According to Michael Sneed of the Chicago Sun-Times, former U.S. Attorney General Eric H. Holder Jr. recently sent a letter to Chicago Ald. Anthony Beale (9th) criticizing Beale’s proposed ordinance to add regulation for rideshare companies Uber and Lyft. Beale’s proposed ordinance would, among other things, mandate drivers for Uber and Lyft to submit to fingerprint background checks.
 
Holder posits that the fingerprint-based background check can have a discriminatory impact on communities of color. He notes that the FBI records from which the fingerprint checks are drawn are often incomplete and do not always show the results of the arrest. Because people of color are statistically more likely to pick up an arrest, their communities would be disproportionately impacted, even when (as is often the case) those arrests do not result in a conviction.
 
I support Holder’s criticisms. In my work, people often come to me with their FBI records looking for an expungement or sealing. It is actually relatively rare for the records to comprehensively contain all the information about what happened in a case. They can be a good starting point for me to figure out what is on a person’s record, but they are mostly worthless for determining eligibility to expunge or seal because they so often don’t list the outcomes of the cases.
 
The ironic part of this is that Uber and Lyft already perform background checks on potential drivers. Many clients have come to me needing to expunge or seal their record specifically because they didn’t pass the background check for these companies. The difference though is that those background checks are designed for employment purposes and therefore typically obtain the disposition information.

Tuesday is primary election day in Illinois, and here in Chicago one candidate is dealing with the same struggle many of my clients face—trying to obtain or keep a job despite the stigma of a criminal record. In a hotly contested race for the 5th District Illinois Assembly Seat, voters received campaign mailers featuring an old mugshot photo of incumbent Rep. Ken Dunkin. The date stamp indicates the photo is nearly 20 years old. In addition to the mugshot, the Sun-Times reported that the mailer listed information about the alleged crimes that may be incomplete and inaccurate.

Dunkin’s opponent, Juliana Stratton, insists her campaign had no involvement with sending the mailer. Nonetheless, she has failed to denounce the scare-mongering tactic. She told the Sun-Times that while she’s “an advocate for a second chance” she believes candidates for public office should be held to “a higher standard.”

While there may be some validity to her point, a mailer that paints a candidate in broad strokes as a criminal thug clearly seeks to provoke a knee-jerk disgusted reaction from voters. This type of labelling of individuals as criminals or felons without any explanation or context for their mistakes is what we at the Bryant Chavez Law Office fight against every day. For a politician like Dunkin, it’s one issue among many that citizens will use to decide whether to vote for him. For ordinary people applying for jobs, it often means outright and immediate rejection. Dunkin is lucky he has a public platform for explaining himself. Regular people with criminal records do not, which is why it’s so important that we have opportunities for reformed individuals to expunge or seal their old cases.

One common expungement misconception that I often hear is the notion that, after a certain length of time, the criminal record will automatically expunge.  This is not the case, no matter how old a case may be.  However, that may change for certain juvenile records.  Under a new bill proposed by Rep. Arthur Turner, arrest records of juveniles will automatically expunge when the juvenile reaches 18 years old.  The automatic expungement would only be for juveniles that were arrested and released without being charged in court.

This is a good bill because it protects juveniles that may not be well-informed of the judicial process.  Most juvenile records are eligible for expunging after a certain length of time, depending on the details of the case.  For those juveniles that are arrested and charged in court, they will be informed of their ability to expunge during the adjudication.  Their defense attorneys or the judge will be there to explain when and how the juvenile can expunge the case from her criminal record.  But if a juvenile is arrested and released right away, she may not ever speak with an attorney to learn her eligibility.  She may not even realize that a record of the arrest is made and kept.

According to the Chicago Sun-Times, about 75% of juvenile arrests in Cook County do not result in charges.  These juveniles shouldn’t be punished for their cases not being as severe as those for whom a delinquency petition was filed.  Otherwise they may only learn of their need for an expungement after a job/opportunity was already lost.

In the course of my work as pardon/expungement attorney, I occasionally encounter individuals that argue that my clients should not get to clear their criminal records.  It’s a do-the-crime-do-the-time argument where “the time” extends beyond the formal sentence into any future repercussions of their offense, regardless of proportionality.  Aside from the general vindictiveness of that mentality, this position also does a disservice to society as a whole. 

That is why I enjoyed reading Neil Steinberg’s recent article in the Chicago Sun-Times, which takes up the defense of a University of Illinois instructor who previously served time in federal prison.  The instructor had been part of a group that had committed several felonies, including a bank robbery in which a person was killed.  The article goes on to examine his life after the events of that case, and argues that his rehabilitation should carry more weight than his mistakes.

The lesson here is that even smart, creative people make mistakes.  While it is great that this instructor was still able to succeed, there are many for whom the burden of a criminal record is a life sentence.  Right now, there are young folks with world-class potential to become professors, doctors, scientists, etc. and are picking up criminal records.  Many of them will face so many roadblocks from their conviction that they never realize this potential.  You can extend this reasoning further and find that there are many hard-working, rehabilitated people that are unemployed or underemployed because of background checks finding a mistake they made long ago.  Most might not even realize that they have options to clear their criminal records.  When as a society we allow for great reservoirs of talent to go untapped, we all lose.

The quarterly clemency hearings are currently taking place in downtown Chicago. These hearings are an optional part of a petition for executive clemency/pardon, in which a pardon candidate, his attorney, and possibly also character witnesses, appear before the Illinois Prisoner Review Board and explain the story of the candidate’s case and rehabilitation. The hearings occur four times a year, in January, April, July and October, and the location alternates between Chicago and Springfield.

Most of the petitioners for pardons already served their sentences and have spent years out of prison, contributing to society and getting their lives back on track. These individuals are seeking pardons so that their name will be cleared, and certain opportunities and rights will be restored.

However, some of the petitioners for clemency are still in prison, and are petitioning the governor to commute their sentence to time served. In these cases, the petitioner’s attorney sometimes argues that the sentence his client received was unjust and did not fit the crime. The Tribune yesterday highlighted one such case, of a woman who has served 26 years in state prison for helping to kill her abusive husband in 1986. The woman and her brother were convicted to life in prison for the crime.

In a video posted to the Tribune’s website, the woman’s attorney and sister both provide testimony to the Illinois Prisoner Review Board.  For pardon candidates who will be appearing at a future clemency hearing, this video is a helpful example of what to expect in the testimony portion of the hearing. This video is edited and does not include any objection from the state’s attorney, or questions from the Prisoner Review Board to the petitioner and attorney.

The current clemency hearings wrap up this week in Chicago. The next round of hearings will be at the state capitol in Springfield in January.

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.