Presentation Transcript

1. Alternative Forms of Relief From Criminal Records IMPACT Second Chances DLA Piper August 8, 2013
2. 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.
3. The Legal Process
4. Forms of Relief
5. Expungement & Sealing: Basic Eligibility
6. After Expunging or Sealing…
7. Ineligible Misdemeanor Convictions/Supervisions
8. Felony Convictions
9. Alternative Forms of Relief
10. Similarities Between the Forms of Relief: What is required in each.
11. 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: Drug Use Theft or Property Crimes Crimes of Violence Gang Membership Drug Dealing
12. 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
13. 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. 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 and takes approximately 3 days to come in. Other criminal cases must be obtained from appropriate Clerk’s Office in district/county case was heard.
14. Executive Clemency
15. Petitions for Executive Clemency
16. Writing the Petition for ClemencySee Pro Se Packet and www.state.il.us/prb
17. Writing the Petition for ClemencySee Pro Se Packet and www.state.il.us/prb
18. 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
19. Health Care Waivers
20. Health Care Waivers http://www.idph.state.il.us/nar/
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
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
25. Certificates of Relief from DisabilitiesCertificates of Good Conduct
26. Timeline of Certificates 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. See following pages. 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.
27. 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.
28. 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. How Does One Apply? See: Sample Petition for Certificate. 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. 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. Certificates of Eligibility for Sealing
38. 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 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
40. Contact Information Paul Haidle, Supervising Attorney, Criminal Records Program. 312 738-2452 x423. paulhaidle@cgla.net Beth Johnson, Director of Legal Programs. 312 738-2452 x419. bethjohnson@cgla.net