SB0049 95TH GENERAL ASSEMBLY

LRB095 04113 RLC 24151 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
SB0049

Introduced 1/31/2007, by Sen. John J. Cullerton

SYNOPSIS AS INTRODUCED:

New Act

Creates the Second Chance Act. Creates a Second Chance Commission in each of the 5 judicial districts of the State appointed by the presiding appellate judge of the district. Provides that a Commission shall deliberate petitions for relief filed by defendants after the final disposition of their criminal cases. Provides that a Commission may grant: expungement of criminal records; sealing of criminal records; a waiver of disabilities barring employment, licensing, benefits, or another right or privilege; or certificates of good conduct. Establishes criteria to be used in determining whether or not to grant relief. Establishes procedures by which the State's Attorney, the arresting agency, the Department of State Police, or the chief legal officer of the unit of local government effecting the defendant's arrest may file an objection to the petition. Creates a private right of action against a person for maintaining, revealing, or otherwise using a record in violation of an order granting expungement, sealing of criminal records, or a waiver of disabilities, and sets forth relief that may be awarded in such an action.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal records.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Second Chance Act.

Section 5. Principle, purpose, and goals. The General Assembly hereby codifies the promise that Illinois, like the nation at large, is the land of the second chance and the principle that every person has the potential to turn his or her life around after having run afoul of the law and to become a law abiding member of the community with the full array of rights and responsibilities of citizenship.

The chief goal of this Act is to reduce crime and recidivism and thereby promote the safety of Illinois communities. To accomplish this goal, people with criminal records need to become fully engaged in assuming the responsibilities of family, community, and citizenship, and to be able to work. Employment is the first and most critical step in assuming personal responsibility for one's self and one's family and for becoming a tax payor contributing to society at large. Because criminal records impose barriers to assuming and exercising these responsibilities, rights, and privileges, this Act aims to provide relief from those criminal records. It also aims to give those with criminal records an incentive to stay on the straight and narrow because this Act will provide them with a second chance a chance to be released from the stigma of a criminal record if they can demonstrate they have turned from crime to responsibility. This Act is intended to provide those who have paid their debt to society the opportunity to return to their communities as productive, competent, and healthy citizens with all the responsibilities, rights, and privileges that such citizenship conveys.

Section 10. Second Chance Commissions.

(a) Creation. Five Second Chance Commissions, one for each of the 5 Illinois judicial districts, shall be created to review applications for relief under this Act and to determine what, if any, relief is to be granted the petitioner.

(b) Composition. Each Commission's members shall be appointed by the presiding appellate judge of the judicial district and include the following from within that judicial district: the presiding appellate judge, or his or her designee; a State's Attorney, or his or her designee; a chief of police or sheriff, or his or her designee; a public defender, which may include the State Appellate Defender, or his or her designee; and an individual working with a faith based or community based organization that helps former prisoners make the transition back into the community. The presiding appellate judge shall also appoint no less than 5 alternate Commissioners representing the 5 institutions described in this subsection (b) to deliberate in instances where Commissioners are absent or have a conflict of interest. In judicial districts with a population of more than 2,800,000, the presiding appellate judge may appoint as many additional permanent commissioners as the workload warrants, so long as each commission that deliberates a petition is composed of 5 individuals representing the 5 institutions described in this subsection (b).

(c) Recusal and removal. A Commissioner shall recuse himself or herself from deliberating on any petition if he or she has a personal or financial or any other interest in the matter. The presiding appellate judge shall have the power to recuse any Commissioner from deliberations on a petition in which the judge ascertains the individual has an interest. The presiding appellate judge has the authority to remove Commissioners for cause, including misconduct or repeated absences.

(d) Duties. Each Commission shall deliberate petitions for relief as set forth in this Act and decide such petitions by a majority vote of the 5 Commissioners or their alternates.

Section 15. Forms of relief. Notwithstanding any other provision of law to the contrary and cumulative with any rights to pardon, expungement, sealing of criminal records, and obtaining other forms of relief from disabilities, forfeitures, and bars imposed by law consequent to criminal convictions, any person who has no charges pending against him or her and who has a criminal record, whether the person was convicted or the matter or matters were otherwise disposed of, may petition for, and may be granted by the Commission, such relief from the consequences that criminal records impose as follows:

(1) Expungement of records. The expungement of a record is its complete destruction by government and private agencies and the erasure of all indicia, including court indexes, that it ever existed. The entirety of an individual's criminal record may be expunged or only such parts as the Commission may determine are consistent with the principle, purpose, and goals of this Act.

(A) Legal effect of expungement. When a criminal record is expunged, the legal effect is (i) the complete and permanent extinguishment of all disabilities, forfeitures, and bars imposed by law or practice that would otherwise be consequent to the record, and (ii) that the record does not exist and the acts giving rise to the conviction did not occur. When a person has his or her record expunged, he or she may deny or answer no, even under penalty of perjury, to any question concerning that existence of the expunged record and the acts giving rise to it.

(B) Penalties. Maintaining, revealing, or otherwise using in any manner, regardless of intent, an expunged record for any purpose gives an aggrieved party, including but not limited to the party named in the expunged records, a private right of action under this Act, and the court, in its discretion, may impose, in addition to injunctive relief and actual damages, statutory damages of no more than $10,000, and award attorney's fees to the plaintiff.

(2) Sealing of records. The sealing of a record is the full or partial, temporary or permanent, removal of the record, including index references to it, from such public or private views and uses as the Commission determines are consistent with the principle, purpose, and goals of this Act. The Commission may seal some or all parts of a record; it may seal the record on a temporary basis until such conditions imposed on the applicant are fulfilled; it may seal the record permanently, but subject it to reopening upon either subsequent arrest or conviction; it may seal it and bar its view and use by all parties, or only by named entities, including but not limited to law enforcement and entities required to conduct background checks.

(A) Legal effect. If a record is fully sealed as to all parties and uses, the legal effect is the same as an expungement except that the record may be reopened and used in such a manner as the Commission shall direct in its final order on the petition. If a record is partially sealed and closed to all parties and uses, the legal effect of such offenses as are sealed is the same as an expungement of those offenses, subject to any conditions imposed by the Commission. If a record is fully or partially, but temporarily, sealed subject to conditions imposed by the Commission being fulfilled by the petitioner, during the period of the sealing the legal effect is the same as an expungement. If the conditions are not fulfilled, the record is reopened. If a record is sealed only as to certain parties or certain purposes, the legal effect as to those parties and purposes is the same as an expungement.

(B) Penalties. Maintaining, revealing, or otherwise using in any manner, regardless of intent, a sealed record by any person or entity not authorized by the terms of the order to view, maintain, or use the record and for any purpose beyond the scope of the order gives an aggrieved party, including but not limited to the party named in the expunged records, a private right of action under this Act, and the court, in its discretion, may impose, in addition to injunctive relief and actual damages, statutory damages of no more than $10,000, and award attorney's fees to the plaintiff.

(3) Waiver. A waiver is a determination by the Commission that allows a person, otherwise barred by law from employment, a license, benefit, or any other right or privilege, to establish that lifting that bar is consistent with the principle, purpose, and goals of this Act. Notwithstanding any law to the contrary, the Commission may waive any disabilities imposed by law and provide such relief to fulfill the purposes of this Act. A waiver may cover as many disabilities as the Commission may determine are consistent with this Act.

(A) Legal effect of waiver. The waiver has the effect of lifting the disabilities consequent to the individual's criminal record otherwise imposed by law that are identified in the Commission's order.

(B) Penalties. If a person or entity does an act or refuses to do an act on the basis of a criminal record when the disability has been waived, the person with the waiver has a private right of action under this Act, and the court, in its discretion, may impose, in addition to injunctive relief and actual damages, statutory damages of no more than $10,000, and award attorney's fees to the plaintiff. This paragraph imposes no affirmative obligations on any person or entity to grant employment, a license, benefit, or any other right or privilege.

(4) Certificate of good conduct. A certificate of good conduct is a statement provided by the Commission that the petitioner has proven such good conduct as set forth in the certificate to the satisfaction of the Commission. A certificate of good conduct has no legal effect and imposes no duties on third parties. The Commission shall issue certificates of good conduct such as are consistent with the principle, purpose, and goals of this Act and set forth its findings as to the good conduct of the applicant on the certificate.

Section 20. Criteria for relief. The petitioner shall address and, on the deliberations and determinations on each petition before the Commission, the Commission shall consider the following criteria for relief:

(1) the principle, purpose, and goals of this Act as applied to the petitioner;

(2) public safety, based on the nature and seriousness of the crime or crimes in the record and the evidence of rehabilitation of the petitioner;

(3) the number of offenses in the record and the disposition and penalties imposed for each;

(4) the age of the individual when the crime or crimes were committed;

(5) the circumstances surrounding the crime or crimes;

(6) the nature and severity of the harm to others as a consequence of the crime or crimes, and the extent to which the petitioner has acknowledged that harm by making efforts at restitution and shown contrition toward the victims, if any, of the crime or crimes;

(7) the length of time since the last conviction;

(8) the nature of the conditions of probation and parole and whether they were fulfilled;

(9) rehabilitative efforts relevant to the offenses and circumstances of the petitioner's life such as alcohol or substance abuse treatment; mental health treatment; anger management; education; job readiness and skills training; parenting training; and participation in community or faith based services or programs, the results of such efforts, and the references of program staff;

(10) the facts and circumstances, if any, that led the petitioner to make a choice to engage in no further criminal conduct;

(11) the petitioner's work history, both paid and voluntary, and references of employers;

(12) character references; and

(13) any other evidence the petitioner may present concerning his or her rehabilitation and commitment to refrain from criminal activity.

Section 25. Notice of eligibility for relief. Upon the final disposition of a criminal case, such as acquittal, release without conviction, being placed on supervision, or conviction of a sealable offense, the defendant shall be informed by the court of the right to petition for any of the 4 forms of relief under this Act. Upon release from a correctional facility, State or local, the individual shall again be informed of the right to petition for any of the 4 forms of relief under this Act. The notice shall be in writing and shall include the address of the Commission in the district where the incident arose.

Section 30. Guidelines. A Commission may establish guidelines for the 4 kinds of relief for purposes of putting petitioners on notice of what kind of relief, under what circumstances, is likely to be granted. The guidelines may not, however, be used to bar from full consideration petitions that ask for relief that is inconsistent with the guidelines. Every petition must be considered under the principle, purpose, and goals of this Act on its own merits.

Section 35. Contents of petition. The petition seeking relief may be submitted to the Commission in such a form and manner as the petitioner chooses, or the Commission may prescribe the use of a form it has prepared for these purposes, in which case the petitioner shall use that form. In either case, the petition shall be verified and contain the petitioner's name, all aliases, date of birth, current address, each charge, and for each charge: the case number, the date of the charge, the identity of the arresting authority, the disposition and sentence, if any, and such other and further information as the Commission may require. It shall also provide evidence of entitlement to relief based on the criteria for relief set forth in Section 20 of this Act. The petitioner may include references, statements of third parties, copies of certificates, diplomas, academic transcripts, and such other documents as may be relevant to the Commissioner's deliberations. The petitioner may request a particular kind of relief, and state why that form of relief is sought, but the Commission is not bound by the scope of relief requested in the petition and may narrow or enlarge it in a manner consistent with the principle, purpose, and goals of this Act. During the pendency of the petition, the petitioner shall promptly notify the clerk of the court of any change of address. The petitioner may also request to appear before the Commission for an interview; however, the Commission is not required to grant the request before acting on the petition.

Section 40. Fee. The fee for filing a petition shall be $75 and shall be paid at the time of filing the petition.

Section 45. Procedure.

(a) Filing. The person seeking relief under this Act shall file the petition described in Section 35 of this Act along with the fee with the Commission in the judicial district where his or her last criminal offense took place. Petitions may be filed in person or by mail.

(b) Service on law enforcement agencies. The Commission shall promptly provide a copy of the petition to each State's Attorney or prosecutor charged with the duty of prosecuting the offense or offenses from which the petitioner seeks relief, the Department of State Police, the arresting agency or agencies, and the chief legal officers of each unit of local government effecting the arrest or arrests. Unless an objection is filed with the Commission from one or more of these agencies within 90 days of notice of the petition, the Commission shall proceed to act on the petition.

(c) Hearing upon objection. If an objection is filed, the Commission shall set a date for a hearing no more than 30 days from the date the objection was filed and notify the petitioner and the party or parties that objected to the relief being sought, and shall hear evidence on whether the relief requested or any other relief under this Act should or should not be granted.

(d) Timing of deliberations. The Commission shall take initial action on the petition within 120 days of its receipt. Within that 120 day period, whether objections have been filed or not, the Commission must either (1) make a determination based on the face of the petition and what materials, if any, are submitted with it, and upon the facts adduced at the hearing, if a hearing was held, (2) make a request for further information from the petitioner, or (3) schedule an interview with the petitioner, and with third parties, with or without a request for further information. The petitioner shall be given 30 days to submit the additional requested information. If further information requested of the petitioner cannot be obtained in 30 days, the petitioner shall request an extension of time, which shall not be unreasonably withheld. The Commission, in the case of a hearing, an interview, or its request for additional information, shall make is determination on the petition within 30 days of the hearing, interview or the receipt of additional information, and if more than one apply, whichever is later in time.

Section 50. Order. The deliberations of the Commission shall be final with the issuance of an order that sets forth findings of fact and conclusions based on the principle, purpose, and goals of this Act. The order must address the community's concern for public safety and demonstrate how the Commission concluded the individual had been rehabilitated based on the criteria set forth in Section 20 of this Act. The Commission may deny all forms of relief, or grant any such relief as is authorized in Section 15 of this Act, and may set such terms and conditions on the relief as are consistent with the principle, purpose, and goals of this Act. Such conditions may include, but are not limited to, periodic drug testing and good faith participation in designated programs.

The effective date of the order may also be delayed until the required conditions are fulfilled.

Section 55. Service of order. The Commission shall provide copies of the order to such parties as are necessary to accomplish its purposes, including the petitioner, the clerk of the court or courts where the records may be found, the Department of State Police, in a form and manner prescribed by the Department, the State's Attorney or prosecutor charged with the duty of prosecuting the offense, the arresting agency, the chief legal officer of the unit of local government effecting the arrest, and such other civil and criminal justice agencies as may be necessary to provide the relief granted. If a record is ordered sealed or expunged, all references to the case, including all indexes of the case name, shall be obliterated or otherwise remove from public view.

Section 60. Effect of subsequent acts. Except where a record has been expunged, subsequent arrests affect the relief granted under a Commission's order only to the extent established in the order itself. The conviction of the petitioner of any crime other than traffic infractions and municipal violations nullifies and rescinds orders of sealing, waivers, and certificates of good conduct.

Section 65. Reporting. Each Commission shall file an annual report with the Governor and the General Assembly that sets forth: the number of petitions filed; the number where all forms of relief are denied; and the number of petitions granted, specifying the number of petitions granted by the type of relief granted.