In the course of my work helping individuals to have their criminal records cleared, I’ve become very familiar with the reasons people seek expungement or sealing. Some simply seek the satisfaction of clearing their name, for their own peace of mind. Some are ashamed of labels like “ex-felon” or “criminal” and would like to serve as a better model for their family. However, the vast majority of people I speak with are seeking a clean record for one primary reason: better job opportunities. Employment is the biggest hurdle people face when they have a black mark from their past holding them back.

Criminal background checks are now used more than ever. This is partly because of the proliferation of computerized recordkeeping (making the checks easier to conduct), but they’ve also been used to a greater extent since 9/11 due to increased security concerns. Add to the mix the recession of the past few years, and employers are quick to use criminal records as an easy first filter on a pool of applicants. When they see that someone has checked “the box” that indicates a criminal past, that person is discarded. A criminal record destroys the candidate’s chances.

Thankfully, lawmakers in Springfield have been showing they are aware of these challenges, and are crafting legislation aimed to help. The recent Illinois law that expands eligibility for sealing means a faster process for some who were previously only eligible to request a Governor’s pardon. Expunging or sealing a criminal record greatly helps ex-offenders to find employment and get their lives on track.

But in order to prove rehabilitation to the State, there is a mandatory waiting period for an expungement or sealing. This means someone has to wait several years after the completion of their case before clearing their record. In the time immediately following their release, ex-offenders often have a very difficult time finding a job. A new Illinois bill addresses this challenge. The proposed law would award a tax credit to employers who hire an ex-offender within three years of his release from an Illinois correctional center. The bill passed the State Senate in March, and is currently making its way through the House.

Our state representatives apparently recognize that when recent offenders struggle, they’re not contributing to their communities and the likelihood of recidivism is much higher. If enacted, this new law would benefit us all. Together with the expanded sealing law, these recent pieces of legislation show that the State is aware that a lot of talent is being wasted because of a mistake in people’s pasts. It is commendable that our lawmakers are creating ways for ex-offenders to re-enter society and lead productive lives.

The White House announced Friday that President Obama has granted pardons to 17 individuals convicted of non-violent federal crimes.  As the Washington Post reports, the successful petitioners “were sentenced years if not decades ago for such minor federal offenses as falsely altering a U.S. money order, possessing an unregistered firearm, embezzling bank funds and acquiring food stamps without authorization.”

Pardons on a federal level do not expunge a crime; the crime remains on the individual’s record. However, the pardon is an act of forgiveness from the President. Receiving a presidential pardon can remove barriers to certain career, financial, and other opportunities. Presidents can issue pardons for incarcerated individuals that include a commutation of sentence, but historically the vast majority of pardons issued have been for individuals who have already served their sentences.

Much like how Governor Quinn receives recommendations from the Illinois Prisoner Review Board that aid in making his state-level pardon decisions, President Obama has the federal Office of the Pardon Attorney that reviews applications. However, in the end it is entirely up to the chief executive whether to approve or deny any given petition. The “Power to Grant Reprieves and Pardons for Offenses” is an authority of the President specifically stated in Article 2, Section 2 of the U.S. Constitution.

These are the first pardon decisions Obama has issued in his second term as President. Previously, he granted nine in December 2010, eight in May 2011 and five in November 2011. Although this total of 39 is much lower than his predecessors—George W. Bush granted 189 pardons in his presidency, while Bill Clinton granted 396—it doesn’t necessarily indicate that acts of clemency will remain rare in his second term. It’s true that presidential pardons can be tricky political territory. Ford’s notorious pardon of Nixon was a public-relations disaster from which he never recovered, and Clinton’s pardon of financier/fugitive/Clinton-campaign-donor Marc Rich was heavily criticized. But so far all of Obama’s decisions have been non-controversial and have received very little media attention. Without a looming re-election battle, perhaps Obama will work his way through more pardon applications in the next few years. It’s a good sign that this first batch comes less than two months into his second term.

In 1963, 18-year-old Richard Eggers and a friend visited a laundromat in Carlisle, Iowa. Bored and curious, Eggers decided to cut a dime-sized piece of cardboard out of his detergent box and see if it would work in the washing machine’s coin slot. Consequently, he was arrested and convicted of falsifying currency. He spent two days in jail.

Fast forward nearly 50 years. Eggers, a Vietnam Vet, has been working for the past seven years in a $29,795/year customer service job for Wells Fargo in Des Moines, Iowa. Out of the blue, his bosses at Wells Fargo inform him that he’s been fired because of the fake-dime conviction on his record.

Eggers’ employment was terminated as a result of new FDIC regulations which forbid banking institutions to employ anyone convicted of a crime involving dishonesty, breach of trust or money laundering. The laws were created as an attempt to combat mid-level and executive fraud in the wake of the devastating 2008 financial crisis. Members of the media and public have expressed outrage that thousands of low-level bank workers with minor arrests have been fired since the regulations were enacted. As a result of Eggers’ public campaign, he received a fast-tracked waiver from the FDIC to return to work at Wells Fargo. He refused to return, however, until Wells Fargo agrees to make changes to its background check process.

Although Eggers’ case has been highly publicized, there are countless other individuals across the country who are being denied employment due to increasingly used and increasingly stringent background checks. In addition to the banking industry, employers in many other fields (such as public schools and hospitals) are bound by law to conduct background checks. Many other private-sector companies choose to screen applicants with criminal records as a simple filter in a competitive job market. For ex-offenders who now live crime-free, productive lives, the imposing presence of background checks can seem like a permanent roadblock between them and their future success. However, that roadblock can be removed if a person is eligible under guidelines in his state to clear his record through an expungement, sealing or a Govenor’s pardon.

In Iowa, where Eggers lives, most adult criminal convictions are not eligible to be expunged from a person’s record. The only exceptions are for certain alcohol-related offenses, such as public intoxication, or for deferred judgments. The only option for all other offenses is to request a Governor’s pardon. However, in Iowa a pardon is only a state-sanctioned forgiveness for a crime; it does not carry with it a right to expunge the case from the petitioner’s criminal record. The mark remains on the ex-offender’s record forever.

Alternatively, if Eggers’s crime had occurred in Illinois, he would have the option to petition the Governor for executive clemency (pardon) which, if granted, would carry with it a right to expunge. Eggers would be a very good candidate for a pardon: this is the only case on his record and he has spent the following 50 years as a law-abiding, responsible citizen. The pardon petitioners I represent often have similar backgrounds. They made a mistake in their youth, but have since had many years without any incidents. These individuals have worked hard to rehabilitate themselves and contribute to society, yet their criminal past is keeping them from certain jobs, loans, housing, and other opportunities.

It’s also possible that if Eggers’s crime had occurred in Illinois and it was a misdeameanor, he would be eligible to seal the crime from his record (depending on the specific facts of his case, which I have not reviewed). When a record is sealed, it is closed off from the public, but is not physically destroyed as when it is expunged. Nonetheless, it is a simpler and faster process than requesting a Governor’s pardon. It’s possible that a sealing would be sufficient for Eggers’s situation.

City Hall is apparently doing its research.  When word initially got out about the impending proposal to issue tickets for small cannabis possession in Chicago, no distinction was drawn between juveniles and adults.  As I outlined at the time, juveniles would be harmed by the change because convictions for ordinance violations would not be expungeable, while criminal charges are expungeable.  Juveniles in counties that passed similar measures have been victimized by this oversight.

The Mayor’s office will not make the same mistake.  When Mayor Rahm Emanuel’s official plan was released, it included the addition that juveniles must still be arrested and processed as they were under the old plan.  This is certainly preferable because then the City and police can still send the message they want to send, without leaving the youths with a permanent black mark on their record.

The so-called “decriminalization” of cannabis will still likely lead to an increase in the number of convictions and criminal backgrounds for adults, as I have explained previously.  However, at least the plan won’t strip juveniles of the opportunities that Illinois expungement law is designed to protect.

There are many pragmatic reasons why Mayor Rahm Emanuel and Cook County Board President Toni Preckwinkle support the proposed Chicago ordinance which will allow police officers to issue tickets for possession of small amounts of marijuana.  The ordinance would likely increase revenue for the city, while at the same time it would allow police the freedom to focus on more important matters.  However, one reason thrown out in support of “decriminalization” is that it will prevent people from needlessly carrying criminal records.  Sadly, this proposed ordinance would likely increase this result.

Many background check companies look for and report ordinance violations, so it is not as if these tickets will be invisible.  On top of that, the influx of ordinance violations will make clearing criminal records more difficult.  Currently, most people arrested for possession of small amounts of cannabis are able to avoid major penalty.  According to the Chicago Sun-Times, 90% of the misdemeanor cannabis cases in Cook County from 2006-2010 were dropped.  For the few first-offenders whose cases aren’t dropped, they usually receive court supervision.  Under each of these scenarios, the charge can be expunged as if it never happened.

But under Illinois expungement law, convictions for ordinance violations can prevent a person from expunging an otherwise expungeable criminal record.  In some cases, they can even prevent expungeable offenses from even getting sealed.  I fear that many will simply pay the small fine, accept a conviction, and not realize the implications of what they are agreeing to.

The people most hurt by this procedural change would actually be juveniles.  Unlike with criminal charges, juveniles can be convicted of ordinance violations.  To make matters worse, those ordinance violations are not automatically sealed.  The laws in Illinois are designed to prevent mistakes made by kids from following them for the rest of their lives, but this ordinance would subvert those intentions.

This is precisely what happened to a former client of mine.  In a county that had already adopted this “decriminalization” procedure, he was convicted of the ordinance violation for marijuana at age 15.  Years later, he wanted to become a cop, but was denied due to having a drug conviction, an automatic bar for that agency.  He could have had the ordinance violation sealed, but police are one of the few agencies capable of seeing sealed records.  That meant his only option to become a police officer was to seek a Governor’s pardon, which can be a costly process that often takes years.  If instead he had been charged as a juvenile for the criminal offense of possession of cannabis, he could have quickly and easily expunged it.

So, while the proposed Chicago ordinance to lower the severity of small marijuana possession certainly has it merits, the change in procedure would not be without its warts as well.

Earlier this week, the Chicago Sun-Times ran an editorial that is close to my heart.  They were calling for stringent accuracy standards on companies that perform background checks.  As they point out, thousands of job seekers have been denied employment because of mistakes by these background check companies, according to the National Consumer Law Center.

This information comes as no surprise to me.  Often, clients will come to me to find out if they are eligible to expunge or seal and they’ll have with them background checks performed by these private companies.  I always tell them that we can’t know for certain unless we actually pull the case information from the court records because private background check companies are notoriously inaccurate.

While the Sun-Times editorial focused on errors that reported crimes never performed by the applicant, this is only part of the problem.  People can also be harmed by what the background checks don’t show.  Many people will have a background check performed on themselves in order to find out if some old case can still come back to bite them.  They don’t realize that every background check company will have their own processes for research and reporting.  Some will look at a person’s entire criminal history, but for only the last 7 or 10 years.  Others will look into a person’s entire life, but only report convictions.  Others still, just felony charges.  When there is no standardization, there is no telling what criminal offenses the background check companies will find.  Throw in the high rate of errors and these background checks become highly unreliable.

The unreported “missing” cases can hurt people in a couple ways:  (1) Any arrest can affect a person’s eligibility for an expungement or sealing, so it is important to know every single charge a person has ever received.  (2) They can also lull people into a false sense of security that a case is no longer visible so there’s no need to clear it from their record.  Just because it hasn’t appeared on one background check, doesn’t mean that it isn’t coming up on others.

While there are some measures in place to try to prevent employment discrimination against those with criminal records, the Sun-Times properly points out that “…in the real world, job applicants may never know why they weren’t called in for an interview.  The Society for Human Resource Management says 93 percent of employers ran background checks on some applicants in 2010 and 73 percent checked all of them.”  So I applaud the Chicago Sun-Times for bringing to light the injustice that this carelessness can bring.