Presentation on theme: "Alternative Forms of Relief From Criminal Records IMPACT Second Chances DLA Piper August 8, 2013."— Presentation transcript:
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. 2
The Legal Process Understanding which offenses under what conditions are eligible for relief Filling out and filing an accurate petition and understanding the process that follows. Knowing what to do when a record cannot be cleared and a person’s legal rights. Reading a rap sheet & court records 3
Forms of Relief Expungement & Sealing Expungement is only for those who have never been convicted of a criminal offense. Sealing is only for those with minor, non- violent, non-sexual misdemeanor convictions and only three felonies. Process through the court system to remove records from public view. Clemency Petitions 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. Waivers & Certificates 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. 4
Expungement & Sealing: Basic Eligibility 5 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.
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 6
Ineligible Misdemeanor Convictions/Supervisions Battery, 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. 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 7
Felony Convictions 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)* Eligible Regardless of Class Regardless of Age ALL Other Felonies are Ineligible to be Sealed 8
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! 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. 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 9
Similarities Between the Forms of Relief: What is required in each. Explanation of the conviction Proof of rehabilitation, specific to the offense Context of criminal history in life story Educational and employment history Reasons for the specific relief being sought 10
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 Drug Use o Theft or Property Crimes o Crimes of Violence o Gang Membership o Drug Dealing 11
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 12
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 26 th & California, 5 th Floor Clerk’s Office. All files must be ordered by calling 773-869- 1762 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. 13
Petitions for Executive Clemency Type-written petition submitted to the Prisoner Review Board (PRB). Petition Submitted Hearings are held four times a year (April & October in Chicago, January & July 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 15
Writing the Petition for Clemency See Pro Se Packet and www.state.il.us/prb Required Information Section 1 Self-explanatory. State Prisoner Number only applies if a person was sentenced to prison and Aliases only apply if used. Conviction(s) for Which Pardon is Sought Section 2 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. Complete Criminal History Section 3 Short description of the remainder of cases in the clients criminal history, including convictions, supervisions, and all arrests – even if sealed! 16
Writing the Petition for Clemency See Pro Se Packet and www.state.il.us/prb Personal Life History Section 4 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. Reasons for Seeking Clemency Section 5 Includes opportunities that have been denied (jobs, housing, education). Should be as specific as possible. One way to identify other forms of relief available. Type of Clemency Desired Section 6 Check Pardon and Expungement. 17
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 18
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. 20 http://www.idph.state.il.us/nar/
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:*First: Middle: 21
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. 22
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. 23
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. 24
Process for Healthcare Waivers Completing application and compiling supporting documentation. Mailing 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 25
Certificates of Relief from Disabilities Certificates of Good Conduct 26
Timeline of Certificates 2003 200420062009 2010- 2012 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 -Kimberly Lightford (D- Westchester) 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 - 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 094- 1067 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 – 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. 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. 29
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.” 30
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 5/5-5.5- 15(b). 31
When Can a Person Apply? 32 Good Conduct 2 years from the completion of the felony offense 1 year from completion of a misdemeanor sentence Relief from Disability At the time of sentencing or anytime thereafter 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. 33 Order Entered Hearing before Chief Judge Petition filed with Court See: Sample Petition for Certificate.
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. 34
What Licenses can CRDs by Issued for? 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. 35
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). 36
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. 37
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 39
Supplemental Materials 40 -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
Contact Information Paul Haidle, Supervising Attorney, Criminal Records Program. 312 738- 2452 x423. firstname.lastname@example.org@cgla.net Beth Johnson, Director of Legal Programs. 312 738-2452 x419. email@example.com firstname.lastname@example.org 41