Record sealing has helped many to permanently secure or delete personal criminal records of felonies, misdemeanors, or even arrests when ultimately found not guilty. Generally speaking, when an arrest or a conviction occurs, it’s available to society via public records that anyone can access. This means that a record has the potential to follow a person everywhere, possibly undermining his or her ability to secure housing, employment, and career advancement. Having records sealed makes it so that a criminal record isn’t as accessible. It’s worth noting that there is a distinct difference between record sealing and expungement. In the case of an expungement, it is like the event never occurred, with a record even being destroyed. When a record is sealed, however, it is still kept on file by the government; the ordinary citizen cannot gain access to it.
HB 2373 And What It Means
With the passage of HB 2373, many people in Illinois have the potential to have their records sealed, with the bill potentially affecting millions of residents. Signed into law in August 2017 by Governor Bruce Rauner – which was largely backed by bipartisan support – all felony convictions regardless of its class, now can qualify for sealing of records. Before the passing of this policy, only about nine felonies had the ability to be eligible for sealing.
House Bill 2373 amends the Criminal Identification Act to aid ex-felons, with the House bill representing one of the most significant expansions in that state – or in any state for that matter. Before the amendment, Illinois’ Criminal Identification Act had a set of stringent criteria that needed to be met if a person were to qualify for record sealing. These factors include whether the person has been convicted of another crime, what type of offense the conviction is based on, and how much time has passed since the conviction. With this new house bill, all felonies are eligible for sealing unless it is listed as a current exception. These exceptions include a DUI stemming from reckless driving, animal crimes, sex crimes independent of misdemeanor, public indecency or prostitution, and lawsuits of domestic battery and violations of orders of protection.
HB 2373 matters because it is reported that about 90 percent of employers in the United States carry criminal background checks for applicants and potential employees. Roughly 70 percent of employers will conduct a criminal investigation for almost all job applicants. Even though these background checks have its merits to ensure that incredulous characters aren’t compromising a business or organization, ex-offenders are shortchanged, and are excluded, even if they are qualified and are a good fit for the job. If an ex-offender is not able to find viable employment, they do not have the means to meet their basic needs. This contributes to recidivism, a cycle that is difficult to break regardless of public initiatives.
HB 2373 Will Affect Attorneys and Lawyers
Illinois law that governs the sealing of records has expanded since its first reiteration. For example, if a person had a conviction for an offense, and a non-conviction for a different non-related offense, then the latter offense will not qualify for expungement, but has the potential to be eligible for sealing. In early 2017, however, that was changed to allow non-conviction arrests to qualify for expungement, even if there was a conviction in the past. In this sort of scenario, this person has a new lease on life.
HB 2373 expands to more than 1.14 million people in Illinois, who will have the eligibility to have their records removed. For attorneys and lawyers, it means that dual petitions need to be filed for a person in this situation. This remains the process until the Supreme Court enables simultaneous filing. Under this new bill, felony convictions now mirror misdemeanors, when it comes to which offenses the law allows to be eligible for sealing.
There Is Still Just One Chance to Seal Felony Convictions
There is still the long-standing rule that allows only one opportunity to seal a conviction. Once sealed, the law bars anyone to file for another sealing if they get subsequent convictions. Also, it’s important to note that it’s allowed for the court system to unseal prior felony records. It is the attorney’s job to qualify petitioners to ensure that the application survives objection, based on any technicalities. Communicate that if the seal is granted, there will be no other chance of doing this in the future should there be any subsequent convictions. This is an important footnote that is crucial to the ramifications of HB 2373.
The new house bill has several implications for practitioners and attorneys who now have clients that may qualify for sealing. First, for current clients who are presently in the process of filing for sealing, or are considering to do so, they may now apply for sealing for those convictions. When it comes to clients who have already registered for a certificate of good conduct, or relief processing, the attorney must consider whether to change the trajectory and switch for sealing. There is also the option of continuing the process, absent of the sealing initiatives introduced by HB 2373. The benefits and risks need to be explained, in detail, with the now qualifying client.
For lawyers who will now have new incoming cases, the new house bill represents a post-conviction relief. Take note that before taking the route of sealing, consider the chance of success at the hearing, should the state object due to public policy grounds. At this hearing, the attorney can persuade the court that the petitioner is worthy of having the petition granted. For example, if there have been several years since the end of a class one sentence, the attorney would have to give a reality check to the client who may think that this new legislation will accommodate them – when it may not. Illinois has – and will – argue that given the nature of the offense, the record should be open to public scrutiny. It’s important to know that HB 2373 is not an end all, be all solution, and there is a due process that the client needs to acknowledge. The court can agree with the state, and want more time for the petitioner to prove that they are in good standing before they adopt policies from HB 2373.
With that being said, the opposite is also true. If a person convicted of a class one felony had completed their sentence decades ago, and had no additional unlawful action since then, then the petitioner is positioned for success, as long as the individual has demonstrated means to generate income. It’s important that legal counsel can communicate the merits of this new bill without inflating chances – this will only lead to disappointment for all parties involved. In layman’s terms, HB 2373 does not guarantee record sealing.
What about Waiting Periods for This New Bill?
One of the more complicated aspects of this new bill is the associated waiting periods for Illinois residents. There are four time periods that attorneys and clients need to be aware of when petitioning for record sealing.
- Applying immediately after dismissal or acquittal. A client can apply for the sealing of records immediately after dismissal, or if their conviction has been reversed. With this type of scenario, there are no waiting periods and application for sealing, since it is a lot more streamlined than other situations.
- Certificate of clemency and HB 2373. If a client has gained a pardon or a certificate of eligibility as an honorably discharged veteran, then there is also no waiting.
- What about people who are SOL’d? For those who are “stricken off with a leave to reinstate,” then there is a filing period of 160 days.
- Supervision. In this type of scenario, some cases that involve several wait periods can be extended to two years after successfully finishing supervisions. However, it’s important to note that if these supervisions are coming from sexual abuse, or driving with a suspended license, then the Illinois resident may have to wait up to five years.
Here are the curious cases of waiting periods and reckless driving. If a person is under 25 years of age when getting supervision, due to reckless driving, then after 25 they may apply for expungement. They must not have any additional supervisions by age 25.
Those who may be interested in sealing their records must wait a minimum of three years after the last sentence before filing a petition. For example, if a client wants to seal information from a conviction that is several years old, and completed a subsequent conviction for a different offense in 2016, then the past sentence cannot be sealed until 2019. Prior convictions, starting with the most recent incident when it comes to determining eligibility for sealing of any convictions. This can be bypassed via educational advancement. For example, if your petitioning client has received a high school diploma or an advanced degree, then they can skip the wait, and file for sealing of records upon the successful termination of their most recent sentence.
What Will Happen to the Filing Fee Waiver Pilot Program?
This program was created to eliminate the $120 filing fee for petitions, when it comes to seeking expungement stemming from a release without charge or a dismissal. The charge was designed to make it easier for petitioners to restore their character, and move forward with their lives. However, it has largely been stifled by ineffectiveness. The program only applies to individual counties with more than 3 million residents. Also, the provision does not include non-convictions resulting from supervision. On a practical level, when the filer needs to file for supervision or probation to be expunged, while also having an arrest where the charges were dropped, the representing lawyer will need to prepare dual petitions involving the fee and a secondary one excluding it.
Just The Beginning
Record sealing has its limitations. To have the most meaningful impact, lawmakers should also consider eliminating the waiting period associated with sealing records. If a person is rehabilitated, then there is no reason to make them wait an arbitrary amount of time before petitioning for a better opportunity at securing their vocation. Making these people wait only increases the chance that they will not earn enough money to sustain themselves and may return to a life of crime. It’s crucial to reinvigorate people who are once again living in public life, and give them the tools to succeed and not succumb to unlawful actions. House Bill 2373 represents hope for more comprehensive reform, so that ex-offenders can enter a virtuous cycle of good and productivity, instead of being cycled through the prison industrial complex.