Alternative Forms of Relief
From Criminal Records
IMPACT Second Chances
DLA Piper
August 8, 2013
How CGLA Fills a Major Need
There are hundreds of thousands of
individuals with criminal records in Cook
County. These individuals are barred from
employment, housing, and many educational
opportunities regardless of how minor or
distant in time their offenses.
CGLA’s Criminal Records Program helps
clients clear or mitigate their criminal records
through expungement & sealing, pardon
petitions, certificates and waivers. We also
seek to educate those with criminal records as
to their rights and employers as to their
responsibilities.
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The Legal Process
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Reading a rap
sheet & court
records
Understanding
which offenses
under what
conditions are
eligible for relief
Knowing what to
do when a
record cannot
be cleared and
a person’s legal
rights.
Filling out and
filing an
accurate petition
and
understanding
the process that
follows.
Forms of Relief
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Expungement &
Sealing
Clemency
Petitions
Waivers &
Certificates
• Expungement is only
for those who have
never been convicted
of a criminal offense.
• Sealing is only for
those with minor, nonviolent, non-sexual
misdemeanor
convictions and only
three felonies.
• Process through the
court system to
remove records from
public view.
• The only way to
“clear” a conviction
record that cannot be
sealed is a pardon
from the Governor.
• A pardon, with specific
authorization, allows a
person to expunge an
otherwise ineligible
conviction.
• Extraordinary remedy
that requires proof of
rehabilitation, removal
from criminal activity
and life changes to
have granted.
• Do not remove
records from public
view, but can remove
statutory barriers or
provide proof of
rehabilitation to
employers.
• Discretionary remedy
granted through state
agencies (for Health
Care Waivers, PERC,
and Certificates of
Eligibility for Sealing)
or the Courts (for
Certificates).
• Require explanation of
offenses and proof of
rehabilitation.
Expungement & Sealing: Basic Eligibility
Expungement
• Those who have never been convicted
of any criminal offense, anywhere, at
any point in their adult life.
Sealing
• Those who have been convicted of
minor misdemeanors or certain limited
felony offenses.
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After Expunging or Sealing…
• Applications for
employment may
only inquire into
convictions and
not into an
expunged or
sealed record.
• Applications for
employment must
contain language
which states
applicants need not
disclose expunged
or sealed records.
• Prohibits
employment
discrimination
based on
expunged, sealed
or impounded
records.
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Answering
“No” to the
question.
Employment
Applications
Illinois
Human
Rights Act
Fair Credit
Reporting
Act
•
Requires
authorization to run
background checks
and opportunity to
correct information.
Ineligible Misdemeanor
Convictions/Supervisions
Crimes of Violence
• Battery, assault, domestic battery, reckless conduct, violations of
order of protection.
Sex Crimes Under Article 11
• Solicitation of Prostitute, Patronizing a Prostitute, Public
Indecency, and many others that are less common.
Other offenses against public morals
• DUIs & reckless driving*, dog fighting, animal cruelty.
• *Except youthful offenders defined under 20 ILCS
2630/5.2(a)(3)(A).
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Felony Convictions
Eligible
• Currently Three Felony Convictions are Eligible to Seal:
• Possession of a Controlled Substance (Class 4)
• Possession of Cannabis (Class 4)
• Prostitution (Class 4)
• Note: Law changes after January 1, 2014 (P.A. 98-142)
• Class 3 & 4 Retail Theft*
• Class 3 & 4 Theft*
• Class 3 & 4 Deceptive Practices*
• Class 3 & 4 Forgery*
• Possession of Burglary Tools (Class 4)*
• Possession with Intent to Manufacture/Deliver Controlled Substances (Class 3)*
ALL Other Felonies are Ineligible to be Sealed
• Regardless of Class
• Regardless of Age
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Alternative Forms of Relief
Petitions for
Executive Clemency
• Ultimate form of
relief from a
conviction.
• If a pardon is
granted by the
Governor, with
specific
authorization,
conviction can be
expunged.
• Extraordinary
remedy!
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Health Care Waivers
• Removes statutory
barriers to working
in health care
facilities.
• Available for nonlicensed health care
workers and any
other employee with
“access” to patients.
• Granted by the
Illinois Dept. of
Public Health.
Certificates of Good
Conduct & Relief
from Disability
• Granted by the
courts after a
“rehabilitation
hearing.”
• Can remove
specific statutory
employment
barriers or
discretionary
licensing barriers.
• Can be used to aid
in job searches,
provides immunity
from negligent
hiring.
Certificates of
Eligibility for Sealing
• Granted by the
Illinois Prisoner
Review Board
• Permits Circuit
Court, at its
discretion, to seal
an otherwise
unsealable offense
• Applies to certain
Class 3 and 4
felony offenses
Similarities Between the Forms of Relief:
What is required in each.
Explanation of
the conviction
Proof of
rehabilitation,
specific to the
offense
Educational and
employment
history
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Context of
criminal history
in life story
Reasons for the
specific relief
being sought
Proving “Rehabilitation”
• Requires sensitivity in asking the right
questions to determine what the form of relief
should focus on.
• Requires persuasive writing skills to explain
FACT SCENARIOS:
o
o
o
o
o
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Drug Use
Theft or Property Crimes
Crimes of Violence
Gang Membership
Drug Dealing
Documents to Prove Rehabilitation
• Letters of Support – See: Guidelines for Letters of
Support.
• Certificates, Diplomas, Degrees, Proof of Education
• Proof of Sobriety
• Other fact specific documents (anger management
classes, proof of counseling)
• Steady job history (resume)
• Lack of criminal record (rap sheet)
• Information specific to relief sought
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Obtaining Criminal Records
• Court dispositions are available in the appropriate county that
the offense was charged in. In Cook County, can purchase any
disposition at the Daley Center. Good exhibits!
• Sometimes information from the court file itself is required to
refresh recollection, get supporting documents or prove the facts
and circumstances alleged.
o Misdemeanor files for Chicago can be obtained at the Daley
Center, 50 W. Washington, Room 1006.
o Felony files for Chicago can be obtained at 26th & California, 5th
Floor Clerk’s Office. All files must be ordered by calling 773-8691762 and takes approximately 3 days to come in.
o Other criminal cases must be obtained from appropriate Clerk’s
Office in district/county case was heard.
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Executive Clemency
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Petitions for Executive Clemency
Petition Submitted
• Type-written petition submitted to the Prisoner Review Board
(PRB).
Hearing Held before PRB
• Hearings are held four times a year (April & October in
Chicago, January & July in Springfield).
Governor has Sole Authority to Render Decision
• PRB makes non-binding recommendation, Governor has no
time frames, and it takes years for a decision (Gov. Quinn
currently finishing his review of petitions filed in 2009).
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Writing the Petition for Clemency
See Pro Se Packet and www.state.il.us/prb
Section 1
Required Information
• Self-explanatory. State Prisoner Number only applies if a person was
sentenced to prison and Aliases only apply if used.
Section 2
Conviction(s) for Which Pardon is Sought
• This section documents facts about all unsealable convictions, including an
Explanation of Conviction. Refer to your case chart and criminal history
analysis form for the cases that should be included in this section.
Section 3
Complete Criminal History
• Short description of the remainder of cases in the clients criminal history,
including convictions, supervisions, and all arrests – even if sealed!
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Writing the Petition for Clemency
See Pro Se Packet and www.state.il.us/prb
Section 4
Personal Life History
• Detailed biography of a person’s life. You will help the client think of all
things that should be disclosed and supporting documents to prove.
• Family, employment history, educational history, life accomplishments.
Section 5
Reasons for Seeking Clemency
• Includes opportunities that have been denied (jobs, housing, education).
Should be as specific as possible.
• One way to identify other forms of relief available.
Section 6
Type of Clemency Desired
• Check Pardon and Expungement.
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Hearings Before the PRB
• Each hearing is allotted 20 minutes.
• Presented to three to five members of the PRB.
• Hearings are open to the public and held at the Thompson
Center in Chicago and legislative hearing rooms in
Springfield.
• The Petitioner can bring as many supporters as desired,
but only three others are allowed to testify.
• Hearings are presented in the following order:
▫ Petitioner Statement
▫ Witness(es) Statement(s)
▫ Board members questions.
▫ State’s Attorney’s Objections
▫ Rebuttal/Closing
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Health Care Waivers
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Health Care Waivers
http://www.idph.state.il.us/nar/
The Health Care Worker Registry lists individuals with a background check conducted
pursuant to the Health Care Worker Background Check Act (225 ILCS 46). It shows
training information for certified nursing assistants (CNA) and other health care workers.
Additionally, it displays administrative findings of abuse, neglect or misappropriations of
property. It is maintained by the Department of Public Health.
The Health Care Worker Background Check Act applies to all unlicensed individuals
employed or retained by a health care employer as home health care aides, nurse aides,
personal care assistants, private duty nurse aides, day training personnel, or an
individual working in any similar health-related occupation where he or she provides
direct care (e.g., resident attendants, child care/habilitation aides/developmental
disabilities aides, and psychiatric rehabilitation services aides) or has access to long-term
care residents or the living quarters or financial, medical or personal records of long-term
care residents. It also applies to all employees of licensed or certified long-term care
facilities who have or may have contact with residents or access to the living quarters or
the financial, medical or personal records of residents.
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/wEWBQK
/wEPDwU
To see information on a specific person: type in the last name, first name, and middle
name; then click on the “Search” button. If you do not know the full name, type in the part
of the name that you know. Last name is required. If you are unsure of the spelling, type in
enough of the name to make it identifiable. A list of health care workers matching your
criteria will show on the screen after you click the search button. Click on the desired
worker to see more information specific to that person.
The ability to search by social security number has been removed in an effort to prevent
identity theft. However, once the individual is selected you may type in their social security
number and verify that it is the correct number.
If you are accessing this site to verify a health care worker for employment purposes,
please print the screen with that individual’s specific information, showing that the social
security number has been verified. To print the screen click on “File”, “Print” on your web
browser’s menu bar. This screen print should be kept in the individual’s employment file.
Last Name:*
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First:
Middle:
Healthcare Worker Background Check Act
• Those with “disqualifying convictions” cannot work in
healthcare facilities.
• This applies to unlicensed healthcare workers (Certified
Nursing Assistants, Home Healthcare Workers, Personal
Care Givers) as well as others with “access to patients”
(food service, janitorial, medical records).
• A healthcare waiver allows a person to work in healthcare
without the employer being in violation of state law.
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Disqualifying Convictions
Not every conviction is disqualifying!!!
• Waiver is only needed for those listed by statute.
Time Frames for Applying
• Waiting periods apply based on # of convictions.
Waiting period starts from conviction date. See
Chart in Pro Se Packet.
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The Deceptively Simple Application
• More information is needed than what is asked for on
the application. See: Health Care Waiver Application
in Pro Se packet.
• Only need to explain disqualifying convictions and
provide court dispositions as proof of completing the
sentence satisfactorily (see previous slide on
“obtaining court records”).
• Only need to disclose non-disqualifying convictions
• No need to include RAP sheet as an attachment
• Toned down clemency petition.
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Process for Healthcare Waivers
• Completing application
and compiling supporting
documentation.
• Mailing to the Healthcare
Worker Registry.
Preparing Waiver
Application
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Receipt by
Registry & Need
for Fingerprints
•Applicant will receive letter
requiring fingerprints to be
taken through Illinois State
Police.
•Letter is received ~3 weeks
after receipt by Registry.
•If documents are needed, letter
will ask for those (i.e. proof of
completion of sentence).
•After receipt of all documents
and Livescan fingerprints, a
decision is made ~3-6 weeks
later.
•Registry meets every three
weeks to make decisions.
•Letter is mailed to applicant and
registry reflects decision.
Decision by
Healthcare Worker
Registry
Certificates of Relief from
Disabilities
Certificates of Good Conduct
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Timeline of Certificates
2003
Former Illinois State Senator
Barack Obama introduced
Senate Bill 0125, which
stalled in the Illinois Senate.
In May 2003 the language
from SB 0125 was
incorporated into Illinois
House Bill 0569, which was
signed into law and went
into effect January 2004.
The two types of Certificates
created by the legislation
were: (1) a Certificate of
Relief from Disabilities
(CRD), which helps restore
eligibility for 15
occupational licenses, and
(2) a Certificate of Good
Conduct (CGC), granted by
the Prisoner Review Board
(PRB), which demonstrates
rehabilitation to employers.
2004
2004 -Kimberly Lightford (DWestchester) and Illinois
State Representative Arthur
Turner (D-Chicago),
introduced legislation
(Senate Bill 0948) that was
signed into law August 12,
2004, as Public Act 93-0914,
to extend the original list of
15 licenses covered under
the original Certificates law
to 18.
2006
2006 - Illinois Senate Bill
1279. Sponsored by Illinois
State Senator Terry Link and
State Representative Arthur
Turner was introduced on
May 4, 2006. Governor
Blagojevich signed the bill
into law as Public Act 0941067 on August 1, 2006. The
law, which became effective
immediately.
Expanded the pool of
eligibility for Certificates of
Relief from Disabilities to
include individuals
convicted not more than
twice of a felony. Persons
convicted of crimes of
violence, criminal sexual
offenses, or Class X felonies
continue to be ineligible.
Expanded the occupational
licenses covered by
Certificates of Relief from
Disabilities from the former
18 to 27.
2009
2009 – Illinois Senate Bill
1050. Spearheaded by
primary sponsors Sen.
Kwame Raoul and Rep.
Barbara Flynn Currie, SB
1050 contains amendments
and expansion of legislation
concerning Certificates of
Relief from Disability (for
occupational licensing) and
Certificates of Good
Conduct (for general
employment and
reputation).
Effective January 1, 2010,
the pool of eligible offenses
for Certificates was
increased to include any
offense less than a Class X
felony that did not result in
"great bodily harm or
permanent disability,"
which is not a post-sentence
registration offense (sex,
arson, etc), aggravated DUI
or aggravated domestic
battery. Everything else is
eligible with not more than
two felonies.
20102012
See following pages.
Recent Updates
Effective January 1, 2010, Public Act 96-130 made the following changes:
Authority to review an individual’s criminal history and grant petitions for Certificates of Relief from
Disability and Certificate of Good Conduct was transferred from Illinois Prisoner Review Board to the Circuit
Court where the person was sentenced
The legislation significantly reduced the range of felony convictions which bar an individual from seeking a
certificate
A Circuit Court judge who grants a certificate of Certificate of Good Conduct has discretion to lift a
multitude employment barriers imposed by state law, which were collateral consequences of the
conviction
An employer who hires an individual who obtained a certificate is entitled to almost complete immunity
from tort actions arising out of claims of negligent hiring
2011- All new legislative procedures have been finalized with the Administrative Office and the Illinois
Courts and Department of Professional and Financial Regulation. To expand access to people with
records, Safer Foundation has sent certificates implementation processes information to all 102
counties in the state of Illinois.
Effective January 1, 2013, Public Act 97-1113 expanded eligibility by eliminating the limitation on the
number of felonies and reducing the waiting period following the most recent felony conviction from 3
years to 2 years.
What are Certificates?
• Certificates provide a form or relief for those with past
criminal convictions, to have a court-ordered finding
or rehabilitation to aid in the search for employment.
• “Certificates” are issued to “eligible offenders” after a
“rehabilitation review” before the circuit court after a
finding by “clear and convincing evidence” that a
person is rehabilitated.
• There are two types of Certificates – Certificates of
Good Conduct (CGC) which can remove statutory
employment barriers or Certificates of Relief from
Disability (CRD) which can provide evidence to
surpass discretionary licensing barriers issued by the
Illinois Department of Regulation.
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Who Can Apply – Based on the Record?
• To petition the Court for a Certificate, a person must
be an “eligible offender” as defined under 730 ILCS
5/5-5.5-5:
• No Class X felonies, aggravated driving under the
influence, aggravated domestic battery or any
offense that results in registration.
• No “forcible felonies” (murder, arson, kidnapping).
• No Aggravated Battery or other felony involving
violence or physical force resulting in “great bodily
harm or permanent disability.”
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Who Can Apply – Based on the
Person They Are?
• Good Conduct: A court must make a “specific finding
of rehabilitation” in that (1) the minimum period of
good conduct is met; (2) the relief to be granted is
consistent with the rehabilitation of the petitioner; and
(3) the relief to be granted is consistent with the
public interest. 730 ILCS 5/5-5.5-30(a).
• Relief from Disability: A court must find, based on
“clear and convincing evidence,” that (1) the relief to
be granted is consistent with the rehabilitation of the
petitioner, and (2) the relief to be granted is
consistent with the public interest. 730 ILCS 5/5-5.515(b).
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When Can a Person Apply?
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Good Conduct
Relief from Disability
2 years from the completion of
the felony offense
At the time of sentencing or
anytime thereafter
1 year from completion of a
misdemeanor sentence
At the time of sentencing is
appropriate if license was
suspended due to pending
arrest.
How Does One Apply?
• Through a verified petition filed with the Clerk’s Office.
• Heard by the Chief Judge of the District.
• Must include information on conviction, as well as
information on “rehabilitation.”
• Must include specific barrier or licensing bar sought to be
waived.
Petition
filed with
Court
Hearing
before
Chief
Judge
See: Sample Petition for Certificate.
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Order
Entered
What employment bars can be waived by CGCs?
• Any Illinois law that prohibits the hiring of individuals
with certain convictions, with the exception of law
enforcement.
 Challenge to know the statutory bars, will be addressed through the Task
Force on Employment Barriers, HB 297.
• Examples include: the Illinois School Code, the Park
District Code, the Metropolitan Transit Act, etc.
 This does not include unlicensed health care jobs because there is a
separate waiver process available through the Illinois Department of Public
Health.
• Examples of victories include the Chicago Public
Schools, Illinois State Board of Education, and
School Bus Driver permits through the Secretary of
State.
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What Licenses can CRDs by Issued for?
•
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Animal Welfare Act, Illinois Athletic Trainers Practice Act, Barber,
Cosmetology, Esthetics, and nail Technology Act of 1985, Boiler and
Pressure Vessel Repairer Regulation Act, Professional Boxing Act,
Illinois Certified Shorthand Reporters Act of 1984, Illinois Farm Labor
Contractor Certification Act, Interior Design Title Act, Illinois
Professional Land Surveyor Act of 1989, Illinois Landscape
Architecture Act of 1989, Marriage and Family Therapy Licensing Act,
Private Employment Agency Act, Professional Counselor and Clinical
Professional Counselor Licensing Act, Real Estate License Act of 2000,
Illinois Roofing Industry Licensing Act, Professional Engineering
Practice Act, Water Well and Pump Installation Contractors License
Act, Electrologist Licensing Act, Auction License Act, Illinois
Architecture Practice Act of 1989, Dietetic and Nutrition Services
Practice Act, Environmental Health Practitioner Licensing Act, Funeral
Director and Embalmers Licensing Code, Land Sales Registration Act
of 1999, Professional Geologist Licensing Act, Illinois Public Accounting
Act, Structural Engineering Practice Act of 1989.
Hearings for Certificates
• Hearings are heard before the Presiding Judge of the
district. The petition is filed with the Clerk’s Office of
that district – no filing fee.
• A “rehabilitation review” is conducted. Client must be
present, counsel will present evidence, but the Judge
will interject at any time to ask questions directly –
there are no rules of evidence!
• The State’s Attorney is allowed to object and ask
questions.
• Judge issues an Order granting the relief (see
Sample Proposed Order).
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Benefits of Certificates
 Convictions still must always be disclosed, as the
Certificate does not hide, alter, destroy or expunge the
record.
 “An employer is not civilly or criminally liable for an act
or omission by an employee who has been issued a
[certificate], except for a willful or wanton act by the
employer in hiring the employee who has been issued a
[certificate]. 730 ILCS 5/5-5.5-15(f) (CRD) and 730
ILCS 5/5-5.5-25(c) (CGC).
 A court has specifically found a person to be
“rehabilitated,” adding assurance that the person is a
good candidate despite the past criminal record.
 Removes statutory bars that would otherwise prevent
the hiring of a qualified candidate.
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Certificates of Eligibility for
Sealing
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What is a Certificate of Eligibility
for Sealing?
• A recommendation from the Illinois Prisoner Review Board to
the Circuit Court order the sealing of an offense that otherwise is
ineligible to be sealed under the law.
• Applies to Class 3 and 4 felonies, except:
–
–
–
–
Crimes of violence
An offense involving a firearm
Certain sex crimes
DUI or Aggravated DUI
• Eligibility begins 5 years after completion of sentence
• One offense; once in a lifetime
• If denied, must wait 4 years to reapply or to petition for executive
clemency
• Examples of non-sealable cases that would qualify:
manufacture/delivery of cannabis, perjury, damage to property,
obstruction of justice, state benefits fraud
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Supplemental Materials
- Sample Petition for Certificate of Good
Conduct
- Sample Proposed Good Conduct Order
- Sample Health Care Waiver Application
- Pro Se Health Care Waiver packet
- Pro Se Clemency Packet
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Contact Information
• Paul Haidle, Supervising Attorney,
Criminal Records Program. 312 7382452 x423. paulhaidle@cgla.net
• Beth Johnson, Director of Legal
Programs. 312 738-2452 x419.
bethjohnson@cgla.net
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