1

Alternative Forms of Relief of Criminal Records Relief

IMPACT Chicago Second Chance Project

2

How CGLA Fills a Major NeedThere 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.

Justice. Opportunity.

Second Chances.

3

Expungement & Sealing Basics

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 misdemeanor or

certain limited felony offenses.

4

After Expunging or Sealing….

•Requires authorization to run background checks and opportunity to correct information.

•Prohibits employment discrimination based on expunged, sealed or impounded records.

•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.

Answering “No” to the question.

Employment Applications

Fair Credit Reporting

Act

Illinois Human

Rights Act

5

Ineligible to Seal or Expunge?There is Still Hope!

Expungement and sealing is not the only

answer

Waivers of statutory

barriers are available

Incentives for employers

are available

Mitigation opportunities are available

6

Alternative Forms of Relief

Health Care Waivers

• Removes statutory barriers to working in health care facilities.

• Available for non-licensed 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.

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.

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.

7

Misdemeanors That May Require AFRs

• *Battery,* *assault,* *aggravated assault,* domestic battery, *reckless conduct,* violations of order of protection.

Crimes of Violence

• Solicitation of Prostitute, Patronizing a Prostitute, Public Indecency, and many others that are less common. NOT PROSTITUTION!

Sex Crimes Under Article 11

• DUIs & reckless driving*, dog fighting, animal cruelty.• *Except youthful offenders defined under 20 ILCS 2630/5.2(a)(3)(A).

Other offenses against public morals

*HB 2378*Eff. 1/1/15

8

Felony Convictions needing AFRs

• Possession of a Controlled Substance and Possession with Intent to Deliver• Possession of Cannabis• Prostitution (although no longer a felony offense!)• Methamphetamine Precursor Control Act• Retail Theft• Theft• Deceptive Practices• Forgery• Possession of Burglary Tools

Eligible for sealing… but may still need an AFR

• Regardless of Class of Offense• Regardless of Age• Regardless of Circumstances

ALL Other Felony Convictions are Ineligible to be Sealed

9

Similarities Between Forms of Relief

Explanation of Conviction

Proof of “Rehabilitation”

Specific to Record

Context of Criminal History

in Life History

Educational and Employment

History

Reasons and Justification for Specific Relief

10

Proving “Rehabilitation”

Following are common scenarios resulting in convictions…how to address each:

Drug UseTheft or Property Crimes

Drug Dealing

Gang Membership

Crimes of Violence

11

Documents to Prove Rehabilitation

Letters of Support – See Supplement 3: 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

12

Obtaining Criminal Records

Sometimes information from the court file itself is required to refresh recollection, get supporting documents

or prove the facts and circumstances alleged.

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!

Misdemeanor files for Chicago can be

obtained at the Daley Center, 50 W. Washington, Room

1006.

Felony files for Chicago can be

obtained at 26th & California, 5th Floor Clerk’s Office. All

files must be ordered by calling

773-869-1762 ~approximately 3 days to come in.

Other criminal cases must be obtained from

appropriate Clerk’s Office in

district/county case was heard.

13

Health Care Worker Waivers

14

Health Care Waivers

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.

http://www.idph.state.il.us/nar/

15

Health Care Worker Registry 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.

16

Health Care WaiversThe Healthcare Worker Background Check Act• Prohibits healthcare employers from employing persons

with “disqualifying convictions.”

Not every conviction is disqualifying!!!• Waiver is only needed for those listed by statute.

Complete list of disqualifying convictions at: http://www.idph.state.il.us/nar/disconvictions.htm

Time Frames for Applying • Waiting periods apply based on # of convictions. Waiting

period starts from conviction date (as opposed to from end of sentence).

17

Disqualifying Offenses under HCWBCA

MISDEMEANORS FELONIES APPEALS PROCESS- Theft*- Retail Theft*- Criminal Trespass to Residence*- Practice Nursing without license*- Assault- Battery- Domestic Battery- Endanger Life/Health of Child*- Criminal Trespass to Residence*- Unlawful Use of Weapon (UUW)* * Sealable Offenses- 4 years after completion of last conviction.

- Unlawful Restraint- Forcible Detention- Child Abduction- Tampering w/ food/drug/ cosmetic- Aggravated stalking- Home Invasion- Theft (includes retail and identity)*- Forgery*- Robbery- Vehicular Hijacking- Burglary and residential burglary- Arson- Reckless Discharge of Firearm- Armed Violence- Practice Nursing w/o a license- Cruelty to children- Receive/Sell/ Use stolen Credit card- Criminal Drug Conspiracy- Methamphetamine Violations- Manufacture, Delivery, or Possession w/ intent Cannabis/Controlled Substance

- Murder (1st, 2nd degree)- Solicitation of Murder- Involuntary Manslaughter- Kidnapping- Indecent solicitation of child- Sexual misconduct with disabled- Exploitation of child- Child Pornography- Aggravated Domestic Battery- Aggravated battery- Heinous Battery- Criminal Sexual Assault- Criminal Sexual Abuse- Abuse/Neglect- LTC resident- Criminal Abuse elderly/disabled- Armed Robbery- Aggravated Vehicular Hijacking- Aggravated Robbery

18

Waiting Periods to Apply

NUMBER OF DISQUALIFYING

OFFENSES

DISQUALIFYING MISDEMEANOR CONVICTIONS

DISQUALIFYING FELONY

CONVICTIONS

1 1 YEAR 3 YEARS

2-3 3 YEARS 5 YEARS

MORE THAN 3 5 YEARS 10 YEARS

APPEALS CASES 10 YEARS FROM FELONY CONVICTION

19

The Deceptively Simple ApplicationMore information is needed than what is asked for on the application. (See Supplement 16: Health Care Waiver Application.)

Only need to explain disqualifying convictions and provide court dispositions as proof of completing the sentence satisfactorily. (See Supplement 14: Steps in the Health Care Waiver Process.)

Only need to disclose non-disqualifying convictions.

Do not include the RAP sheet as an attachment.

Toned down clemency petition.

20

Process for Healthcare Waivers

• Complete application and compile supporting documentation.

• Mail to the Healthcare Worker Registry.

Preparing Waiver Application

•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).

Receipt by Registry & Need for Fingerprints •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

Process typically takes 6-8 weeks

21

Certificates of Good Conduct and Relief from Disabilities

22

Certificates of “Rehabilitation” • Can remove specific statutory barriers.• Waiting period is 2 years from

completion of felony conviction or 1 year from completion of misdemeanor conviction.

Certificates of Good Conduct

• Available for 27 occupational licensed granted through Illinois Dept. of Financial and Professional Regulation.

• No waiting period, can be applied for at time of sentencing or anytime thereafter.

Certificates of Relief

from Disabilities

23

Who Can Apply- Based on the Person

• (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).

Certificates of Good Conduct

A court must make a “specific finding of rehabilitation”

in 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 5/5-5.5-15(b).

Certificates of Relief From Disabilities

A court must find, based on “clear and convincing evidence,” that:

24

Who Can Apply- Based on Record

Available through the court of conviction* for all convictions except:

Class X Felonies

Aggravated DUI or

Aggravated Domestic Battery

Convictions requiring

registration (sex offender,

murder, arson, etc.)

Felony convictions resulting in

“great bodily harm or

permanent disability”

*with narrow exceptions

25

Benefits of Certificates

Provides Incentive• Immunity from

negligent hiring claims is provided to Certificate holders.

Removes Barriers• Certificates can

remove statutory barriers to employment that historically have no waiver process built in the statute.

Differentiates• With the hundreds

of thousands men and women with criminal records, let’s a person be more than a “YES” on the application.

26

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. Task Force on Employment Barriers: http://www.icjia.org/public/pdf/ResearchReports/IERTF%20Final%20Report.pdf

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 CGLA victories include the Chicago Public Schools, CTA, Illinois State Board of Education, and School Bus Driver permits through the Secretary of State.

27

Certificates of Relief From Disability

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, Professional Counselor and Clinical Professional Counselor Licensing Act, Marriage and Family Therapy Licensing

Act, Private Employment Agency 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.

28

Process for Certificates

Judge makes decision based

on rehabilitation and the public

interest

Serve the State’s Attorney

& schedule a court date

File in court of conviction (for

most part) *there is no

filing fee

Prepare a written petition

Court dates can be scheduled any day in Chicago, at least one week from date of filing. Other jurisdictions require them to be on certain court calls, but overall, short turnaround time. (See Supplement 6: Steps in the Certificate Process.)

29

Executive Clemency

30

Petitions for Executive Clemency

• Type-written petition submitted to the Prisoner Review Board (PRB).

Petition Submitted

• Hearings are held four times a year (twice in Chicago and twice in Springfield).

Hearing Held before PRB

• 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).

Governor has Sole Authority to Render Decision

31

State of the Clemency Process

Governor Quinn Blagojevich0

500

1000

1500

2000

2500

3000

1075

120

1848

1231

~2500 ~2500

GrantsDenialsPending

37%

9%

Not a quick solution – takes up to 4 years for a decision currently and life could change come November.

32

Certificates of Eligibility for Sealing

33

Certificates 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.

34

FAQ’s Clients have been pre-screened and invited to today’s event.

Each client has a folder prepared with information about their criminal record, the form of relief they are seeking, and the type of employment they are seeking.

Work as partners to organize.

Supervising Attorneys will be circulating.

Printing and Copying – ask the runners.

Don’t let clients leave without written explanations of what happens next.

35

Courtney Kelledes Staff Attorney

Client & Community Services

• 312 738-2452 x441• courtneykelledes@cgla.net