp. Stat. 405/5-915, which was significantly amended in 2017 to require automatic expungement of most juvenile dispositions. See HB 3817 (2017). Records of adjudications for offenses that would be a Class B or C misdemeanor or petty or business offense (that are terminated successfully under a 2018 amendment, SB 2915) are automatically expunged by the court within 60 days, as are dismissed petitions, “not delinquent” dispositions, and dispositions resulting in a successful termination of an order of supervision. 5-915(0.2)(a). Most other adjudications are automatically expunged 2 years after closure of the case so long as no criminal charges or delinquency petitions are pending. 5-915 (0.3)(a). Records for particularly serious offenses are not expunged automatically, but expungement may be sought by petition after 2 years for offenses except first degree murder and those resulting in sex offender registration. 5-915 (2). Persons otherwise ineligible for automatic expungement may also seek expungement by petition, but only for Class B and C misdemeanor and petty/business offense adjudications, and non-adjudication dispositions. 5-915(1). Courts must provide information on the right to have records expunged at the time of sentencing or dismissal. 5-915 (2.6).
Expunged juvenile records are physically destroyed and removed from all official indexes and databases except those maintained by the State’s Attorney’s Office and Secretary of State. 5-915(.05). Law enforcement may also retain records, but only for use in pending felony investigations, and only for up to one year. 5-915(.02)(b) & (.03)(b). “Except with respect to law enforcement agencies, the Department of Corrections, State’s Attorneys, or other prosecutors, an expunged juvenile record may not be considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration.” 5-915(8)(a).
Reporting and disclosure of juvenile records to school authorities: “All courts and law enforcement agencies of the State of Illinois and its political subdivisions shall report to the principal of any public school in this State whenever a child enrolled therein is detained for proceedings under the Juvenile Court Act of 1987, as heretofore and hereafter amended, or for any criminal offense, including illegal gang activity, or any violation of a municipal or county ordinance. The report shall include the basis for detaining the child, circumstances surrounding the events which led to the child’s detention, and status of proceedings. The report shall be updated as appropriate to notify the principal of developments and the disposition of the matter.” 105 Ill. Comp. Stat. 5/22-20. Law enforcement authorities may share juvenile records relating to criminal activity by students with school authorities, but the records cannot otherwise become a part of the public record, or part of the student’s file. Id. Authorities may provide information to schools “only if the agency or officer believes that there is an imminent threat of physical harm to students, school personnel, or others who are present in the school or on school grounds.” 705 Ill. Comp. Stat. 405/1-7 & 405/5-905.
M. Judicial Certificates
Certificate of Relief from Disabilities (“CRD”) and Certificate of Good Conduct (“CGC”), 730 Ill. Comp. Stat. Ann. 5/5-5.5-5 et seq. The purpose of the CRD is to facilitate licensing in 27 specified areas. Like the New York CRD, on which it was modeled, it creates an enforceable “presumption of rehabilitation” that must be given effect by a licensing board. 5/5-5.5-10. The purpose of the CGC is to evidence a person’s rehabilitation, and to lift bars to employment and other benefits. 5/5-5.5-25. The certificate process and its effect are described in Margaret Colgate Love, Paying Their Debt to Society: Forgiveness, Redemption, and the Uniform Collateral Consequences of Conviction Act, 54 How. L. J. 753 (2011).
Persons with out-of-state or federal convictions are eligible for relief from either type of certificate, but certain serious offenses are not eligible. See 730 Ill. Comp. Stat. Ann. 5/5-5.5-5:
“Eligible offender” means a person who has been convicted of a crime in this State or of an offense in any other jurisdiction that does not include any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act, the Arsonist Registration Act, or the Murderer and Violent Offender Against Youth Registration Act. “Eligible offender” does not include a person who has been convicted of arson; aggravated arson; kidnapping; aggravated kidnapping; aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof; or aggravated domestic battery. 6
See 5/5-5.5-30(a), (b) (describing procedure in circuit court for issuing CGCs to “any eligible offender previously convicted of a crime in this state” or “in any other jurisdiction).
Certificate of Relief from Disabilities
The sentencing court or circuit court may issue a Certificate of Relief from Disabilities (CRD) to eligible persons, either at the time of sentencing or upon satisfactory completion of sentence, when the court determines by clear and convincing evidence that it is “consistent with the rehabilitation of the eligible offender” and with “the public interest.” 730 Ill. Comp. Stat. Ann. 5/5-5.5-15(b).7 A CRD does not prevent any court or administrative body from considering the conviction, nor does it preclude its use for impeachment. 5/5-5.5-10. The court may issue order at time of sentence, or at any time thereafter. The court may also request investigation by probation or court services, and may hold a hearing. 5/5-5.5-15(c), (e).
CRD Effect on licensing: The CRD authorized by 5/5-5.5-15 is given legal effect in 730 Ill. Comp. Stat. Ann. 5/5-5-5 (Loss and Restoration of Civil Rights). Under 5/5-5-5(h) and (i) a person who has been awarded a CRD may not be denied a license in 27 different fields “by reason of” conviction, or based on a finding of lack of good moral character based upon the fact of conviction unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license sought; or (2) the issuance of the license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. In making a determination whether to award a license, the licensing agency “shall consider” the following factors:
(1) the public policy of this State, as expressed in Article 5.5 of this Chapter [730 ILCS 5/5-5.5], to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;
(2) the specific duties and responsibilities necessarily related to the license being sought;
(3) the bearing, if any, the criminal offenses or offenses for which the person was previously convicted will have on his or her fitness or ability to perform one or more such duties and responsibilities;
(4) the time which has elapsed since the occurrence of the criminal offense or offenses;
(5) the age of the person at the time of occurrence of the criminal offense or offenses;
(6) the seriousness of the offense or offenses;
(7) any information produced by the person or produced on his or her behalf in regard to his or her rehabilitation and good conduct, including a certificate of relief from disabilities issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified in the certificate; and
(8) the legitimate interest of the licensing agency in protecting property, and the safety and welfare of specific individuals or the general public.
5/5-5-5(h). At the same time, the fact that an individual has received a CRD does not preclude a licensing board from relying on the conviction “as the basis for the exercise of its discretionary power” to suspend or deny any license. 5/5-5.5-10.
CRD Effect on Employer Liability: 730 Ill. Comp. Stat. Ann. 5/5-5.5-15(f): “An employer is not civilly or criminally liable for an act or omission by an employee who has been issued a certificate of relief from disabilities, except for a willful or wanton act by the employer in hiring the employee who has been issued a certificate of relief from disabilities.”
Reporting Obligation: The Department of Professional Regulation is required to report to the General Assembly each year the number of people with criminal records who applied for licenses, both with certificate of relief from disabilities and without, and the numbers of licenses granted and rejected. 730 Ill. Comp. Stat. Ann. 5/5-5.5-50. In lifting occupational bars, the law gives those with felony convictions access to licenses in fields which current legislation presumes denial of licensure, including those related to animal welfare, athletic training, cosmetology, boxing, interior design, land surveying, marriage and family therapy, professional counseling, real estate, and roofing. “Certificate is not to be deemed a pardon.” 5/5-5.5-45.
Certificate of Good Conduct (CGC)
A court may issue a CGC to eligible persons “to relieve an eligible offender of any employment bar. The certificate may be limited to one or more disabilities or bars or may relieve the individual of all disabilities and bars.” 730 Ill. Comp. Stat. Ann. 5/5-5.5-25(a). The court must determine by clear and convincing evidence that the person “has demonstrated that he or she has been a law-abiding citizen and is fully rehabilitated.” Id. A CGC does “not relieve an offender of any employment-related disability imposed by law by reason of his or her conviction of a crime that would prevent his or her employment by the Department of Corrections or the Department of Juvenile Justice, or any other law enforcement agency in the State.” Id. Eligibility criteria for in-state convictions are the same as for a CRD, see 5/5-5.5-5, except that there is a “minimum period of good conduct” that the individual must establish before a court may grant this certificate. See infra.
A CGC does not prevent any court or administrative body from considering the conviction, does not preclude use of the conviction for impeachment, and does not expunge or seal the record. 730 Ill. Comp. Stat. Ann. 5/5-5.5-25(b). “An employer is not civilly or criminally liable for an act or omission by an employee who has been issued a certificate of good conduct,” unless the employer’s actions were “willful or wanton.” 5/5-5.5-25(c).
In 2019, HB3580 added “occupational licensing, or housing” bars to those that may be relieved by a CGC. This bill also provided that a CGC does not preclude a landlord or licensing board from performing a background check or denying an application for housing or licensure. See 730 Ill. Comp. Stat. Ann. 5/5-5.5-25(d).
Procedure: After a “minimum waiting period” of good conduct, the court must hold a “rehabilitation review” (“in a manner designated by the chief judge of the judicial circuit in which the conviction was entered”) and may issue a certificate after making “a specific finding of rehabilitation with the force and effect of a final judgment on the merits.” 730 Ill. Comp. Stat. Ann. 5/5-5.5-30(a). The “minimum waiting period” for misdemeanors is one year for misdemeanants and two years for felonies, and it begins to run upon release from custody or payment of fine, whichever is later. 5/5-5.5-30(c). The court must find that the relief to be granted by the certificate “is consistent with the rehabilitation of the applicant” and “consistent with the public interest.” 5/5-5.5- 30(a)(2), (3). The court may enlarge relief, and may also revoke the certificate upon a violation of supervision or a subsequent conviction. 5/5-5.5-30(d)-(f).
Out-of-state offenses: The court may issue a CGC to an applicant convicted in another jurisdiction if the applicant demonstrates that “there exist specific facts and circumstances and specific sections of Illinois State law that have an adverse impact on the applicant and warrant the application for relief to be made in Illinois.” 730 Ill. Comp. Stat. Ann. 5/5-5.5- 30(b)(1).
IV. Criminal record in employment, licensing & housing
A. Nondiscrimination in employment and housing
Employment discrimination based on criminal record: On March 23, 2021, Governor Pritzker signed into law HR1480, a major expansion of the Illinois Human Rights Act to add a new section prohibiting discrimination in employment based on criminal record. See 775 Ill. Comp. Stat. Ann. 5/2-103.1 . Unless otherwise authorized by law, it is a civil rights violation for any employer, employment agency or labor organization to use a conviction record as a basis to refuse to hire or to take any other adverse action unless: 1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held, or 2) the granting or continuation of the employment would involve a public safety risk. “Substantial relationship” means that the position offers the opportunity for the same or a similar offense to occur and “whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” In making a determination the employer shall consider various factors, including the following the time since conviction and the person’s overall record, and evidence of rehabilitation. If the employer makes a “preliminary decision” to take adverse action, the employer shall notify the employee in writing, and explain the person’s right to respond. The employer shall consider
information submitted by the employee before making a final decision, and if the final decision is based “solely or in part” on the person’s conviction record, the employer will notify the person of their reasoning, inform them of whatever avenues of appeal may exist, and of their right to file a charge with the Department of Human Rights.
Non-conviction, juvenile and sealed records in employment and housing: Effective January 1, 2020, the Illinois Human Rights Act prohibits inquiries about, or discrimination in public and private employment and “real estate transactions” based on “arrest record,” defined as “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.” 775 Ill. Comp. Stat. Ann. 5/1-103 through 5/3-103. as amended by SB1780. (Previously the law covered only employment, and only discrimination based on “the fact of an arrest” and expunged and sealed records.) A claim of racial discrimination has also been sustained under this law where a criminal conviction was the articulated basis for a refusal to hire. See Bd. of Trs. v. Knight, 516 N.E.2d 991, 996-97 (Ill. App. Ct. 1987) (no business necessity justified denial of employment as university police position to person convicted of single misdemeanor weapons charge; mitigating circumstances existed including time passed since conviction and record of responsible employment). On the other hand, the section “does not prohibit” use of sealed felony records obtained under federal or state laws requiring a background check, or under authority of the Criminal Records Act discussed in Part IIB, supra, “in evaluating the qualifications and character of a prospective employee.” 775 Ill. Comp. Stat. Ann. 5/2-103(A). See also 20 Ill. Comp. Stat. Ann. 2630/13, discussed in Part IIB, supra. Finally, this act specifically allows employers to obtain and use “other information which indicates that a person actually engaged in the conduct for which he or she was arrested.” Id.
Housing data collection: SB1980 (2021) requires local housing authorities to collect data on number of applications for federally assisted housing by people with a criminal record, how many applications denied, and how many overturned after a records assessment hearing. Data shall be reported to the Illinois Criminal Justice Information authority and to the legisalture, and posted on the CJIA website.
B. Ban-the-Box in employment
The Job Opportunities for Qualified Applicants Act, enacted in 2014, prohibits public and private employers with more than 15 employees from from inquiring into an applicant’s criminal record “until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer or employment agency or, if there is not an interview, until after a conditional offer of employment is made to the applicant by the employer or employment agency.” 820 Ill. Comp. Stat. Ann. 75/15(a). The law does not apply where employers are required to exclude applicants with certain criminal convictions from employment, and does not prohibit employers from informing applicants of what types of convictions will disqualify them. 75/15(b).8
The City of Chicago has a similar law, Municipal Ordinance 2-160-054, which applies to all employers, regardless of size, who are required to have a city license for their business (as governed by Title 4 of the Chicago Municipal Code) or who maintain a facility within the geographic boundaries of the city. Like the Act, the Ordinance carries monetary penalties for violations. The Ordinance also provides that violators may be subject to “license discipline” by the city, including suspension or revocation. The Ordinance also requires employers to consider nine factors when determining if a criminal conviction disqualifies an applicant from employment.
C. Standards in occupational licensing
2022 laws enacted to study access to licensed professions: In almost every year since 2016, Illinois has passed at least one law seeking to limit the power of licensing agencies to deny licensure based on criminal history. These laws are described below, and the major law adopted in 2017, described in detail below, is particularly noteworthy as one of the first large-scale reworking s of occupational licensing standards and procedures. That said, with all of this legislative attention to expanding opportunities for people with a criminal history in licensed occupations and professions, in 2022 the state adopted two additional measures to study and report on barriers to licensure, one a task force to report on denial of licensure by licensing agencies (HB 5575) and the other directing the Illinois Office of Management and Budget to study whether or not a licensing board restricts access to a profession by various disadvantaged populations more than is necessary to protect the “public health, safety, or welfare from significant and discernible harm or damagem.” (HB 5576).
Review of laws enacted to afford those with a criminal record access to licensed professions: Until recently, Illinois limited consideration of conviction in connection with occupational licensing only for certain employments, and only where a person has received a certificate of rehabilitation. See Part IIC, supra, for Certificates of Rehabilitation, 730 Ill. Comp. Stat. Ann. 5/5-5-5. However, several licensing schemes incorporated a “direct relationship” test. See Public Accounting Act, 225 Ill. Comp. Stat. Ann. 450/20.01 (“The Department may refuse to issue or renew, or may revoke, suspend, or reprimand any license or licensee . . . [for] (4) being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of public accounting”); 335/9.1(b) (roofer’s license) (The Department may refuse to issue or revoke license for “conviction . . . of any crime under the laws of the United States or any state or territory thereof that is (i) a felony or (ii) a misdemeanor, an essential element of which is dishonesty or that is directly related to the practice of the profession”). The latter formulation is also used for acupuncturists, 2/110(a)(2); collection agencies, 425/9(a)(2); and marriage/family therapists, 55/85(b); and many other professions.
In 2016, Public Act 99-876 expanded upon the “direct relationship” tests for initial applicants for roofing (225 ILCS 335/7.1), cosmetology (225 ILCS 410/4-6.1), funeral director (225 ILCS 41/15-72), and related licenses. Under the expanded tests a license may only be denied for “a felony directly related to the practice,” and only after the consideration of mitigating factors that include “the bearing, if any, the criminal offense … will have on his or her fitness or ability to perform one or more responsibilities,” age at the time of conviction, and time elapsed since conviction. Listed violent offenses and offenses that requires sex offender registration are “directly related to the practice” per se.
2017 Regulatory Reforms: A major expansion of licensing regulation was enacted in August 2017. Public Act 100-0286 (SB 1688) provides general guidance for the Division of Professional Regulation of the Department of Financial and Professional Regulation (which regulates many professions) to use in its consideration of prior convictions in the issuance of licenses, certificates or granting of registration. See 20 Ill. Comp. Stat. Ann. 2105/2105-131, 2105/2105-135. It applies these standards to a number of specific regulatory schemes.
Upon finding that an applicant has a prior felony or misdemeanor conviction that may be grounds for refusal, the Division “shall consider mitigating factors and any evidence of rehabilitation contained in the applicant’s record to determine if the prior conviction will impair the applicant’s ability to engage in the practice sought.” Id. The Division must consider certain mitigating factors and evidence of rehabilitation, including:
(1) the lack of direct relation of the offense for which the applicant was previously convicted to the duties, functions, and responsibilities of the position for which a license is sought;
(2) unless otherwise specified, whether 5 years since a felony conviction or 3 years since release from confinement for the conviction, whichever is later, have passed without a subsequent conviction;
(3) if the applicant was previously licensed or employed in this State or other states or jurisdictions, the lack of prior misconduct arising from or related to the licensed position or position of employment;
(4) the age of the person at the time of the criminal offense;
(4.5) if, due to the applicant’s criminal conviction history, the applicant would be explicitly prohibited by federal rules or regulations from working in the position for which a license is sought;
(5) successful completion of sentence and, for applicants serving a term of parole or probation, a progress report provided by the applicant’s probation or parole officer that documents the applicant’s compliance with conditions of supervision;
(6) evidence of the applicant’s present fitness and professional character;
(7) evidence of rehabilitation or rehabilitative effort during or after incarceration, or during or after a term of supervision, including, but not limited to, a certificate of good conduct under Section 5-5.5-25 of the Unified Code of Corrections or certificate of relief from disabilities under Section 5-5.5-10 of the Unified Code of Corrections; and
(8) any other mitigating factors that contribute to the person’s potential and current ability to perform the job duties.
Id. at 2105/2105-131. In 2019, the legislature amended 2105/2105-131(a) to clarify that “mitigating factors” such as the time frames in subsection (2) above are intended solely as guidance to the Division and do not bar licensure. See H2670 (2019).
Applicable procedures: If the Department refuses to issue a license or certificate or grant registration to an applicant based upon a conviction or convictions, in whole or in part, the Department shall notify the applicant of the denial in writing, including a statement about the decision, which convictions were determined to be disqualifying, and “a summary of the appeal process or the earliest the applicant may reapply for a license, certificate, or registration, whichever is applicable.” See id., 2105/2105-131(b). (Note: the above new provisions concerning mitigating factors and the denial process do not apply to enumerated offenses listed in licensing restrictions for health care workers or other enumerated offenses barring licensure for particular occupations.) In 2021 this requirement was strengthened by requiring the Department to explain how the conviction “directly relates to and would prevent the person from effectively engaging in the position for which a license, registration, or certificate is sought.” See HB 14.
Additionally, pursuant to this new law, the Department is explicitly prohibited from denying a license or certificate by reason of finding of lack of good moral character based solely on a prior conviction. See id., 2105/2105-135(b). Applicants are not required to report, and the Department may not consider in connection with licensing applications: juvenile adjudications; records of arrest not followed by a charge or conviction; or “records of arrest where charges were dismissed, unless related to the profession sought;” overturned convictions; and sealed or expunged convictions or arrests. See id., 2105/2105-135(c). (Note: nothing indicates that health care workers licensed by the Department of Financial and Professional Regulation are excluded from the above provisions that prohibit the consideration of certain criminal records in licensing. Still, certain provisions provide that a license can be revoked notwithstanding other laws based on certain convictions. For example, convictions for enumerated forcible felonies and sex offenses are grounds for revoking health care license “notwithstanding” any other law. See id., 2105/2105-165(a).)
Public Act 100-0286 (2017) makes this scheme for determining the relevance of a prior conviction applicable to a number of specific licensing acts, including those applicable to residential insurance providers (215 Ill. Comp. Stat. Ann. 500/30, 500/76), operators of a dance hall or road house (55 Ill. Comp. Stat. Ann. 5/5-10004), pyrotechnics distributors (225 Ill. Comp. Stat. Ann. 227/35), swine feed distributors (225 Ill. Comp. Stat. Ann. 620/9.3), slaughterhouse operators (225 lll. Comp. Stat. Ann. 635/3.2), charitable gaming managers (230 Ill. Comp. Stat. Ann. 30/7) and liquor retailers (235 Ill. Comp. Stat. Ann. 5/7-1, 5/6-2.5).
Accountability: The 2017 law requires the Department of Financial and Professional Regulation (DFPR) to publish annually a report of summary statistical information relating to applications during the preceding calendar year, providing the total number of new applications, the number of applications from a person with any criminal conviction, the number in both categories who were granted and denied, and the number denied based in whole or in part on the conviction. Finally, DFPR was to report “the number of licensees or certificate holders who were granted expungement for a record of discipline based on a conviction predating licensure, certification,or registration or a criminal charge, arrest, or conviction that was dismissed, sealed,or expunged or did not arise from the regulated activity, as a share of the total such expungement requests.” 20 Ill. Comp. Stat. Ann. 2105/2105-205.
Transparency: Effective August 14, 2018, the DFPR must make available on its website general information explaining how it utilizes criminal history information in making licensure application decisions, including a list of enumerated offenses that serve as a bar to licensure. 20 ILCS 2105/2105-15 (SB 2853). In 2021, the Department was required to post “a list of all State licensing restrictions that would prohibit an applicant from working in a position for which a license is sought.” HB 14.
Judicial certificates: See discussion above on the effect of Certificates of Relief from Disabilities and Certificates of Good conduct on licensing.
Health care workers: The laws governing licensing for health care workers have undergone significant changes since 2011, and have tightened restrictions on convicted individuals seeking to pursue a variety of health related licenses. See Ina Silverglide, Illinois health care licenses elude those with records, CCRC, October 16, 2016. These additional restrictions have been steadily broadened, subsequently challenged, and are presently in an uncertain state of flux. At the same time, waivers may be permitted under the Illinois Health Care Background Check Act, 225 Ill. Comp. Stat. Ann. 46/40, which applies to health care workers not licensed by the Department of Financial and Professional Regulation or the Department of Public Health under another law. The law governing the hiring of health care workers who are not subject to other licensing requirements requires criminal background checks, and while it disqualifies individuals from employment upon conviction of a long list of crimes, it permits a waiver by the agency that oversees the type of facility applicant is interested in working, and requires action on the waiver application within 30 days. Id. The statute sets forth nine mitigating circumstances (e.g., the age of the person when the crime was committed, the circumstances surrounding the crime, the length of time that has passed since the crime, the person’s work history and references) for the agencies to consider in granting a waiver, and each agency sets it own procedures for granting waivers. Id. At least two health care licensing agencies have adopted a two-tiered procedure for reviewing waiver applications. See Linda Mills, Illinois Prisoner Reentry: Building a Second Chance Agenda, 141-145 (Annie E. Casey Foundation ) (July 2004). Agency staff are authorized to grant waivers that apply to the less serious offenses listed in the act, and the agency director reviews applications involving the most serious violent offenses (including murder). Id. at 141-43. Neither the state law nor agency rules set forth any offense that bars a waiver. Id. at 141. However, a waiver does not guarantee employment; it only allows the employment of an individual with a waiver by any of the facilities regulated by the agency that issued the waiver. Id. at 143.9
D. Chicago Reentry Initiative
In May 2004, Mayor Richard Daley created the Mayoral Policy Caucus on Prisoner Reentry, bringing together government and community leaders to address the challenges facing 20,000 people each year who return to Chicago after being released from prison. In January 2006, the Caucus issued a major report calling for broad ranging reforms of City policy. With regard to city hiring, the report recommended that the Mayor “[a]dopt internal guidelines for the City of Chicago’s personnel policies regarding criminal background checks, and advocate for fair employment standards.” Recommendations from the Final Report of the Mayoral Policy Caucus on Prisoner Reentry, available at http://nelp.3cdn.net/d444d237367c41c64f_kjm6ikkla.pdf. At the same time that the report was released, Mayor Daley announced several major “reentry” initiatives, including reform of the City’s hiring policies as recommended by the Caucus. The Mayor’s press release described a new hiring policy requiring the City to “balance the nature and severity of the crime with other factors, such as the passage of time and evidence of rehabilitation . . . Put more simply, this change means that City hiring will be fairer and more common sense.” Mayoral Task Force Releases Recommendations on Prisoner Reentry, available at http://www.nelp.org/page/-/SCLP/2011/MayorDalysPressRelease.pdf. The Mayor added, “[i]mplementing this new policy won’t be easy, but it’s the right thing to do . . . We cannot ask private employers to consider hiring former prisoners unless the City practices what it preaches.” Id. Implementing the Mayor’s new hiring policy, the City Department of Human Resources has issued guidelines imposing standards on all city agencies regulating hiring decisions related to people with criminal records. For the first time, the City of Chicago now requires all agencies to take into account the age of an individual’s criminal record, the seriousness of the offense, evidence of rehabilitation, and other mitigating factors before making their hiring decisions.
Additional Contact: Cynthia Cornelius, Cabrini Green Legal Aid, CynthiaCornelius@cgla.net
- The final phrase was hastily added to both statutes in 2021 by SB825, prompted by the restoration of rights granted by Governor Pritzker to Roger Agpawa, Mayor of Markham, Illinois, whose right to hold office had been challenged based on his federal felony conviction. The legislation declared these statutory emendations to be “declarative of existing law,” and the Supreme Court of Illinois agreed, unanimously reversing a contrary holding of the lower court. See Walker v. Agpawa, 2021 IL 127206, par. 24 (August 26, 2021): “The legislature did not fill the proverbial hole identified by the appellate court majority; it clarified that a hole never existed. We hold that Governor Rauner’s untitled document restored all of Agpawa’s Illinois rights of citizenship, including the right to hold municipal office, and he was eligible to be mayor of Markham.”
- See Delgado v. Bd. of Election Comm’rs, 865 N.E.2d 183, 185 (Ill. 2007) (holding that person convicted of felony whose right to hold municipal office had not been restored by pardon under 10 ILCS 5/29-15, was ineligible to hold elective municipal office); Bryant v. Bd. of Election Comm’rs, 865 N.E.2d 189, 191 (Ill. 2007) (same); see also People v. Hofer, 843 N.E.2d 460 (Ill. App. Ct. 2006) (upholding under a rational basis standard the Illinois statutory scheme that allowed a person convicted of a felony to run for constitutional office merely by completing his sentence, but did not restore the rights of such individuals to seek non-constitutional elective office without a pardon from the governor; therefore, removal of a trustee from his office pursuant to 65 ILCS 5/3.1-10-5(b) did not violate the equal protection clause).
- See Beth Johnson, Expungement and Sealing: A Lawyer’s Guide, Criminal Records: Expungement and Other Relief (Ill. Inst. for CLE, 2010 Supp.):
Prior to 2004, the only remedy of any sort for a conviction was to receive a gubernatorial pardon authorizing expungement. Whether it was a felony conviction or an ordinance violation, a pardon was the only way to obtain relief. Absent that extraordinary remedy, a person could never remove a criminal record and the stigma surrounding it from public view. The sealing law now authorizes the courts to make decisions on whether to seal minor misdemeanor offenses and limited felony offenses.
- A provision making those with a prior conviction ineligible for expungement was deleted in 2016.
- Section 2630/5.2(d)(7) provides in pertinent part:
The court may consider the following:
(A) the strength of the evidence supporting the defendant’s conviction;
(B) the reasons for retention of the conviction records by the State;
(C) the petitioner’s age, criminal record history, and employment history;
(D) the period of time between the petitioner’s arrest on the charge resulting in the conviction and the filing of the petition under this Section; and (E) the specific adverse consequences the petitioner may be subject to if the petition is denied.
- As originally enacted in 2004, eligibility was restricted to first felony offenders convicted of non-violent offenses. The eligibility criteria have been expanded several times over the years.
- Between January 2004 and January 2010, the Prisoner Review Board also had authority to issue certificates of relief from disabilities and certificates of good conduct. During this period the Board issued 44 certificates of good conduct and 121 certificates of relief of disability.
- Previously, public employers were prohibited from making inquiry into applicants’ criminal history by executive order. See http://www.nelp.org/content/uploads/2015/03/Illinois-Administrative-Order-1-2013.pdf. The order directed each state agency to establish a “documented review process” to ensure that any exclusion related to a criminal record is “job-related and consistent with business necessity,” considering the nature of the offense, the passage of time since conviction, and the nature of the job sought.
- Two agencies released their records of actions taken on waiver applications in connection with a 2004 request made by Linda Mills for her study of prisoner reentry issues for the Annie E. Casey Foundation. The Department of Human Services granted 77% of waiver requests received over an eight-year period between 1995 and 2003, including at least one waiver to an individual convicted of murder. Id. at 144. Of the 289 waivers granted by DHS over that period, only one person was later charged with abuse of a patient – and that person had only a conviction for retail theft. Id. The Department of Public Health (“DPH”) received 6,581 waiver requests from 1996 through 2003. Of those, 875 had no disqualifying convictions (this is due, according to the DPH to name matches that are not actual person matches). Of the 5,706 with actual convictions, 4,130 (72.4%) were granted waivers. Of those, 97 (2.3%) waivers were later revoked, with 38 of the revocations due to a subsequent finding of patient abuse, neglect or theft, and 59 due to a subsequent disqualifying conviction. DPH also has been generous with its waivers of the most serious, recent or violent offenses that need director approval. This data on waivers is dated (2004) and its present reliability is therefore questionable.