DePaul NLAP
Help Desk Volunteers
Criminal Records Corps Recruits
Criminal Records Training
Cabrini Green Legal Aid
Cynthia Cornelius, Equal Justice Works Fellow
Sponsored by the Albert and Anne Mansfield Family Foundation
Beth Johnson, Program Manager
740 North Milwaukee Avenue Chicago, IL 60642
bethjohnson@cgla.net cynthiacornelius@cgla.net
p 312.738.2452
f 312.850.4783
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Introducing CGLA
Our purpose is to answer God’s call to seek justice and mercy for those
living in poverty by providing legal services that strengthen lives, families,
and communities.
We provide high impact legal services in the areas of:
•criminal records,
•housing,
•family, and
•criminal defense.
We integrate legal and social services through strategic
partnerships and in-house support staff to create longterm impact on those we serve.
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Part I Agenda
•Expungement and Sealing
•The Law and Legal Procedures
Criminal Records Corps Training
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Expungement and Sealing
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Why are Expungement and
Sealing Important?
• Those with past criminal records have made mistakes.
They are seeking a second chance to reintegrate into
society without the stigma of a past criminal record.
• Three societal factors brought us to do this work today:
– Three decades of “get tough on crime.”
– Ever increasing zero tolerance attitude in society to those
with past criminal records.
– Ease of access to public records.
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Why are Expungement and
Sealing Important?
• In 2008, more than 2.3 million adults were incarcerated in
the U.S. 1
• On average, one out of every 28 children in the U.S.
has a parent behind bars. One out of every 9 African
American children has a parent behind bars. 2
• By age 23, approximately 1/3 of Americans have
been arrested. 3
1 http://www.pewstates.org/uploadedFiles/PCS_Assets/2008/one%20in%20100.pdf
2http://www.pewstates.org/uploadedFiles/PCS_Assets/2010/Collateral_Costs(1).pdf
3http://www.nytimes.com/2012/01/10/opinion/paying-a-price-long-after-the-crime.html?_r=0
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Why are Expungement and
Sealing Important?
• According to the Society of Human Resources
management – the largest association of human
resources personnel – 92% of their members perform
criminal background checks on some or all job candidates.
• All records are public record, whether or not a person is
found guilty. Many people who have a criminal record that
shows up on a background check have never been
convicted of a crime (U.S. Bureau of Justice Statistics,
Felony Defendants in Large Urban Counties, 2004 (April
2008).
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Why are Expungement and
Sealing Important?
• Arrests and non-conviction information will appear in a person’s
criminal history forever, unless it is expunged or sealed.
• In FY 2012, the CGLA Expungement/Sealing Help Desk served
over 4,000 individuals.
• Over 81% of Help Desk clients are seeking to clear their records
because employment has been denied or they have been fired
from a job.
• In FY 2009, 30% of clients were employed.
• In FY 2010, 20% were employed, with only 11% employed fulltime.
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Why are Expungement and
Sealing Important?
• Our clients come from all walks of life – they are parents,
community members, recovering addicts, ministers, students –
they are like all other members of society with one difference:
they have a past mistake solidified in a criminal record.
• Although anyone can have a criminal record, it has a disparate
impact on those from low-income, minority communities. In
2005, whites accounted for 66% of the general population and
African-Americans, 15%. Whites accounted for 28% of the
prison population and African-American accounted for 61%
(Illinois Dept. of Corrections 2005).
• In Cook County in 2005, almost 80% of those entering the
felony court system were African-American; 13% were Latino;
8% were white.
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The Law
and
Legal Procedures
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Ineligible
Misdemeanor
and Felony
Offenses
Criminal Records Basics
Arrest
Criminal Complaint
Waiting
Period
Waiting
Period
•Dismissals/Acquittals
•Supervision
•710-1410 Probation
•Vacated TASC Probation
Supervisions for:
DUI
Reckless Driving
Sex w/ Minors
Expungement
All or Nothing
Convictions
Sealing
Case by Case
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What are Expungement and Sealing?
• Two ways to petition the Court in Illinois to remove records
from public view.
• Statutory remedy – Criminal Identification Act (20 ILCS
2630/5.2)
• A court filing that is always discretionary. Never
automatic!
• Removes records from public view by ordering the
following agencies to expunge or seal the records: Clerk’s
Office, Arresting Agency, Illinois State Police (which
forwards the order to the FBI).
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What are the Benefits of
Expungement and Sealing?
• When employers utilize agencies to conduct
background checks, the background will show “no
record.”
• Individuals are provided protection from employment
discrimination under the Illinois Human Rights Act,
775 ILCS 5/2-103.
–
Unless otherwise authorized by law, it is a civil rights violation for any employer,
employment agency or labor organization to inquire into or to use the fact of an arrest
or criminal history record information ordered expunged, sealed or impounded under
Section 5.2 of the Criminal Identification Act as a basis to refuse to hire, to segregate,
or to act with respect to recruitment, hiring, promotion, renewal of employment,
selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges
or conditions of employment.
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What is the Difference between
Expungement and Sealing?
• Who has access to the records!
• Expunged records can only be accessed for certain
offenses requiring a five year waiting period upon being
charged for a same or similar offense (e.g., 710-1410
qualified probation).
• All sealed records can be accessed by law enforcement
(police, prosecutors, the courts).
• Sealed felony conviction records can be accessed by any
employer authorized by law (those requiring fingerprintbased background checks).
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How are Records Created?
• A person is either arrested for a crime or a complaint is
filed with the State’s Attorney’s Office, initiating a court
case.
• Arrests happen by police departments, either upon a
complaint or witnessing a crime.
• Person is booked (fingerprints, mug shots), creating a
“Rap” Sheet. An arrest report is made.
• Decision whether to criminal charge with a felony is made
by Felony Review Division. It’s at this stage a person can
be “released without charging.”
• Complaints filed with State’s Attorneys can result in a
person being “summoned” to court.
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How are Records Created?
• For those that are not released without charging, they can
be released on an “I-Bond” (“recognizance bond”) or wait
to go before a judge at a bond hearing, at which point they
can be given a “D” or “C” bond (“deposit” or “cash”).
• It’s at this point an electronic public record is created and
maintained by the Clerk’s Office, in addition to a court file.
Cook County’s criminal records are not available online,
by order of Chief Judge Timothy Evans.
• An arrest and charge alone creates the public record!
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Court Proceedings
• The State’s Attorney’s Office decides what to
prosecute a person for. Arrests can be for one
offense and the charge can go up or down from
there.
• Ordinances vs. misdemeanors vs. felonies.
– Ordinances violations are charged under City Municipal
Codes.
– Misdemeanors are crimes punishable by less than one year
in the county jail; identified as Class A, B and C.
– Felonies are crimes punishable by one year or more in
prison, and are identified as Class X, 1, 2, 3 and 4 offenses.
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Court Proceedings – Dispositions
• Dispositions are the result of case, the most important
thing for us to determine eligibility for expungement or
sealing. A case can be dismissed, or a person can be
acquitted or found guilty and sentenced.
• Cases can be dismissed by the prosecutor.
– Stricken off with Leave to Reinstate (SOL) – 120 to 160 days
to reinstate the charges.
– Nolle Prosequi: cannot reinstate the charges.
– Non-Suit (ordinance violations, prosecuted by Corporation
Counsel) – 120 to 160 days to reinstate the charge.
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Court Proceedings – Dispositions
• Cases can be dismissed by the court at preliminary
hearing – only for felony charges.
– Finding of No Probable Cause (FNPC)
• A person can be acquitted by a judge or jury after
trial.
– Finding of Not Guilty (FNG)
• Older rap sheet dismissals include: Dismissed with
Prejudice (DWP), Leave to File Denied (LFD)
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Summary of Dismissals and
Acquittals
•
•
•
•
•
•
•
•
Stricken off with Leave to Reinstate (SOL)
Nolle Prosequi
Finding of No Probable Cause (FNPC)
Finding of Not Guilty (FNG)
Non-Suit
Dismissed with Prejudice (DWP)
Leave to File Denied (LFD)
Released without Charging (RWOC)
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Court Proceedings – Dispositions
(Non-Conviction Sentences)
• A person can be found guilty, but not convicted.
There are several deferred sentences, that upon
successful completion, are not deemed a conviction
under the law.
– Supervision, 710-1410 Probation, TASC Probation
• Court disposition reads a person is “Found Guilty.”
• The sentence must be successfully completed, or
else it is deemed a conviction.
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Court Proceedings – Dispositions
(Non-Conviction Sentences)
• Supervision
– Typically given to first time offenders. Provides for other conditions,
such as community service, no arrest.
– “At the conclusion of the period of supervision, if the court
determines that the defendant has successfully complied with all of
the conditions of supervision, the court shall discharge the
defendant and enter a judgment dismissing the charges.” 730 ILCS
5/5-6-3.1.
– Court disposition reads: “Supervision/Discharged”
– Turns into a conviction if court disposition reads: “Supervision /
Unsatisfactory” or “Supervision Revoked”
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Court Proceedings – Dispositions
(Non-Conviction Sentences)
• 710-1410 Probation
– Offered to first time drug offenders. Typically involves other
conditions, such as reporting to probation officer and drug
testing.
– “discharge and dismissal under this Section is not a
conviction for purposes of this act or for purposes of
disqualification or disabilities imposed by law upon
conviction of a crime.” 720 ILCS 550/10(g) and 570/410(g).
– Court disposition reads: “Satisfactorily Completed”
– Turns into a conviction if court disposition reads:
“Terminated Unsatisfactory” or “Probation Revoked”
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Court Proceedings – Dispositions
(Non-Conviction Sentences)
• TASC Probation
– Offered to first time offenders who suffer from alcoholism or
drug addiction. Typically involves other conditions, such as
reporting to probation officer and drug testing.
– “Upon successful fulfillment of the terms and conditions of
probation the court shall discharge the person from
probation…[U]pon motion, the court shall vacate the
judgment of conviction and dismiss the criminal proceedings
against him.” 20 ILCS 301/40-10(e).
– Court disposition reads: “Vacate Judgment of Conviction”
and “Probation Terminated – Satisfactory”
– Turns into a conviction if court disposition reads:
“Terminated Unsatisfactory” or “Probation Revoked”
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Court Proceedings – Dispositions
(Convictions)
• The following sentences are entered after a plea or
finding of guilt and are convictions under the law:
–
–
–
–
–
Probation
Conditional Discharge
Time Considered Served
Jail (CCDOC) or Prison Time (IDOC)
Fines (for ordinance violations, not in connection with
supervision)
• Convictions can be reported on background checks
for all of time.
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Basic Breakdown of
Expungement & Sealing
• A person can expunge if they have never been
convicted of a criminal offense. One conviction
makes the entire record ineligible for expungement.
• For those that have been convicted, sealing may be
possible. Sealing is available to minor, non-violent,
non-sexual misdemeanor convictions and three
felony convictions.
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Expungement Eligibility
• A person can expunge if they have never been
convicted of a criminal offense.
• One conviction, at any point, in any jurisdiction, bars
expungement of all criminal records.
• “Criminal offenses” are not only criminal cases, but
ordinance violations that are “criminal in nature”
(charged in criminal court) and Class A and B traffic
violations (driving on suspended/revoked license,
driving under the influence, reckless driving).
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Expungement Waiting Periods
• A person can expunge any non-conviction record so
long as the statutory waiting period has been met.
• Acquittals and dismissals have no waiting period
(except for SOL or non-suit, which is 120-160 days).
• Supervision has a 2 year waiting period from the
successful completion of the sentence.
• 710-1410 and TASC probation has a 5 year waiting
period from the successful completion of the
sentence (and requires proof of a clean drug test
taken within 30 days of the filing).
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Expungement Exceptions
• All records can be expunged, so long as there are no
convictions, with limited exceptions.
• Sentences of supervision for the following offenses,
even if satisfactorily completed, cannot be expunged.
– Driving Under the Influence
– Reckless Driving
– Sex Offenses Against Minors
• However, even if a person has one of these
sentences, it does not bar expungement of the rest of
the criminal record, as the only bar to expungement,
is a conviction (which supervision is not).
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Sealing Eligibility
• Prior to 2004, the only remedy for a person with a
conviction on their record was a pardon from the
Governor. The sealing law provided the first
alternative to that extraordinary form of relief.
• Sealing is not available for all offenses, as there are
many exceptions and waiting periods in place. Those
whose convictions are ineligible for sealing must still
go through the process of petitioning for executive
clemency through the Prisoner Review Board.
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Sealing Eligibility- Misdemeanors
• Misdemeanors that are non-violent, or non-sexual in
nature can be sealed under the law. These include
the following:
–
–
–
–
–
–
–
Theft
Trespass
Damage to Property
Disorderly Conduct
Possession of Cannabis
Prostitution
Endangering Health of Child
- Resisting arrest
- Retail theft
- Possession of a Weapon
- Mob action
- Gambling
- Deceptive practices
- others…
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Sealing Exclusions- Misdemeanors
• Only applies when a person is found guilty – supervisions
or convictions of the following (not dismissals/acquittals).
• Offenses Under the Crime Victims Compensation Act:
Battery, Assault, Domestic Battery, Violations of Order of
Protection, Reckless Conduct
• Sex Offenses under Article 11 of the Criminal Code:
Soliciting a Prostitute, Patronizing a Prostitute, Public
Indecency, and a bunch of crimes you will never see
charged (pimping, fornication, adultery, bigamy, etc.).
• Violations of the Humane Care for Animals Act: Dog
Fighting, Animal Cruelty
• Driving Under the Influence and Reckless Driving
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Sealing Eligibility- Felonies
• Only three felony convictions can be sealed:
– Class 4 Possession of Cannabis (30-500 grams)*
– Class 4 Possession of Controlled Substance*
*Requires proof of clean drug test, taken within 30 days of filing,
to be attached to the petition.
– Class 4 Prostitution
• One felony conviction can be amended at any time, a
“void” conviction under People v. Cervantes.
– Carry/Possession of Firearm between 1995 and 1999.
– IL Supreme Court declared the underlying law
unconstitutional, making the conviction void ab initio.
• Felony cases have a “C” or “CR” in the case number;
include municipal number on petition.
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Sealing – Waiting Periods
• Acquittals and dismissals have no waiting period
(except for SOL or non-suit, which is 120-160 days).
• Convictions or supervision require 4 years from the
completion of the last sentence.
• The 4 year waiting period applies to any finding of
guilt on the record – convictions and supervisions –
no matter how long ago it occurred. Only dismissals
or acquittals can be sealed at any time.
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Ineligible
Misdemeanor
and Felony
Offenses
Criminal Records Basics
Arrest
Criminal Complaint
Waiting
Period
Waiting
Period
•Dismissals/Acquittals
•Supervision
•710-1410 Probation
•Vacated TASC Probation
Supervisions for:
DUI
Reckless Driving
Sex w/ Minors
Expungement
All or Nothing
Convictions
Sealing
Case by Case
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Determining Eligibility
• Clients bring us their police records, and we look up
their court records. Each and every arrest must be
accounted for.
• After looking up every case, we determine if there is
a conviction on the record. If there is a conviction,
we know expungement is not an option. If there is
not a conviction, we determine if any waiting periods
are in place.
• If there are convictions, we determine whether the
offenses are eligible for sealing. We also look as to
whether there are any waiting periods in place.
• YOU LEARN THIS REAL TIME!
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Determining Eligibility
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Criminal Records Research
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Criminal Records Research
• Create case chart
• Complete Criminal Records
Analysis Form
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When a Record is Eligible
• Once determining a person is eligible, further
inquiries must be made.
– Are there any arrests outside of Cook County?
– Are there any major traffic violations?
• Does the person require a drug test to file?
• If the answers are “no,” you can proceed to fill out the
court forms by entering information from case charts
into an Excel spreadsheet that populates all required
forms.
• Determine whether client qualifies for a fee waiver (if
not, $120 to file, plus $9 per case).
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When a Record is Eligible
• Prepare petitions upon receipt of RAP sheet
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Where Petitions are Filed
• Petitions are filed in Clerk’s Office in the district(s) in which
the cases occurred. Cook County has six municipal
districts and petitions are divided by arresting agency.
–
–
–
–
–
–
District 1:
District 2:
District 3:
District 4:
District 5:
District 6:
Chicago
Skokie
Rolling Meadows
Maywood
Bridgeview
Markham
• District is determined by the third number in the case
number (98512345601 – year, district, random #s)
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After a Petition is Filed
• The Clerk’s Office serves notice of the filing on four
agencies: State’s Attorneys, Arresting Agency,
Illinois State Police, and Chief Legal Officer (of
arresting agency).
• Each agency has 60 days to object.
• Procedures vary by district, but if no objection is filed,
the petition is granted. If an objection is filed, a
hearing is set. Court dates are set upon filing in
District 1, 4 and 6.
• Presiding Judge in each district rules on petitions.
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Objections
• The Illinois State Police only objects if a
person is statutorily ineligible. ISP always
sends notice to petitioner.
• State’s Attorneys object both on statutory
grounds and discretionary grounds,
including:
–
–
–
–
–
–
Multiple arrests, long criminal history
Crimes of violence, domestic violence
Partial expungement or sealing
Orders of Protection
Unsatisfactory completion of sentence
Nature of the offense
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Hearings
• The Presiding Judge weighs the petitioner’s interest
in having a clear record against the State’s interest in
maintaining the record for public safety, based on the
following factors set forth by case law (People v.
Wells):
–
–
–
–
–
Length of time from the record and the petition
Petitioner’s employment and educational history
Strength of the case against the Petitioner
Hardship the Petitioner should endure should the relief be denied
State’s reasons for wishing to retain the record
• If a petition is denied, a person has 60 days to file a
Motion to Reconsider.
• CGLA and Chicago Legal Clinic handle the court call
in Chicago, two afternoons per week.
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When a Petition is Granted
• All agencies entitled to notice have 60 days to file a
Motion to Vacate or Amend the Order.
• The Clerk’s Office removes the records from public
access, so background checks come up “No Record.”
• The Illinois State Police and Arresting Agency have 60
days to comply with the court order – both send
verification to the Petitioner that they have complied and
removed the record.
• Fingerprint checks come up no record, except for sealed
felony convictions, which are released to employers
mandated to take fingerprints.
• The Illinois State Police also forwards the records to the
FBI (although that agency does not send verification).
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Know Your Rights
• Sealing allows someone to answer “No” to the question,
“Have you ever been convicted?”
“Applications for employment must contain specific language which states
that the applicant is not obligated to disclose sealed or expunged records of
conviction or arrest.” 20 ILCS 2630/12
• Employers cannot ask if a person has had a record
expunged or sealed, or ask if they have been arrested.
“Employers may not ask if an applicant has had records expunged or
sealed.” 20 ILCS 2630/12
• Fair Credit Reporting Act
– Requires employers to receive authorization and provide copies of
background checks.
– Allows individuals to check for accuracy, including the reporting of
expunged or sealed records.
– Allows individuals to correct information.
• Illinois Human Rights Act
– Employers cannot use records ordered expunged or sealed in employment
decisions.
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Other Forms of Relief
• Petitions for Executive Clemency
– Those that cannot seal a conviction can petition the
Governor for a pardon, which would allow a person to
expunge a conviction.
• Health Care Waivers
– Issued by IL Dept. of Public Health to waive statutory
barriers under Healthcare Worker Background Check Act.
• Certificates of Good Conduct
– Issued by the Court to waive statutory barriers under Illinois
laws. Certain qualifications and waiting periods
• Certificates of Relief from Disability
• Certificates of Eligibility for Sealing
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Questions?
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