depaul nlap help desk volunteers criminal records corps recruits criminal records training

DePaul NLAPHelp Desk Volunteers

Criminal Records Corps Recruits

Criminal Records TrainingCabrini Green Legal Aid

Cynthia Cornelius, Equal Justice Works FellowSponsored by the Albert and Anne Mansfield Family

FoundationBeth Johnson, Program Manager

740 North Milwaukee Avenue Chicago, IL [email protected] [email protected]

p 312.738.2452 f 312.850.4783

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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.

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Introducing CGLA

We integrate legal and social services through strategic partnerships and in-house support staff to create long-term impact on those we serve.

Part I Agenda

Criminal Records Corps Training

•Expungement and Sealing •The Law and Legal Procedures

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Expungement and Sealing

Criminal Records Corps Training 4

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.



• 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.pdf2http://www.pewstates.org/uploadedFiles/PCS_Assets/2010/Collateral_Costs(1).pdf3http://www.nytimes.com/2012/01/10/opinion/paying-a-price-long-after-the-crime.html?_r=0


• 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).




• 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 full-time.



• 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.

The Lawand

Legal Procedures


Criminal Records Basics

ArrestCriminal Complaint

•Dismissals/Acquittals•Supervision

•710-1410 Probation•Vacated TASC Probation

Convictions

Expungement

Sealing

All or Nothing Case by Case

Waiting Period

Waiting Period

Ineligible Misdemeanor and Felony

Offenses

Supervisions for:DUI

Reckless Driving

Sex w/ Minors

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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 fingerprint-based 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.


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!


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.


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.


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)


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.



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”



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”



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.


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.


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).


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).


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.


Sealing Eligibility- Misdemeanors

• Misdemeanors that are non-violent, or non-sexual in nature can be sealed under the law. These include the following:

– Theft - Resisting arrest – Trespass - Retail theft– Damage to Property - Possession of a

Weapon– Disorderly Conduct - Mob action– Possession of Cannabis - Gambling– Prostitution - Deceptive practices– Endangering Health of Child - others…


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 DrivingCriminal Records Corps Training 32

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.


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.


Criminal Records Basics

ArrestCriminal Complaint

•Dismissals/Acquittals•Supervision

•710-1410 Probation•Vacated TASC Probation

Convictions

Expungement

Sealing

All or Nothing Case by Case

Waiting Period

Waiting Period

Ineligible Misdemeanor and Felony

Offenses

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Supervisions for:DUI

Reckless Driving

Sex w/ Minors

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!

Determining Eligibility


Criminal Records Research


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).


• Prepare petitions upon receipt of RAP sheet


When a Record is Eligible

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: Chicago– District 2: Skokie– District 3: Rolling Meadows– District 4: Maywood– District 5: Bridgeview– District 6: Markham

• District is determined by the third number in the case number (98512345601 – year, district, random #s)


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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