Forms of Relief from a Criminal Record
I.
Facts vs. Myths of Criminal Records
A.
B.
C.
D.
II.
All arrests are public record – even when the case was dismissed or the person was found
not guilty.
Criminal records never go away – not after 7 or 10 or 25 years!
There is no such thing as an automatic expungement. Court filings are required to remove
records from public view.
A person is an adult at the age of 17 (or 18 for misdemeanors beginning January 1, 2010)
Expungement & Sealing – Criminal Identification Act (20 ILCS 2630/5.2)
A.
EXPUNGEMENT
1.
Expungement is available if a person has never been convicted of a criminal
offense. The entire record is essential to this analysis.
2.
Convictions include a finding of guilt resulting in one of the following sentences:
a.
Probation
b.
Conditional Discharge
c.
Time Considered Served
d.
Jail or Prison Time
e.
Fines for Ordinance Violations
3.
The following are not convictions:
a.
b.
c.
d.
4.
Acquittals/Dismissals
i.
Stricken off with Leave to Reinstate (SOL)
ii.
Found Not Guilty (FNG)
iii.
Nolle Prosequi
iv.
Finding of No Probable Cause (FNPC)
v.
Released without Charging (RWOC)
vi.
Non-Suit (for ordinance violations)
Supervision (successfully completed)
710-1410 Probation (successfully completed)
TASC Probation (successfully completed & vacated)
If a record is a combination of the above non-convictions, you can expunge…..so
long as the waiting period has passed.
a.
b.
Acquittals & Dismissals = immediately expungeable, except
for SOL and Non-Suit (requires 120 days)
Supervision = 2 years after successful completion…EXCEPT…
1
c.
d.
e.
B.
Certain supervisions require a 5 year waiting period from completion,
most notably Retail Theft (also includes domestic battery, criminal
sexual abuse, insurance violations and scrap processor violations).1
710-1410 and TASC Probations = 5 years after termination along with
proof of a clean drug test taken within 30 days of filing.
Three supervisions are ineligible for expungement: DUI, Reckless
Driving, and Criminal Sexual Abuse of a minor
SEALING
1.
If a person has been convicted, they can only seal their criminal record. One
conviction makes the entire record ineligible for expungement, but “partial
sealing” is allowed.
2.
Misdemeanors
a.
All acquittals/dismissals are sealable
b.
Convictions and supervisions are sealable if they are not
violent or sexual in nature.
c.
The following misdemeanors are not sealable upon a finding of guilt.
i.
Violent crimes = battery; assault; reckless conduct; domestic
battery; criminal sexual abuse
ii.
Sexual Crimes = soliciting a prostitute; patronization; public
indecency; obscenity; pimping
iii.
Driving Under the Influence, Reckless Driving
iv.
Violations of Humane Care of Animals Act = dog fighting;
animal cruelty
3.
Felonies
a.
b.
c.
d.
4.
Only three felonies are eligible to be sealed – all Class 4 felonies:
i.
Prostitution
ii.
Possession of Cannabis
iii.
Possession of Controlled Substance
Felonies outside of the above three – even when a person is not convicted –
are not sealable (except when they are “released without charging”).2
Carry/Possession of Firearm between the years of 1995 and 1999 can be
amended to a misdemeanor, as the “Safe Neighborhoods Act” was
declared unconstitutional.
Proof of clean drug test is required when sealing a Class 4 felony drug
conviction
Waiting Periods
a.
No waiting period for dismissals/acquittals.
b.
4 years after completion of last conviction and the longest waiting
period must pass to seal any finding of guilty on a record.
1
Retail Theft supervisions will change to a 2 year waiting period, effective January 1, 2012.
HB 298 amends the law to allow all offenses resulting in acquittal or dismissal to be sealed, regardless of the underlying
charge. The bill has passed through the General Assembly and is awaiting Governor Quinn’s signature.
2
2
5.
C.
When a record is sealed, a person can answer “no” to the question…”have you
ever been convicted?” Protection is provided under the Illinois Human Rights
Act. However, certain agencies still have access to sealed felony conviction
records.
Similarities & Differences Between Expungement & Sealing
1.
2.
3.
4.
5.
6.
7.
Both are a court filing in the county where the record occurred (cases in different
counties/districts require separate filings).
In Cook County, $120 to petition, plus $9 per case upon filing – fee waivers are
available if a person cannot afford the filing fee (based on federal poverty
guidelines).
Expungement and sealing is a discretionary remedy. Law enforcement is
involved in the process and allowed to object. Hearings are held upon objection. 3
Court orders the Clerk’s Office, arresting agency, Illinois State Police and also the
Federal Bureau of Investigation to expunge or seal the records.
5 year waiting period expunged records are available to law enforcement only if a
person is re-arrested and charged with a same or similar offense.
All sealed records can be viewed by law enforcement.
Sealed felony conviction records can be viewed by any agency “authorized by
law.” These are agencies requiring fingerprint based background checks.
a.
b.
c.
d.
e.
f.
g.
h.
III.
Schools
Park Districts
Transportation
Department of Children & Family Services
Health Care Organizations
Department of Corrections
Firefighter Applicants
Some governmental agencies
Petitions for Executive Clemency
A.
B.
C.
D.
E.
F.
If a person cannot seal certain convictions on their record, they can petition the Governor
for a pardon. However, pardons are extraordinary remedies.
Many clemency petitions have been pending for years, so this is not a quick remedy for
individuals seeking a cleared record.4
Clemency petitions are reviewed by the Prisoner Review Board (PRB) – www.state.il.us/prb
Written petition, detailing your criminal record, personal life history and reasons for
seeking clemency. Supporting documentation is essential to provide proof of rehabilitation.
Hearings are held 4 times per year – April & October in Chicago – January & July in
Springfield – petitions are due ~75 days prior to hearing.
A granted pardon, with authorization to expunge, allows a person to expunge that record in
the circuit court.
3
CGLA and Chicago Legal Clinic run the objection court call at 26 th and California, representing all petitioners
without private counsel, at the request of Presiding Judge Paul Biebel.
4 Governor Quinn, upon taking office, inherited a backlog of 2,500 petitions, dating back through 2003. Since
taking office, he’s decided upon
3
IV.
Waivers and Certificates
A.
Health Care Waivers – 225 ILCS 46
1.
2.
3.
4.
B.
Certificates of Relief from Disability – 730 ILCS 5/5-5.5-10
1.
2.
3.
4.
C.
Available to any “eligible offender” anytime during or after sentencing from the
circuit court upon petition.
“Eligible offenders” are those with no more than 2 felony convictions that are not
Class X, forcible felonies resulting in great bodily harm or aggravated DUI
offenses.
Available for certain licensed professions that have a barrier based on conviction
records.5 These are professions licensed by the Illinois Department of
Professional Regulation.
Provides employers protection from negligent hiring claims – but again, do not
have to be accepted by an employer.
Certificates of Good Conduct – 730 ILCS 5/5-5.5-25
1.
2.
3.
4.
V.
Certain convictions prohibit a person from working in health care under the
Healthcare Worker Background Check Act.
Waivers are available, upon application, if granted by the Illinois Department of
Public Health for non-licensed health care workers.
Similar to a clemency petition, must attach supporting documentation and prove
“rehabilitation.”
Employers do not have to accept waivers, but it does allow an employer to hire
qualified workers without being in violation of the law.
Available to eligible offenders (defined above) and issued by the circuit court.
Waiting periods include 1 year from a misdemeanor offense and 3 years from the
last felony offense.
Can waive any employment barrier under Illinois law. Individuals go through
“rehabilitation hearings” before the Presiding Judge of the district
Provides employer’s protection from negligent hiring claims.
Laws Governing the Use of Criminal Records
A.
Illinois Human Rights Act – 775 ILCS 5/2-103
1.
It is a civil rights violation for an employer to use arrests that did not result in a
finding of guilt in an employment decision.
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, Eectrologist 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
5
4
2.
3.
4.
B.
Fair Credit Reporting Act - 15 U.S.C. § 1681 et seq.
1.
2.
3.
4.
VI.
If you are denied a job or promotion based on your criminal record, you are
entitled to a copy of the background check, or at least the name of the company
that ran your record.
Employers must have written authorization to conduct a background check.
You are allowed to have your background corrected if any errors are discovered –
including if the record was sealed or expunged.
Non-convictions are only allowed to be reported for 7 years! This includes
supervision and 710-1410 probation cases.
Resources
A.
B.
C.
D.
E.
F.
G.
H.
6
Employers cannot use expunged or sealed records in employment decisions.
Applications must state that a person need not disclose an expunged or sealed
record!
Employment applications can only ask whether a person has been found guilty –
it cannot ask if a person has ever been arrested!
Charges are filed with the Illinois Department of Human Rights.
Cabrini Green Legal Aid - Expungement Help Desk
1.
Daley Center – Room 1006, Monday-Friday, 9:00-12:00, serves first 25 clients
2.
Chicago Police Department Rap Sheet required6
CGLA Criminal Records Program – 312-738-2452 for intake appointment
1.
Must be Chicago resident and meet income guidelines for representation.
2.
Handles cases for clemency petitions, health care waivers, certificates, Illinois
Human Rights Act violations, provides educational outreach and advocates for
policy changes.
Chicago Legal Clinic – Ex-Offender Advocacy Program – 773-731-1762 for intake
1.
Handles cases for clemency petitions, health care waivers, certificates,
expungement and sealing petitions, provides educational outreach and advocates
for policy changes.
Sargent Shriver National Center on Poverty Law
1.
Soros Fellow, Marie Claire Tran-Leung, is working on criminal records related
issues in housing.
2.
Equal Justice Fellow, Todd Belcore, is working on criminal records related issues
in employment and professional licensing.
Legal Assistance Foundation – Employment Project
1.
Title VII and Illinois Human Rights Act cases
2.
Fair Credit Reporting Act cases
Illinois Legal Aid Online
Office of the State Appellate Defender
1.
Provides advice and paperwork to callers for expungement and sealing issues
throughout the State of Illinois. Mandated by statute.
2.
http://www.state.il.us/defender/exp.html
Moran Center – Skokie Help Desk – Tuesday & Thursday, 10:00-12:00
Rap sheets are available for $16 through the Chicago Police Department, 4770 S. Kedzie, Mon. – Fri., 8:00-12:00
5