Tag: Illinois

Reintegration Champion Awards for 2021

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 Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors.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. Read more

New Jersey puts “fair chance housing” on the national agenda

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). Read more

Access Barriers to Felony Expungement: The Case of Illinois

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). Read more

Collateral Consequences in Occupational Licensing Act

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.   Read more

New expungement legislation: Maryland and Oklahoma

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. Read more