Tag: Illinois

More states facilitating licensing for people with a criminal record

Last week we posted a description of a detailed new Indiana law regulating consideration of conviction in occupational and professional licensure throughout the state.  It now appears that this may represent a trend, as eight additional states have either recently enacted or are poised to enact similarly progressive occupational licensing schemes.  New general laws regulating licensure are in place in Arizona, Illinois, and Massachusetts.  Similar bills have been enrolled and are on the governor’s desk for signature in Kansas, Maryland, Nebraska, and Tennessee.  Arizona’s new 2018 licensing law follows on another law passed in that state in 2017 that authorized provisional licenses for individuals with a criminal record.  Massachusett’s new licensing law is part of a more general criminal justice reform bill.   Delaware and Connecticut have also recently loosened restrictions on licensing for cosmetology and related professions. The licensing reforms in these states – and in several other states where licensing bills are less far along toward enactment — seem to have been influenced by a model law proposed by the Institute for Justice, a libertarian public interest law firm.  Key features of the Model Occupational Licensing Review Act as they affect individuals with criminal records are 1) to provide individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; 2) to require licensing agencies to disqualify only if an applicant has been convicted of a felony or violent misdemeanor, and if the agency determines that “the state has an important interest in protecting public safety that is superior to the individual’s right to pursue a lawful occupation”; and 3) to require each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action.  Disqualification is justified under this model law only if the conviction is “substantially related to the state’s interest in protecting public safety,” and the individual will be “more likely to reoffend by having the license than by not having the license.” The federal government is also encouraging licensing reform: the U.S. Department of Labor is supporting a three-year project to assist states improve their general policies and practices related to occupational licensing, including those that affect persons with a criminal record. The project brings together 11 states to participate in the Occupational Licensing Learning Consortium. The 11 states are Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin. We are monitoring this legislative trend and will revise the state profiles and other materials in the Restoration of Rights Project as new laws are enacted.   Read more

A closer look at Indiana’s expungement law

More than four years ago, Indiana’s then-Governor Mike Pence signed into law what was at the time perhaps the Nation’s most comprehensive and elaborate scheme for restoring rights and status after conviction.  In the fall of 2014, as one of CCRC’s very first posts, Margaret Love published her interview with the legislator primarily responsible for its enactment, in which he shared details of his successful legislative strategy.  Later posts on this site reported on judicial interpretation of the law.  Since that time, a number of other states have enacted broad record-closing laws, including Louisiana, Missouri, Nevada, New York, and most recently Illinois. We have been impressed by the evident enthusiasm for Indiana’s “expungement” law within the state, from the courts, the bar, the advocacy community, and even from prosecutors.  So we thought it might be both interesting and useful to take a closer look at how the Indiana law has been interpreted and administered, how many people have taken advantage of it, and how effective it has been in facilitating opportunities for individuals with a criminal record, particularly in the workforce.  We also wanted to see what light this might shed on what has brought to the forefront of reform so many politically-conservative states.  Spoiler alert: the Chamber of Commerce was one of the strongest proponents of the law. We expect to be able to post our account of the Indiana expungement law shortly after Labor Day.  In the meantime, we thought it might be useful to reprint our 2014 interview with former Rep. Jud McMillan, which has been among our most viewed posts. Indiana’s new expungement law the product of “many, many compromises” In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country.  Under the new law, courts are empowered to “expunge” most criminal records, after waiting periods keyed to the seriousness of the offense.  The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere.  This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation. We recently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states.  Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation.  But in an age of bipartisan support for criminal justice reform, apparently anything can happen.   Rep. McMillin told us how he was able to persuade his colleagues in the legislature by careful groundwork, and overcome opposition from prosecutors and courts by making what he described as “many, many compromises.” One of the most important of those compromises was limiting use of criminal records rather than limiting public access to them, at least in the case of more serious offenses. Before letting Rep. McMillan describe in his own words how he secured passage of this relief scheme, here is a brief description of the law’s most salient features. (A more detailed description can be found here.)     All criminal records (except convictions involving serious violence, public corruption, and sexual offenses) are eligible for expungement from the court of conviction, after waiting periods ranging from one year (for non-conviction records) to ten years (for the most serious eligible felonies). After the court has issued an expungement order, records not resulting in conviction and records of misdemeanors and minor felonies are automatically sealed.  After a record is sealed, even a prosecutor may not access it without a court order. Expunged records of more serious convictions “remain public,” although they must be “clearly and visibly marked or identified as being expunged.”  However, all expungement orders similarly limit the use to which a criminal record can be put, as described below. Expungement may be granted by the court without a hearing unless the prosecutor objects.  Those filing for expungement of a conviction must pay the filing fees required for filing a civil action ($141), and this requirement may not be waived. Defendants are not permitted to waive the right to seek expungement as part of a plea agreement. A petitioner may seek to expunge more than one conviction at the same time, but may be granted expungement only once in his or her lifetime. If the first petition fails, there is a three-year waiting period before a person may reapply, and the only convictions expungeable are those in the original petition. It is unlawful discrimination for any person to refuse to employ or license a person because of a conviction or arrest record that has been expunged or sealed, and a person may not be questioned about a previous criminal record except in terms that exclude expunged convictions or arrests. Expunged convictions are not admissible as evidence of negligence in a civil action against a person who relied on the expungement order, and they may not be reported by credit reporting companies. The Attorney General may enforce the provisions relating to credit reporting companies through injunction and fines, and a private individual injured by a violation of these sections may recover damages, court costs and attorney fees. The Indiana courts have published a detailed explanation of the law and sample petitions for expungement that are tailored to the particular categories of eligible cases, to enable a person to seeking expungement without hiring a lawyer. * * * * * * * * * Here is our interview with Rep. McMillin: How did you get interested in the subject of criminal records? As a former prosecutor, and now someone who does some criminal defense work while serving in the legislature, I think I have seen the justice system from several sides.  Also, as a fiscal conservative it just makes practical sense to me that when somebody has served their court-imposed sentence there has to be a pathway back into society for them. Without this, we can’t expect them to become productive members of society.  The Indiana Constitution requires our criminal justice system to be based upon the principles of reformation and not vindication. I firmly believe that our expungement law moves substantially in that direction. How did you build support for the concept of expungement among your colleagues in the legislature? This was a process that played out over several years.  We proceeded in incremental steps, building on existing law and gaining supporters from various constituencies. We started by expanding an existing provision of the Indiana code that allowed courts to reduce a minor felony to a misdemeanor upon completion of the sentence, to allow people to come back after a waiting period to get the felony reduced, as long as they had no further charges.  I thought if I could just start the conversation with a simple bill that did not involve more serious offenses I would be able to get people to see how detrimental having a felony conviction can be for someone who wants to get back into the work force.  I took a practical approach, and was able to persuade some of my fiscally conservative colleagues that there can be economic benefits through the reduction of recidivism.  After getting that initial language enacted I came back the next session to work on full expungement, and found that there was support on both sides of the aisle as many people were able to see the benefits. There were those who had general objections to the legislation, some for ideological reasons, some for practical reasons, but we were able to overcome all of them with solid logic when it came to debating this issue.  We were even able to win over some of the prosecutors, enough that the opposition of the holdouts didn’t derail the legislation’s chances.  One of the most effective supporters was the Indianapolis Chamber of Commerce, which helped me convince people that expungement could be beneficial to business owners and economy as a whole. Obviously there were a lot of compromises we had to make, and it’s not hard to see what some of them were, like the lifetime limit to one expungement, the prohibition on seeking expungement of offenses committed after a petition has been denied, and the filing fee that is hefty for many.  Certain violent and sexual offenses had to be excluded from coverage or it would have torpedoed the effort before we got it off the ground. It was sometimes difficult to give up some things just to get the bill passed, while still ending up with a law that actually made a difference. We were able to resist several offers to compromise that would have simply gutted the bill.  We had to keep our eye on the core purposes of the legislation, which are to restore rights and give people a fair chance in the workplace and elsewhere.  We will see how the law works.  If some of the compromises we made need to be revisited, we can do that.  In fact, in the 2014 session we made quite a number of reasonably minor adjustments in the law, notably to permit more government entities including licensing agencies access to sealed records. How were you able to defuse opposition from the prosecutors? Because I anticipated the prosecutors would be the main opponents, I reached out to them early in the process, and worked with the ones who were willing to consider the concept. Here again I took a practical view, asking if they really wanted people they had prosecuted to return to the system, or whether they wanted them to succeed.  I had to persuade them that expunging a record did not reflect badly on the prosecution or create problems for law enforcement.  While their ideas were substantially different than mine, I felt it was important to incorporate many of them, and so we were able to reach a middle ground. That is how we came to have a multi-tiered system, with limits on sealing for more serious offenses, a role for prosecutors in the expungement process, the possibility of unsealing in the event of a new crime, and a lifetime limit of one expungement.   This is not to say that prosecutors across Indiana ended up supporting expungement. In fact many of them remain its most ardent opponents. However, asking for their input early and making them a part of the process instead of a constant and united opponent was instrumental in getting the job done. What about other sources of opposition or support? Many judges objected and some of the clerks were opposed to the additional work that the legislation would make for them.  The credit reporting companies were also not happy but they did not mount any substantial resistance.  As noted, the business community was surprisingly supportive.  Many employers liked the protections afforded them in the bill — including not being held responsible for information there were not permitted to have.  Governor Pence was a supporter from the beginning.  Early in his term he adopted a slogan that “Indiana should be the worst place to commit a crime, but the best place to get a second chance.” This slogan fit perfectly into the concept of this legislation. How has the law been working in its first year? Once the law was passed, the courts took a proactive role in carrying out their new responsibilities.  They took it upon themselves to develop a variety of forms for different kinds of cases, and publish them on a website so that people could apply for expungement without the need to hire a lawyer.   Legal services organizations have been spreading the word around the state, and are helping to clarify what appears to have been some initial confusion because of the law’s complexity.  There have been a few kinks, and as I said we have already passed several bills to make slight adjustments mostly of a procedural nature.  I anticipate that there will more a few more tweaks this year.  Thankfully the concept has been received wonderfully by the public so making the changes at this point is relatively easy and meets little resistance. Why is the relief called “expungement” if many records remain open to the public? I get this question frequently, and yes I agree it is a bit confusing to use a term that ordinarily implies some limits on access.  The original concept was that an expungement order would seal all records except for law enforcement purposes.  But that was not an approach that I could sell, in or out of the legislature, especially for more serious offenses.  As the bill ended up with tiered approaches, there really was not a single term that fit the whole — and as we studied what other states do, I am not even sure the term “expungement” has a single meaning. Also, even if a record is actually destroyed, it may be impossible to ever remove all evidence of it.   In the end, I was convinced that “expungement” was the best term to use to ensure that people who need relief would take advantage of it.  There’s no doubt that most people believe that you only get a second chance if your record is clear in a literal sense.  But even where a record is sealed, our law does not permit people to deny that they were arrested or convicted; rather, they cannot be asked about a record that has been expunged.  In this way we were able to reconcile keeping the record open with the core concept of restoring rights.  By limiting the use of a record we hope to clear away the cloud that these individuals have been living under. What advice do you have for legislators in other states and for advocates who want to try to develop a comprehensive scheme like Indiana’s? To begin with, to pass a bill like this you have to have someone in a leadership role who really understands the inside and out of the criminal justice system, and who is willing to live and breathe this concept through the entire legislative process and see it all the way through to completion. You have to start the conversation very early, and learn patience. It takes a long time to convince people who may only have a passing interest (or no real interest at all) in something like this, and no personal experience with the justice system, to understand why it is a good idea and why they should take the perceived risk of supporting this concept. In the political world it is very easy for those who oppose this concept to get their hooks into legislators early by telling them that this is “soft on crime” and that it will damage them politically to support it. In order to combat this I think it is necessary for the legislator who is carrying the bill to spend one-on-one time sitting down with other legislators. While advocates are important and certainly should be recruited, I find that nothing is as persuasive as the legislators themselves discussing the concept.  The other really important thing is to secure the support of the business community.   You should also find examples of individuals who have been battling for years if not decades to be successful in society while carrying the weight of a criminal record. Their anecdotal testimony can be extremely powerful. I also recommend reaching out to those you anticipate will oppose the bill and asking them to help with the bill. If they are not on the inside helping they will be on the outside opposing. Even if the “help” they are giving is not always consistent with the concept you are trying to advance, you are still much better off having those people working with you on developing language than trying to kill any language that you come up with. It is helpful to defuse opposition if you couch the conversation in terms of the social and economic benefit to society rather than always talking about the benefit to the individuals who might seek expungement. It is very important to make people see that while our human compassion should want to give people a second chance, our duty is to be fiscally responsible to our constituents, and that for numerous reasons (recidivism, costs of incarceration, costs of providing welfare, public safety, etc.) this concept is the right one for all of our constituents. In the end, you really do have to be willing to compromise, recognizing that if you get the key concepts enacted you can always come back later and change the details.     Read more

Illinois enacts boadest sealing law in Nation

On Fiday Illinois governor Bruce Rauner signed into law what appears to be the broadest sealing law in the United States, covering almost all felonies and requiring a relatively short eligibility waiting period of three years. We expect to provide a more in-depth discussion of the law next week from practitioners working on the ground in the state, and will soon update the Illinois Restoration of Rights Project profile to reflect these important changes.  In the meantime, we share the following from Cabrini Green Legal Aid, which was among the organizations that helped push the legislation through. This afternoon, Governor Bruce Rauner signed into law six pieces of legislation that impact people with arrest and conviction records, including HB 2373 – the sealing expansion bill. This marks the LARGEST expansion of a sealing law in the United States and is a huge win in criminal justice reform. Effective immediately, this new law will provide thousands of people in Illinois the opportunity for criminal records relief by allowing them to petition the court to remove barriers in their lives as a result of their past criminal record. On behalf of our partners with the Restoring Rights and Opportunities Coalition of Illinois (RROCI),* Cabrini Green Legal Aid (CGLA) appreciates the support and involvement of so many of you who took action making phone calls, sending emails and traveling to Springfield. We are extremely grateful to the members of the RROCI coalition and CGLA’s Leadership Council and Visible Voices members who had a weekly presence in Springfield throughout the legislative session, using their voices in the halls of the capitol to humanize this issue and lead the effort. We facilitated 56 trips that required 14 hour commitments by the individuals advocating for this bill. Through leadership development, training and support, CGLA’s goal is to engage those who are directly impacted by systemic change to lead advocacy and education around these issues. This will be a game changer for CGLA. Over the years, we have met thousands of individuals who did not qualify for sealing. Not only can we start saying YES to those seeking a better future, we can begin to spread hope and strengthen the lives of individuals and families throughout Illinois. If you want to be part of this effort, please join us! Attorneys can volunteer to help us prepare petitions for clients to seal their records and other volunteers can assist with communications to clients needing additional information about new legislation. Email volunteer@cgla.net Request a presentation from our Leadership Council in your community to help raise awareness about sealing expansion. Email advocacy@cgla.net Send people to our Help Desk that are now eligible, located at the Daley Center in Room 1006, open Monday through Thursday 9-12 and Thursday afternoon from 1-4. Make sure they obtain a copy of their criminal history reports from the Chicago Police Department (3510 S. Michigan), open 8-12, Monday through Friday. The cost is $16 and they should request their City and Illinois State Police reports. Thank you again for your support and advocacy on behalf of individuals, families and communities impacted by the collateral consequences of the criminal justice system! Today is indeed, a good day…     Read more

New research report: Four Years of Second Chance Reforms, 2013-2016

Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society.  It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences.  To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief.  Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction.  As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types.  The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process.  Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time.  Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible.  Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado’s new “order of collateral relief” provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction.  The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority.  These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<       Read more

Illinois health care licenses elude those with records

The Illinois legislature has been generally progressive in enacting measures to help people with a criminal record avoid being stigmatized for life.  In 2003, as a state senator, President Obama sponsored one of the earliest of these measures, authorizing courts to grant certificates relieving collateral consequences. In 2011, however, Illinois took several steps backwards when it enacted legislation automatically barring some criminal record holders from ever working in a variety of licensed health care fields.  The law has since become the subject of litigation and further legislation that leaves many would-be medical licensees to face an uncertain future. What follows is a description of the law’s enactment, subsequent court challenges, and potential legislative fixes. Background In the summer of 2010, the Chicago Tribune published a series of articles about doctors and other licensed health care professionals who had been convicted or accused of inappropriate sexual conduct involving their patients.  Despite their misconduct, these individuals were still licensed to practice. The General Assembly’s response to the investigative series was swift. During the 2011 legislative session, lawmakers moved to amend the health care licensing code to apply an automatic lifetime bar to licensure for anyone convicted of the following offenses: 1) a battery or sexual offense against a patient during treatment or care; 2) a conviction mandating registration as a sex offender (which includes certain Class A misdemeanors that essentially involve consensual contact between minors); and 3) a “forcible felony.” The amendment did not provide a right to contest the decision to revoke or deny a license, through either a pre- or post-license revocation hearing. The amendment applied to both current and future license holders in fields such as licensed practical nurse, registered nurse, occupational therapist, speech pathologist, athletic trainer, optometrists, dental hygienists. See 68 Ill. Adm. Code 1130.110. The lifetime bar went into effect on August 20, 2011.  See 20 ILCS § 2105/2105-165. Shortly thereafter the Illinois Department of Financial and Professional Regulation’s (IDFPR), the state’s largest licensing agency, began revoking the licenses of any health care worker convicted of a battery against a patient or a sex offense resulting in mandated sex offender registration.  By October 2015, the IDFPR had revoked 110 licenses. Of that number, 11 involved crimes against a patient. In February 2013, the IDFPR issued regulations identifying what crimes were forcible felonies, the third category of prohibitive offense. Inexplicably, the IDFPR did not rely on the Illinois Criminal Code’s definition of “forcible felony,” choosing to draft its own. The IDFPR’s definition includes offenses that are not within the code’s definition while excluding others. For example, the IDFPR excluded the following offenses that are expressly included in the code’s definition: burglary, residential burglary, aggravated arson, and arson. At the same time, the IDFPR added offenses such as aggravated battery not resulting in severe bodily harm, possession of a deadly substance, and eight terrorism-related offenses (including making a terrorist threat, falsely making a terrorist threat, and causing a catastrophe) that are not expressly enumerated in the code. While those offenses may fall within the code’s catch-all provision (“‘Forcible felony’ means … and any other felony which involves the use of threat of physical force or violence against any individual.”), it is unclear why the IDFPR chose to single them out rather than adopting the statute’s more flexible definition. The IDFPR would later argue that it was not bound by the code’s definition since the 2011 law did not explicitly incorporate the code’s definition.   Court Challenges Since its enactment, several licensed health care workers and license applicants have challenged the legality of the lifetime bar. The most significant ruling was issued by the Illinois Supreme Court in 2014. Lifetime Bar for Sex Offenses Against Patients Upheld In Hayashi v. IDFPR, 2014 IL 116023 (Oct. 17, 2014), three former health care licensees challenged the constitutionality of the lifetime bar after their licenses were revoked. All of the plaintiffs had been convicted of sexual offenses involving a patient within the past 14 years. On appeal, their cases were consolidated. The plaintiffs sought to overturn the bar on several grounds: procedural due process (no right to a pre-revocation hearing), substantive due process (deprivation of property and retroactive application), and res judicata. The Illinois Supreme Court upheld the lifetime bar. On the substantive due process issue, the Court explained: It is the responsibility of the legislature, not the courts, to balance plaintiffs’ interests in the practice of their health care professions against the State’s interests in regulating medical licenses and protecting the public. …. Section 2105-165 imposes mandatory revocation of health care licenses on plaintiffs based on their convictions of certain criminal offenses during the course of patient care or treatment. There is no question that the means chosen by the legislature is rationally related to the goal of protecting the public health, safety and welfare and is a valid exercise of the State’s power to regulate health care professionals. It followed that the law provided adequate procedural due process by giving licensees 20 days (from the receipt of notice of the intent to revoke) to challenge the factual basis of the revocation by providing proof that they had not been convicted of a prohibitive offense.  The Court explained: “Any additional procedures would add to the Department’s administrative and fiscal burdens with no added benefit to plaintiffs.” The Court did not decide if the licensing bar amounted to an unconstitutional ex post facto law; nor was the Court was not asked to determine if the lifetime bar was constitutional as applied to individuals whose criminal conduct did not involve a patient or sex crime, or had occurred years earlier. Forcible Felony Bar Struck Down In early August, a Cook County circuit court judge ruled that the 2011 law’s forcible felony bar was unconstitutional on its face, while also striking down the IDFPR’s definition of forcible felony.  Anderson v. IDFPR, No. 16 CH 2611 (Ch. Ct., Aug. 19, 2016). The plaintiff in Anderson was denied an LPN license on the basis of a 20-year-old conviction for aggravated battery to a police officer.  She was 20 years old when she was arrested. Under the Criminal Code, aggravated battery does not expressly qualify as a forcible felony unless the physical contact causes the victim to suffer “great bodily harm or permanent disability or disfigurement.” 720 ILCS 5/2-8.  In other words, while aggravated battery is always classified as a felony it is not always classified as a forcible felony. The plaintiff in Anderson argued that her application should not have been denied because her conviction did not meet the Criminal Code’s definition of a forcible felony. The IDFPR disagreed, stating that it was not bound to apply the code’s definition, and was free to create its own more expansive definition The court sided with the plaintiff, holding that the IDFPR exceeded its statutory authority when it failed to rely on the code’s forcible felony definition.  The court explained that since the law did not provide any indication to the contrary, the term must be understood to refer to its settled legal definition – the one contained in the Criminal Code. The court went on to hold that the forcible felony bar was unconstitutional on its face because the legislature failed to identify the harm it sought to prevent by barring everyone convicted of a forcible felony.  In delivering the ruling, the judge noted, “There is no question that in enacting [the 2011 law], the laudable legislative intention was to protect the public from health care workers who have been convicted of sex crimes,” and distinguished the case from Hayashi, which dealt with an as applied challenge by licensees that were subject to the bar because of sex crimes against patients, not forcible felonies. In September, the court denied the IDFPR’s motion to reconsider. The ruling has been stayed while the IDFPR prepares to appeal the decision to the Illinois Supreme Court.   A Legislative Fix? The broad consequences of the 2011 law first surfaced in 2013, when the IDFPR began revoking/denying licenses based on forcible felony convictions that fell within its own regulatory definition. These were crimes that did not involve a patient and were not sexual in nature. In some cases, the crime occurred when the applicant was a teenager. In 2014, one state senator introduced legislation that would reinstate the right to a hearing to contest some of the IDFPR’s revocation and denial decisions based on forcible felonies.  But it was not until August of this year that legislation was finally enacted to address some of the problems with the law’s forcible felony bar. That legislation, Public Act 99-0886, is slated to take effect on January 1, 2017. Unfortunately, P.A. 99-0886 does not go far enough to resolve all of the problems the 2011 law created.  Instead of eliminating the forcible felony bar, it substitutes a five-year mandatory bar (or three years from release from confinement, whichever is greater) for the mandatory lifetime bar.  After the mandatory bar expires, an applicant or person whose license was revoked may petition for licensure or reinstatement.  In determining whether to grant or reinstate the license, IDFPR must consider 15 factors, including the seriousness of the offenses, motive, contrition, the date of conviction, and disciplinary history.  The Act does not otherwise affect the forcible felony bar. Procedurally, it is unclear who will be responsible for reviewing these petitions. Normally, the job of reviewing applications for licensure rests with the licensing board, whose appointed members work in the profession. Currently, however, it is the IDFPR, not the licensing board, who has been revoking and reviewing applications of those impacted by the 2011 law. P.A. 99-0886 provides little guidance in answering this question. It merely provides that the “Department” shall evaluate these applications. Only time will tell if the IDFPR intends to continue excluding health care licensing boards from the applicant review process. Adding further confusion and uncertainty is what impact the Anderson ruling will have on whether P.A. 99-0886 will take effect on January 1, 2017.  Though the Act makes changes to the nature of the forcible felony bar, it does not address the fundamental problem identified in Anderson — the fact that the 2011 law did not identify the harm that the forcible felony bar was intended to prevent. Against this backdrop, health care worker licensing in Illinois could remain in limbo for several more years – blocking the professional aspirations of many hardworking citizens.   For more information on relief from collateral consequences in Illinois, visit the CCRC’s Illinois state profile here.                                           Read more