Category: Sealing

Wrongly Convicted? Exonerated Does Not Equal Expunged

9/5/2013

By now you’ve probably heard at least one story of someone who was released from prison after serving time – sometimes many years – for a crime they didn’t commit. The exonerations often come through updated DNA tests and the diligent efforts of Innocence Project groups. This work is certainly commendable. Although it must be a huge relief for individuals to have their conviction overturned, many may not realize that their criminal record still remains.

As the New York Times has reported, exonerated individuals often have a hard time assimilating back into society. In particular, it’s difficult to find a job. Unfortunately, many employers discard all applicants who have anything on their criminal record, regardless of the severity of the offense or whether the charges resulted in a conviction. The best way to improve your chances is to request that your state expunge the case from your record.

Some states have difficult requirements for getting a record cleared. In Alaska, for example, you actually have to prove your innocence in order to get a record sealed. This is a bigger hurdle than proving the state did not have sufficient evidence to convict.

Thankfully, in Illinois, it’s a relatively quick and straightforward process to get your record expunged after you’ve been exonerated. If your case occurred in Illinois, contact us at the Bryant Chavez Law Office for a free consultation.

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Sealing Eligibility Expanded to Include More Felony Convictions

8/4/2013

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This weekend, Governor Pat Quinn signed into law bills aimed at helping those with a criminal record to restart their lives. As previously discussed, one of these new laws will increase a tax incentive for employers to hire ex-offenders.

However, the biggest change in the law for record clearing purposes is a further expansion of felony convictions eligible for sealing. Previously, the only felony convictions eligible for sealing were Class 4 level drug possession or prostitution unless special authorization was granted by the Illinois Prisoner Review Board. But under this new law, sealing eligibility will also include Class 3 and Class 4 level theft, retail theft, forgery, possession of burglary tools, and deceptive practices.

When the bill was originally introduced, it also included Class 2 level felony cases burglary, delivery of a controlled substance, and possession of a stolen motor vehicle. But, these offenses were later deleted as the bill was amended. If you were convicted of any of these felonies, your option for clearing it from your criminal record is still executive clemency (Governor’s pardon).

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Proposed Illinois Law Encourages Employers to Hire Ex-Offenders

5/23/2013

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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.

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Iowa Case Highlights How a Criminal Past Can Haunt You

2/18/2013

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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.

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New Illinois Law Expands Sealing Eligibility

1/31/2013

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A new state law that goes into effect this month has expanded the eligibility for sealing criminal records. Under the new legislation, ex-offenders can now petition the Prisoner Review Board for eligibility to seal a Class 3 and 4 felony conviction from their criminal records, so long as the charge was not for violence, sex, or DUI. Previously, the only convictions that were eligible to be sealed were Class 4 drug crimes and prostitution. The change in the law means the potential for many new individuals to have their records sealed from the public, allowing them expanded opportunities to fully integrate back into society.

Bipartisan bills were introduced in the Illinois House and Senate in February of last year. A final bill passed both houses in May, and was signed into law by Governor Quinn in August. Getting such legislation enacted is no easy task. According the Illinois Press Association, similar bills have been proposed in the last five years, but have failed to make it out of committee.

There is a waiting period and other stipulations under the new law, but contact us at the Bryant Chavez Law Office for a free consultation to determine your eligibility.

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ACLU Sues for Expungement in Alaska

9/24/2012

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In a case that will be closely watched by criminal justice advocates, the American Civil Liberties Union recently filed a lawsuit against the state of Alaska. They're suing on behalf of a married couple who would like an arrest expunged from their criminal records. In Illinois, expunging an arrest that did not result in a conviction is a straightforward, relatively quick process. However, each state has its own guidelines for the clearing of criminal records. As the ACLU lawsuit has brought to light, Alaska is one of the very few states that does not allow expungement at all.

That includes unlawful arrests that the court dismisses, which is what happened to the plaintiffs. The couple was arrested for possession of marijuana plants, but a judge later dismissed the case due to police negligence and misconduct. The couple want the arrest expunged from their criminal records. They’re worried the mark will follow them into the future, and could bar them from certain jobs or opportunities. Many people don’t realize that any arrest can show up on a criminal background check, even if there wasn’t a conviction or the charges were dismissed.

When an arrest is expunged, the record is removed from databases and physically destroyed, as if it never happened. This is different from sealing a record, in which the record still exists but is closed off from the public. The statutory guidelines in Alaska don't have a section for expungement. Sealing is allowed, but only if the person can prove that the charges "beyond a reasonable doubt, resulted from mistaken identity or a false accusation." That is to say, if they can prove they're innocent. If a person was guilty of a crime but has since rehabilitated himself, there is no avenue in Alaska for him to clear his name and get a fresh start. That one mistake will follow him forever.

If a judge rules in the ACLU's favor, it would be a big win for the civil rights of Alaskan residents. In the meantime, we're thankful that in Illinois residents do have options for expungement, sealings and requests for executive clemency (pardons). It's easy to take for granted, but it can make a big difference for someone's future success.

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Ironically, Proposed Chicago Ordinance to "Decriminalize" Pot Could Increase Number of Criminal Records

6/16/2012

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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.

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Frequently Inaccurate Background Checks are Detrimental to Job Applicants

5/16/2012

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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.

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Arrests at NATO Summit Protests Likely Clearable

5/14/2012

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With the impending 2012 NATO summit here in Chicago, many are concerned about possible clashes between the Chicago police and NATO protesters. Indeed, the first set of arrests have already occurred a week before the summit. But as this is no longer 1968, I don’t imagine we’ll see the level of violence that occurred in Grant Park. I don’t believe anyone wants to see a repeat of that.

For those protestors that are arrested, most would likely be able to clear their record. Typical arrests for protestors are for misdemeanor level charges like criminal trespass, disorderly conduct, resisting a peace officer, etc. Often times these charges are dropped fairly quickly, as the main purpose of the arrest is usually to establish order in the given situation. If the charges are dropped, then the defendant can expunge the arrest from their record so long as they have no prior convictions. If the defendant receives court supervision, then she will be able to expunge the case as well, but will have to wait a couple years. If the defendant has a prior conviction, or is convicted of this charge, then they will be able to seal the charge rather than expunge.

The concern for an arrested protester is to avoid convictions for violent crimes, such as assault or battery. Convictions for violent crimes are not eligible to expunge or seal. The only way to clear these from your criminal record is through executive clemency (Governor’s pardon).

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Age: It's More Than a Number

2/12/2012

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Three boys from Lincoln Park High School were recently charged with misdemeanor criminal sexual abuse against a female 16-year-old classmate. Two of the boys, aged 19 and 17, are considered adults in Illinois and will face adult charges in court. The third, on the other hand, is a juvenile and will instead be sent to juvenile court. This small difference in age could mean a big difference in how the boys will eventually be able to clear this from their criminal record.

The easiest scenario is the one in which they all share the same outcome; that is, they are all found not guilty or the case is dismissed. If that were to happen, then all three would be able to expunge the charge quickly and easily.

From there, the boys’ paths drastically diverge. The next step up in possible outcomes would be if the judge gave an order of court supervision. Supervision is essentially the court deciding to delay the case before dismissing it. This is usually given to first time offenders in misdemeanor cases. What would happen is the judge would tell the defendants that if they perform certain requirements (often community service, anger management, etc.) then after a prescribed time period (6 months, 1 year, etc.), the judge would discharge the case. So long as the supervision terminates satisfactorily, this sentence is not technically a conviction.

If we assume for now that all three receive supervision, then the juvenile will be able to expunge his record as soon as he turns 17 or when the supervision terminates, whichever occurs later. For the two adults, it’s not so easy. Typically, when an adult receives supervision for an offense, they will be eligible to expunge the case after a prescribed waiting period (usually two years). However, there are a few notable exceptions to this standard. One of which is that the court may not order an expungement (or sealing) for any conviction or supervision that resulted from a sexual offense committed against a minor. Because the alleged victim is 16-years-old, this exception would apply. So even though the 17 and 19-year-olds would not be convicted in this scenario, they would not be eligible to expunge or seal under Illinois law. Obviously, the same will still hold true for these two if they are convicted of the charge as well.

Once again though, the juvenile would still be able to clear his record easily. In juvenile court, the defendant isn’t found guilty or not guilty, but rather the court will determine if he is “delinquent” of the offense. If the juvenile charged in this case is found delinquent, then he would still be eligible to expunge his record after he turns 21 or five years after the sentence terminates, whichever occurs later.

That’s not to say that the 17 and 19-year-old would be without options. There is always the possibility of executive clemency (Governor’s pardon). But that process is considerably longer and more complicated, and it would likely be many years before they are really good candidates for clemency.

All in all, this case serves as another reminder that relatively arbitrary decision of when a person becomes a legal adult can have large scale consequences.

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Forward>>

Wrongly Convicted? Exonerated Does Not Equal Expunged

Sealing Eligibility Expanded to Include More Felony Convictions

Proposed Illinois Law Encourages Employers to Hire Ex-Offenders

Iowa Case Highlights How a Criminal Past Can Haunt You

New Illinois Law Expands Sealing Eligibility

ACLU Sues for Expungement in Alaska

Ironically, Proposed Chicago Ordinance to "Decriminalize" Pot Could Increase Number of Criminal Records

Frequently Inaccurate Background Checks are Detrimental to Job Applicants

Arrests at NATO Summit Protests Likely Clearable

Age: It's More Than a Number

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