Full Text of SB2136 102nd General Assembly
SB2136 102ND GENERAL ASSEMBLY |
| | 102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022 SB2136 Introduced 2/26/2021, by Sen. Jacqueline Y. Collins SYNOPSIS AS INTRODUCED: |
| 20 ILCS 2630/5.2 | | 725 ILCS 5/122-1 | from Ch. 38, par. 122-1 |
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Amends the Criminal Identification Act. Provides that the Illinois State Police and all law enforcement agencies within the State shall automatically expunge all criminal history records of a conviction for felony prostitution committed prior to the effective date of the amendatory Act. Establishes timelines for the automatic expungement of the records based on the date of the creation of the records. Amends the Code of Criminal Procedure of 1963. Provides that a petition for post-conviction relief may be filed by a person confined, or subject to being confined by the State, local, or federal government as a result of a State criminal conviction (rather than only by persons imprisoned in the penitentiary). Strikes a provision concerning expungement procedures for drug tests. Effective immediately.
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| | A BILL FOR |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Criminal Identification Act is amended by | 5 | | changing Section 5.2 as follows:
| 6 | | (20 ILCS 2630/5.2)
| 7 | | Sec. 5.2. Expungement, sealing, and immediate sealing. | 8 | | (a) General Provisions. | 9 | | (1) Definitions. In this Act, words and phrases have
| 10 | | the meanings set forth in this subsection, except when a
| 11 | | particular context clearly requires a different meaning. | 12 | | (A) The following terms shall have the meanings | 13 | | ascribed to them in the Unified Code of Corrections, | 14 | | 730 ILCS 5/5-1-2 through 5/5-1-22: | 15 | | (i) Business Offense (730 ILCS 5/5-1-2), | 16 | | (ii) Charge (730 ILCS 5/5-1-3), | 17 | | (iii) Court (730 ILCS 5/5-1-6), | 18 | | (iv) Defendant (730 ILCS 5/5-1-7), | 19 | | (v) Felony (730 ILCS 5/5-1-9), | 20 | | (vi) Imprisonment (730 ILCS 5/5-1-10), | 21 | | (vii) Judgment (730 ILCS 5/5-1-12), | 22 | | (viii) Misdemeanor (730 ILCS 5/5-1-14), | 23 | | (ix) Offense (730 ILCS 5/5-1-15), |
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| 1 | | (x) Parole (730 ILCS 5/5-1-16), | 2 | | (xi) Petty Offense (730 ILCS 5/5-1-17), | 3 | | (xii) Probation (730 ILCS 5/5-1-18), | 4 | | (xiii) Sentence (730 ILCS 5/5-1-19), | 5 | | (xiv) Supervision (730 ILCS 5/5-1-21), and | 6 | | (xv) Victim (730 ILCS 5/5-1-22). | 7 | | (B) As used in this Section, "charge not initiated | 8 | | by arrest" means a charge (as defined by 730 ILCS | 9 | | 5/5-1-3) brought against a defendant where the | 10 | | defendant is not arrested prior to or as a direct | 11 | | result of the charge. | 12 | | (C) "Conviction" means a judgment of conviction or | 13 | | sentence entered upon a plea of guilty or upon a | 14 | | verdict or finding of guilty of an offense, rendered | 15 | | by a legally constituted jury or by a court of | 16 | | competent jurisdiction authorized to try the case | 17 | | without a jury. An order of supervision successfully | 18 | | completed by the petitioner is not a conviction. An | 19 | | order of qualified probation (as defined in subsection | 20 | | (a)(1)(J)) successfully completed by the petitioner is | 21 | | not a conviction. An order of supervision or an order | 22 | | of qualified probation that is terminated | 23 | | unsatisfactorily is a conviction, unless the | 24 | | unsatisfactory termination is reversed, vacated, or | 25 | | modified and the judgment of conviction, if any, is | 26 | | reversed or vacated. |
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| 1 | | (D) "Criminal offense" means a petty offense, | 2 | | business offense, misdemeanor, felony, or municipal | 3 | | ordinance violation (as defined in subsection | 4 | | (a)(1)(H)). As used in this Section, a minor traffic | 5 | | offense (as defined in subsection (a)(1)(G)) shall not | 6 | | be considered a criminal offense. | 7 | | (E) "Expunge" means to physically destroy the | 8 | | records or return them to the petitioner and to | 9 | | obliterate the petitioner's name from any official | 10 | | index or public record, or both. Nothing in this Act | 11 | | shall require the physical destruction of the circuit | 12 | | court file, but such records relating to arrests or | 13 | | charges, or both, ordered expunged shall be impounded | 14 | | as required by subsections (d)(9)(A)(ii) and | 15 | | (d)(9)(B)(ii). | 16 | | (F) As used in this Section, "last sentence" means | 17 | | the sentence, order of supervision, or order of | 18 | | qualified probation (as defined by subsection | 19 | | (a)(1)(J)), for a criminal offense (as defined by | 20 | | subsection (a)(1)(D)) that terminates last in time in | 21 | | any jurisdiction, regardless of whether the petitioner | 22 | | has included the criminal offense for which the | 23 | | sentence or order of supervision or qualified | 24 | | probation was imposed in his or her petition. If | 25 | | multiple sentences, orders of supervision, or orders | 26 | | of qualified probation terminate on the same day and |
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| 1 | | are last in time, they shall be collectively | 2 | | considered the "last sentence" regardless of whether | 3 | | they were ordered to run concurrently. | 4 | | (G) "Minor traffic offense" means a petty offense, | 5 | | business offense, or Class C misdemeanor under the | 6 | | Illinois Vehicle Code or a similar provision of a | 7 | | municipal or local ordinance. | 8 | | (G-5) "Minor Cannabis Offense" means a violation | 9 | | of Section 4 or 5 of the Cannabis Control Act | 10 | | concerning not more than 30 grams of any substance | 11 | | containing cannabis, provided the violation did not | 12 | | include a penalty enhancement under Section 7 of the | 13 | | Cannabis Control Act and is not associated with an | 14 | | arrest, conviction or other disposition for a violent | 15 | | crime as defined in subsection (c) of Section 3 of the | 16 | | Rights of Crime Victims and Witnesses Act. | 17 | | (H) "Municipal ordinance violation" means an | 18 | | offense defined by a municipal or local ordinance that | 19 | | is criminal in nature and with which the petitioner | 20 | | was charged or for which the petitioner was arrested | 21 | | and released without charging. | 22 | | (I) "Petitioner" means an adult or a minor | 23 | | prosecuted as an
adult who has applied for relief | 24 | | under this Section. | 25 | | (J) "Qualified probation" means an order of | 26 | | probation under Section 10 of the Cannabis Control |
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| 1 | | Act, Section 410 of the Illinois Controlled Substances | 2 | | Act, Section 70 of the Methamphetamine Control and | 3 | | Community Protection Act, Section 5-6-3.3 or 5-6-3.4 | 4 | | of the Unified Code of Corrections, Section | 5 | | 12-4.3(b)(1) and (2) of the Criminal Code of 1961 (as | 6 | | those provisions existed before their deletion by | 7 | | Public Act 89-313), Section 10-102 of the Illinois | 8 | | Alcoholism and Other Drug Dependency Act, Section | 9 | | 40-10 of the Substance Use Disorder Act, or Section 10 | 10 | | of the Steroid Control Act. For the purpose of this | 11 | | Section, "successful completion" of an order of | 12 | | qualified probation under Section 10-102 of the | 13 | | Illinois Alcoholism and Other Drug Dependency Act and | 14 | | Section 40-10 of the Substance Use Disorder Act means | 15 | | that the probation was terminated satisfactorily and | 16 | | the judgment of conviction was vacated. | 17 | | (K) "Seal" means to physically and electronically | 18 | | maintain the records, unless the records would | 19 | | otherwise be destroyed due to age, but to make the | 20 | | records unavailable without a court order, subject to | 21 | | the exceptions in Sections 12 and 13 of this Act. The | 22 | | petitioner's name shall also be obliterated from the | 23 | | official index required to be kept by the circuit | 24 | | court clerk under Section 16 of the Clerks of Courts | 25 | | Act, but any index issued by the circuit court clerk | 26 | | before the entry of the order to seal shall not be |
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| 1 | | affected. | 2 | | (L) "Sexual offense committed against a minor" | 3 | | includes, but is
not limited to, the offenses of | 4 | | indecent solicitation of a child
or criminal sexual | 5 | | abuse when the victim of such offense is
under 18 years | 6 | | of age. | 7 | | (M) "Terminate" as it relates to a sentence or | 8 | | order of supervision or qualified probation includes | 9 | | either satisfactory or unsatisfactory termination of | 10 | | the sentence, unless otherwise specified in this | 11 | | Section. A sentence is terminated notwithstanding any | 12 | | outstanding financial legal obligation. | 13 | | (2) Minor Traffic Offenses.
Orders of supervision or | 14 | | convictions for minor traffic offenses shall not affect a | 15 | | petitioner's eligibility to expunge or seal records | 16 | | pursuant to this Section. | 17 | | (2.5) Commencing 180 days after July 29, 2016 (the | 18 | | effective date of Public Act 99-697), the law enforcement | 19 | | agency issuing the citation shall automatically expunge, | 20 | | on or before January 1 and July 1 of each year, the law | 21 | | enforcement records of a person found to have committed a | 22 | | civil law violation of subsection (a) of Section 4 of the | 23 | | Cannabis Control Act or subsection (c) of Section 3.5 of | 24 | | the Drug Paraphernalia Control Act in the law enforcement | 25 | | agency's possession or control and which contains the | 26 | | final satisfactory disposition which pertain to the person |
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| 1 | | issued a citation for that offense.
The law enforcement | 2 | | agency shall provide by rule the process for access, | 3 | | review, and to confirm the automatic expungement by the | 4 | | law enforcement agency issuing the citation.
Commencing | 5 | | 180 days after July 29, 2016 (the effective date of Public | 6 | | Act 99-697), the clerk of the circuit court shall expunge, | 7 | | upon order of the court, or in the absence of a court order | 8 | | on or before January 1 and July 1 of each year, the court | 9 | | records of a person found in the circuit court to have | 10 | | committed a civil law violation of subsection (a) of | 11 | | Section 4 of the Cannabis Control Act or subsection (c) of | 12 | | Section 3.5 of the Drug Paraphernalia Control Act in the | 13 | | clerk's possession or control and which contains the final | 14 | | satisfactory disposition which pertain to the person | 15 | | issued a citation for any of those offenses. | 16 | | (3) Exclusions. Except as otherwise provided in | 17 | | subsections (b)(5), (b)(6), (b)(8), (e), (e-5), and (e-6) | 18 | | of this Section, the court shall not order: | 19 | | (A) the sealing or expungement of the records of | 20 | | arrests or charges not initiated by arrest that result | 21 | | in an order of supervision for or conviction of:
(i) | 22 | | any sexual offense committed against a
minor; (ii) | 23 | | Section 11-501 of the Illinois Vehicle Code or a | 24 | | similar provision of a local ordinance; or (iii) | 25 | | Section 11-503 of the Illinois Vehicle Code or a | 26 | | similar provision of a local ordinance, unless the |
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| 1 | | arrest or charge is for a misdemeanor violation of | 2 | | subsection (a) of Section 11-503 or a similar | 3 | | provision of a local ordinance, that occurred prior to | 4 | | the offender reaching the age of 25 years and the | 5 | | offender has no other conviction for violating Section | 6 | | 11-501 or 11-503 of the Illinois Vehicle Code or a | 7 | | similar provision of a local ordinance. | 8 | | (B) the sealing or expungement of records of minor | 9 | | traffic offenses (as defined in subsection (a)(1)(G)), | 10 | | unless the petitioner was arrested and released | 11 | | without charging. | 12 | | (C) the sealing of the records of arrests or | 13 | | charges not initiated by arrest which result in an | 14 | | order of supervision or a conviction for the following | 15 | | offenses: | 16 | | (i) offenses included in Article 11 of the | 17 | | Criminal Code of 1961 or the Criminal Code of 2012 | 18 | | or a similar provision of a local ordinance, | 19 | | except Section 11-14 and a misdemeanor violation | 20 | | of Section 11-30 of the Criminal Code of 1961 or | 21 | | the Criminal Code of 2012, or a similar provision | 22 | | of a local ordinance; | 23 | | (ii) Section 11-1.50, 12-3.4, 12-15, 12-30, | 24 | | 26-5, or 48-1 of the Criminal Code of 1961 or the | 25 | | Criminal Code of 2012, or a similar provision of a | 26 | | local ordinance; |
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| 1 | | (iii) Sections 12-3.1 or 12-3.2 of the | 2 | | Criminal Code of 1961 or the Criminal Code of | 3 | | 2012, or Section 125 of the Stalking No Contact | 4 | | Order Act, or Section 219 of the Civil No Contact | 5 | | Order Act, or a similar provision of a local | 6 | | ordinance; | 7 | | (iv) Class A misdemeanors or felony offenses | 8 | | under the Humane Care for Animals Act; or | 9 | | (v) any offense or attempted offense that | 10 | | would subject a person to registration under the | 11 | | Sex Offender Registration Act. | 12 | | (D) (blank). | 13 | | (b) Expungement. | 14 | | (1) A petitioner may petition the circuit court to | 15 | | expunge the
records of his or her arrests and charges not | 16 | | initiated by arrest when each arrest or charge not | 17 | | initiated by arrest
sought to be expunged resulted in:
(i) | 18 | | acquittal, dismissal, or the petitioner's release without | 19 | | charging, unless excluded by subsection (a)(3)(B);
(ii) a | 20 | | conviction which was vacated or reversed, unless excluded | 21 | | by subsection (a)(3)(B);
(iii) an order of supervision and | 22 | | such supervision was successfully completed by the | 23 | | petitioner, unless excluded by subsection (a)(3)(A) or | 24 | | (a)(3)(B); or
(iv) an order of qualified probation (as | 25 | | defined in subsection (a)(1)(J)) and such probation was | 26 | | successfully completed by the petitioner. |
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| 1 | | (1.5) When a petitioner seeks to have a record of | 2 | | arrest expunged under this Section, and the offender has | 3 | | been convicted of a criminal offense, the State's Attorney | 4 | | may object to the expungement on the grounds that the | 5 | | records contain specific relevant information aside from | 6 | | the mere fact of the arrest. | 7 | | (2) Time frame for filing a petition to expunge. | 8 | | (A) When the arrest or charge not initiated by | 9 | | arrest sought to be expunged resulted in an acquittal, | 10 | | dismissal, the petitioner's release without charging, | 11 | | or the reversal or vacation of a conviction, there is | 12 | | no waiting period to petition for the expungement of | 13 | | such records. | 14 | | (B) When the arrest or charge not initiated by | 15 | | arrest
sought to be expunged resulted in an order of | 16 | | supervision, successfully
completed by the petitioner, | 17 | | the following time frames will apply: | 18 | | (i) Those arrests or charges that resulted in | 19 | | orders of
supervision under Section 3-707, 3-708, | 20 | | 3-710, or 5-401.3 of the Illinois Vehicle Code or | 21 | | a similar provision of a local ordinance, or under | 22 | | Section 11-1.50, 12-3.2, or 12-15 of the Criminal | 23 | | Code of 1961 or the Criminal Code of 2012, or a | 24 | | similar provision of a local ordinance, shall not | 25 | | be eligible for expungement until 5 years have | 26 | | passed following the satisfactory termination of |
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| 1 | | the supervision. | 2 | | (i-5) Those arrests or charges that resulted | 3 | | in orders of supervision for a misdemeanor | 4 | | violation of subsection (a) of Section 11-503 of | 5 | | the Illinois Vehicle Code or a similar provision | 6 | | of a local ordinance, that occurred prior to the | 7 | | offender reaching the age of 25 years and the | 8 | | offender has no other conviction for violating | 9 | | Section 11-501 or 11-503 of the Illinois Vehicle | 10 | | Code or a similar provision of a local ordinance | 11 | | shall not be eligible for expungement until the | 12 | | petitioner has reached the age of 25 years. | 13 | | (ii) Those arrests or charges that resulted in | 14 | | orders
of supervision for any other offenses shall | 15 | | not be
eligible for expungement until 2 years have | 16 | | passed
following the satisfactory termination of | 17 | | the supervision. | 18 | | (C) When the arrest or charge not initiated by | 19 | | arrest sought to
be expunged resulted in an order of | 20 | | qualified probation, successfully
completed by the | 21 | | petitioner, such records shall not be eligible for
| 22 | | expungement until 5 years have passed following the | 23 | | satisfactory
termination of the probation. | 24 | | (3) Those records maintained by the Department for
| 25 | | persons arrested prior to their 17th birthday shall be
| 26 | | expunged as provided in Section 5-915 of the Juvenile |
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| 1 | | Court
Act of 1987. | 2 | | (4) Whenever a person has been arrested for or | 3 | | convicted of any
offense, in the name of a person whose | 4 | | identity he or she has stolen or otherwise
come into | 5 | | possession of, the aggrieved person from whom the identity
| 6 | | was stolen or otherwise obtained without authorization,
| 7 | | upon learning of the person having been arrested using his
| 8 | | or her identity, may, upon verified petition to the chief | 9 | | judge of
the circuit wherein the arrest was made, have a | 10 | | court order
entered nunc pro tunc by the Chief Judge to | 11 | | correct the
arrest record, conviction record, if any, and | 12 | | all official
records of the arresting authority, the | 13 | | Department, other
criminal justice agencies, the | 14 | | prosecutor, and the trial
court concerning such arrest, if | 15 | | any, by removing his or her name
from all such records in | 16 | | connection with the arrest and
conviction, if any, and by | 17 | | inserting in the records the
name of the offender, if | 18 | | known or ascertainable, in lieu of
the aggrieved's name. | 19 | | The records of the circuit court clerk shall be sealed | 20 | | until further order of
the court upon good cause shown and | 21 | | the name of the
aggrieved person obliterated on the | 22 | | official index
required to be kept by the circuit court | 23 | | clerk under
Section 16 of the Clerks of Courts Act, but the | 24 | | order shall
not affect any index issued by the circuit | 25 | | court clerk
before the entry of the order. Nothing in this | 26 | | Section
shall limit the Department of State Police or |
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| 1 | | other
criminal justice agencies or prosecutors from | 2 | | listing
under an offender's name the false names he or she | 3 | | has
used. | 4 | | (5) Whenever a person has been convicted of criminal
| 5 | | sexual assault, aggravated criminal sexual assault,
| 6 | | predatory criminal sexual assault of a child, criminal
| 7 | | sexual abuse, or aggravated criminal sexual abuse, the
| 8 | | victim of that offense may request that the State's
| 9 | | Attorney of the county in which the conviction occurred
| 10 | | file a verified petition with the presiding trial judge at
| 11 | | the petitioner's trial to have a court order entered to | 12 | | seal
the records of the circuit court clerk in connection
| 13 | | with the proceedings of the trial court concerning that
| 14 | | offense. However, the records of the arresting authority
| 15 | | and the Department of State Police concerning the offense
| 16 | | shall not be sealed. The court, upon good cause shown,
| 17 | | shall make the records of the circuit court clerk in
| 18 | | connection with the proceedings of the trial court
| 19 | | concerning the offense available for public inspection. | 20 | | (6) If a conviction has been set aside on direct | 21 | | review
or on collateral attack and the court determines by | 22 | | clear
and convincing evidence that the petitioner was | 23 | | factually
innocent of the charge, the court that finds the | 24 | | petitioner factually innocent of the charge shall enter an
| 25 | | expungement order for the conviction for which the | 26 | | petitioner has been determined to be innocent as provided |
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| 1 | | in subsection (b) of Section
5-5-4 of the Unified Code of | 2 | | Corrections. | 3 | | (7) Nothing in this Section shall prevent the | 4 | | Department of
State Police from maintaining all records of | 5 | | any person who
is admitted to probation upon terms and | 6 | | conditions and who
fulfills those terms and conditions | 7 | | pursuant to Section 10
of the Cannabis Control Act, | 8 | | Section 410 of the Illinois
Controlled Substances Act, | 9 | | Section 70 of the
Methamphetamine Control and Community | 10 | | Protection Act,
Section 5-6-3.3 or 5-6-3.4 of the Unified | 11 | | Code of Corrections, Section 12-4.3 or subdivision (b)(1) | 12 | | of Section 12-3.05 of the Criminal Code of 1961 or the | 13 | | Criminal Code of 2012, Section 10-102
of the Illinois | 14 | | Alcoholism and Other Drug Dependency Act,
Section 40-10 of | 15 | | the Substance Use Disorder Act, or Section 10 of the | 16 | | Steroid Control Act. | 17 | | (8) If the petitioner has been granted a certificate | 18 | | of innocence under Section 2-702 of the Code of Civil | 19 | | Procedure, the court that grants the certificate of | 20 | | innocence shall also enter an order expunging the | 21 | | conviction for which the petitioner has been determined to | 22 | | be innocent as provided in subsection (h) of Section 2-702 | 23 | | of the Code of Civil Procedure. | 24 | | (c) Sealing. | 25 | | (1) Applicability. Notwithstanding any other provision | 26 | | of this Act to the contrary, and cumulative with any |
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| 1 | | rights to expungement of criminal records, this subsection | 2 | | authorizes the sealing of criminal records of adults and | 3 | | of minors prosecuted as adults. Subsection (g) of this | 4 | | Section provides for immediate sealing of certain records. | 5 | | (2) Eligible Records. The following records may be | 6 | | sealed: | 7 | | (A) All arrests resulting in release without | 8 | | charging; | 9 | | (B) Arrests or charges not initiated by arrest | 10 | | resulting in acquittal, dismissal, or conviction when | 11 | | the conviction was reversed or vacated, except as | 12 | | excluded by subsection (a)(3)(B); | 13 | | (C) Arrests or charges not initiated by arrest | 14 | | resulting in orders of supervision, including orders | 15 | | of supervision for municipal ordinance violations, | 16 | | successfully completed by the petitioner, unless | 17 | | excluded by subsection (a)(3); | 18 | | (D) Arrests or charges not initiated by arrest | 19 | | resulting in convictions, including convictions on | 20 | | municipal ordinance violations, unless excluded by | 21 | | subsection (a)(3); | 22 | | (E) Arrests or charges not initiated by arrest | 23 | | resulting in orders of first offender probation under | 24 | | Section 10 of the Cannabis Control Act, Section 410 of | 25 | | the Illinois Controlled Substances Act, Section 70 of | 26 | | the Methamphetamine Control and Community Protection |
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| 1 | | Act, or Section 5-6-3.3 of the Unified Code of | 2 | | Corrections; and | 3 | | (F) Arrests or charges not initiated by arrest | 4 | | resulting in felony convictions unless otherwise | 5 | | excluded by subsection (a) paragraph (3) of this | 6 | | Section. | 7 | | (3) When Records Are Eligible to Be Sealed. Records | 8 | | identified as eligible under subsection (c)(2) may be | 9 | | sealed as follows: | 10 | | (A) Records identified as eligible under | 11 | | subsection (c)(2)(A) and (c)(2)(B) may be sealed at | 12 | | any time. | 13 | | (B) Except as otherwise provided in subparagraph | 14 | | (E) of this paragraph (3), records identified as | 15 | | eligible under subsection (c)(2)(C) may be sealed
2 | 16 | | years after the termination of petitioner's last | 17 | | sentence (as defined in subsection (a)(1)(F)). | 18 | | (C) Except as otherwise provided in subparagraph | 19 | | (E) of this paragraph (3), records identified as | 20 | | eligible under subsections (c)(2)(D), (c)(2)(E), and | 21 | | (c)(2)(F) may be sealed 3 years after the termination | 22 | | of the petitioner's last sentence (as defined in | 23 | | subsection (a)(1)(F)). Convictions requiring public | 24 | | registration under the Arsonist Registration Act, the | 25 | | Sex Offender Registration Act, or the Murderer and | 26 | | Violent Offender Against Youth Registration Act may |
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| 1 | | not be sealed until the petitioner is no longer | 2 | | required to register under that relevant Act. | 3 | | (D) Records identified in subsection | 4 | | (a)(3)(A)(iii) may be sealed after the petitioner has | 5 | | reached the age of 25 years. | 6 | | (E) Records identified as eligible under | 7 | | subsections (c)(2)(C), (c)(2)(D), (c)(2)(E), or | 8 | | (c)(2)(F) may be sealed upon termination of the | 9 | | petitioner's last sentence if the petitioner earned a | 10 | | high school diploma, associate's degree, career | 11 | | certificate, vocational technical certification, or | 12 | | bachelor's degree, or passed the high school level | 13 | | Test of General Educational Development, during the | 14 | | period of his or her sentence or mandatory supervised | 15 | | release. This subparagraph shall apply only to a | 16 | | petitioner who has not completed the same educational | 17 | | goal prior to the period of his or her sentence or | 18 | | mandatory supervised release. If a petition for | 19 | | sealing eligible records filed under this subparagraph | 20 | | is denied by the court, the time periods under | 21 | | subparagraph (B) or (C) shall apply to any subsequent | 22 | | petition for sealing filed by the petitioner. | 23 | | (4) Subsequent felony convictions. A person may not | 24 | | have
subsequent felony conviction records sealed as | 25 | | provided in this subsection
(c) if he or she is convicted | 26 | | of any felony offense after the date of the
sealing of |
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| 1 | | prior felony convictions as provided in this subsection | 2 | | (c). The court may, upon conviction for a subsequent | 3 | | felony offense, order the unsealing of prior felony | 4 | | conviction records previously ordered sealed by the court. | 5 | | (5) Notice of eligibility for sealing. Upon entry of a | 6 | | disposition for an eligible record under this subsection | 7 | | (c), the petitioner shall be informed by the court of the | 8 | | right to have the records sealed and the procedures for | 9 | | the sealing of the records. | 10 | | (d) Procedure. The following procedures apply to | 11 | | expungement under subsections (b), (e), and (e-6) and sealing | 12 | | under subsections (c) and (e-5): | 13 | | (1) Filing the petition. Upon becoming eligible to | 14 | | petition for
the expungement or sealing of records under | 15 | | this Section, the petitioner shall file a petition | 16 | | requesting the expungement
or sealing of records with the | 17 | | clerk of the court where the arrests occurred or the | 18 | | charges were brought, or both. If arrests occurred or | 19 | | charges were brought in multiple jurisdictions, a petition | 20 | | must be filed in each such jurisdiction. The petitioner | 21 | | shall pay the applicable fee, except no fee shall be | 22 | | required if the petitioner has obtained a court order | 23 | | waiving fees under Supreme Court Rule 298 or it is | 24 | | otherwise waived. | 25 | | (1.5) County fee waiver pilot program.
From August 9, | 26 | | 2019 (the effective date of Public Act 101-306) through |
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| 1 | | December 31, 2020, in a county of 3,000,000 or more | 2 | | inhabitants, no fee shall be required to be paid by a | 3 | | petitioner if the records sought to be expunged or sealed | 4 | | were arrests resulting in release without charging or | 5 | | arrests or charges not initiated by arrest resulting in | 6 | | acquittal, dismissal, or conviction when the conviction | 7 | | was reversed or vacated, unless excluded by subsection | 8 | | (a)(3)(B). The provisions of this paragraph (1.5), other | 9 | | than this sentence, are inoperative on and after January | 10 | | 1, 2022. | 11 | | (2) Contents of petition. The petition shall be
| 12 | | verified and shall contain the petitioner's name, date of
| 13 | | birth, current address and, for each arrest or charge not | 14 | | initiated by
arrest sought to be sealed or expunged, the | 15 | | case number, the date of
arrest (if any), the identity of | 16 | | the arresting authority, and such
other information as the | 17 | | court may require. During the pendency
of the proceeding, | 18 | | the petitioner shall promptly notify the
circuit court | 19 | | clerk of any change of his or her address. If the | 20 | | petitioner has received a certificate of eligibility for | 21 | | sealing from the Prisoner Review Board under paragraph | 22 | | (10) of subsection (a) of Section 3-3-2 of the Unified | 23 | | Code of Corrections, the certificate shall be attached to | 24 | | the petition. | 25 | | (3) (Blank). Drug test. The petitioner must attach to | 26 | | the petition proof that the petitioner has passed a test |
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| 1 | | taken within 30 days before the filing of the petition | 2 | | showing the absence within his or her body of all illegal | 3 | | substances as defined by the Illinois Controlled | 4 | | Substances Act, the Methamphetamine Control and Community | 5 | | Protection Act, and the Cannabis Control Act if he or she | 6 | | is petitioning to: | 7 | | (A) seal felony records under clause (c)(2)(E); | 8 | | (B) seal felony records for a violation of the | 9 | | Illinois Controlled Substances Act, the | 10 | | Methamphetamine Control and Community Protection Act, | 11 | | or the Cannabis Control Act under clause (c)(2)(F); | 12 | | (C) seal felony records under subsection (e-5); or | 13 | | (D) expunge felony records of a qualified | 14 | | probation under clause (b)(1)(iv). | 15 | | (4) Service of petition. The circuit court clerk shall | 16 | | promptly
serve a copy of the petition and documentation to | 17 | | support the petition under subsection (e-5) or (e-6) on | 18 | | the State's Attorney or
prosecutor charged with the duty | 19 | | of prosecuting the
offense, the Department of State | 20 | | Police, the arresting
agency and the chief legal officer | 21 | | of the unit of local
government effecting the arrest. | 22 | | (5) Objections. | 23 | | (A) Any party entitled to notice of the petition | 24 | | may file an objection to the petition. All objections | 25 | | shall be in writing, shall be filed with the circuit | 26 | | court clerk, and shall state with specificity the |
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| 1 | | basis of the objection. Whenever a person who has been | 2 | | convicted of an offense is granted
a pardon by the | 3 | | Governor which specifically authorizes expungement, an | 4 | | objection to the petition may not be filed. | 5 | | (B) Objections to a petition to expunge or seal | 6 | | must be filed within 60 days of the date of service of | 7 | | the petition. | 8 | | (6) Entry of order. | 9 | | (A) The Chief Judge of the circuit wherein the | 10 | | charge was brought, any judge of that circuit | 11 | | designated by the Chief Judge, or in counties of less | 12 | | than 3,000,000 inhabitants, the presiding trial judge | 13 | | at the petitioner's trial, if any, shall rule on the | 14 | | petition to expunge or seal as set forth in this | 15 | | subsection (d)(6). | 16 | | (B) Unless the State's Attorney or prosecutor, the | 17 | | Department of
State Police, the arresting agency, or | 18 | | the chief legal officer
files an objection to the | 19 | | petition to expunge or seal within 60 days from the | 20 | | date of service of the petition, the court shall enter | 21 | | an order granting or denying the petition. | 22 | | (C) Notwithstanding any other provision of law, | 23 | | the court shall not deny a petition for sealing under | 24 | | this Section because the petitioner has not satisfied | 25 | | an outstanding legal financial obligation established, | 26 | | imposed, or originated by a court, law enforcement |
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| 1 | | agency, or a municipal, State, county, or other unit | 2 | | of local government, including, but not limited to, | 3 | | any cost, assessment, fine, or fee. An outstanding | 4 | | legal financial obligation does not include any court | 5 | | ordered restitution to a victim under Section 5-5-6 of | 6 | | the Unified Code of Corrections, unless the | 7 | | restitution has been converted to a civil judgment. | 8 | | Nothing in this subparagraph (C) waives, rescinds, or | 9 | | abrogates a legal financial obligation or otherwise | 10 | | eliminates or affects the right of the holder of any | 11 | | financial obligation to pursue collection under | 12 | | applicable federal, State, or local law. | 13 | | (7) Hearings. If an objection is filed, the court | 14 | | shall set a date for a hearing and notify the petitioner | 15 | | and all parties entitled to notice of the petition of the | 16 | | hearing date at least 30 days prior to the hearing. Prior | 17 | | to the hearing, the State's Attorney shall consult with | 18 | | the Department as to the appropriateness of the relief | 19 | | sought in the petition to expunge or seal. At the hearing, | 20 | | the court shall hear evidence on whether the petition | 21 | | should or should not be granted, and shall grant or deny | 22 | | the petition to expunge or seal the records based on the | 23 | | evidence presented at the hearing. The court may consider | 24 | | the following: | 25 | | (A) the strength of the evidence supporting the | 26 | | defendant's conviction; |
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| 1 | | (B) the reasons for retention of the conviction | 2 | | records by the State; | 3 | | (C) the petitioner's age, criminal record history, | 4 | | and employment history; | 5 | | (D) the period of time between the petitioner's | 6 | | arrest on the charge resulting in the conviction and | 7 | | the filing of the petition under this Section; and | 8 | | (E) the specific adverse consequences the | 9 | | petitioner may be subject to if the petition is | 10 | | denied. | 11 | | (8) Service of order. After entering an order to | 12 | | expunge or
seal records, the court must provide copies of | 13 | | the order to the
Department, in a form and manner | 14 | | prescribed by the Department,
to the petitioner, to the | 15 | | State's Attorney or prosecutor
charged with the duty of | 16 | | prosecuting the offense, to the
arresting agency, to the | 17 | | chief legal officer of the unit of
local government | 18 | | effecting the arrest, and to such other
criminal justice | 19 | | agencies as may be ordered by the court. | 20 | | (9) Implementation of order. | 21 | | (A) Upon entry of an order to expunge records | 22 | | pursuant to (b)(2)(A) or (b)(2)(B)(ii), or both: | 23 | | (i) the records shall be expunged (as defined | 24 | | in subsection (a)(1)(E)) by the arresting agency, | 25 | | the Department, and any other agency as ordered by | 26 | | the court, within 60 days of the date of service of |
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| 1 | | the order, unless a motion to vacate, modify, or | 2 | | reconsider the order is filed pursuant to | 3 | | paragraph (12) of subsection (d) of this Section; | 4 | | (ii) the records of the circuit court clerk | 5 | | shall be impounded until further order of the | 6 | | court upon good cause shown and the name of the | 7 | | petitioner obliterated on the official index | 8 | | required to be kept by the circuit court clerk | 9 | | under Section 16 of the Clerks of Courts Act, but | 10 | | the order shall not affect any index issued by the | 11 | | circuit court clerk before the entry of the order; | 12 | | and | 13 | | (iii) in response to an inquiry for expunged | 14 | | records, the court, the Department, or the agency | 15 | | receiving such inquiry, shall reply as it does in | 16 | | response to inquiries when no records ever | 17 | | existed. | 18 | | (B) Upon entry of an order to expunge records | 19 | | pursuant to (b)(2)(B)(i) or (b)(2)(C), or both: | 20 | | (i) the records shall be expunged (as defined | 21 | | in subsection (a)(1)(E)) by the arresting agency | 22 | | and any other agency as ordered by the court, | 23 | | within 60 days of the date of service of the order, | 24 | | unless a motion to vacate, modify, or reconsider | 25 | | the order is filed pursuant to paragraph (12) of | 26 | | subsection (d) of this Section; |
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| 1 | | (ii) the records of the circuit court clerk | 2 | | shall be impounded until further order of the | 3 | | court upon good cause shown and the name of the | 4 | | petitioner obliterated on the official index | 5 | | required to be kept by the circuit court clerk | 6 | | under Section 16 of the Clerks of Courts Act, but | 7 | | the order shall not affect any index issued by the | 8 | | circuit court clerk before the entry of the order; | 9 | | (iii) the records shall be impounded by the
| 10 | | Department within 60 days of the date of service | 11 | | of the order as ordered by the court, unless a | 12 | | motion to vacate, modify, or reconsider the order | 13 | | is filed pursuant to paragraph (12) of subsection | 14 | | (d) of this Section; | 15 | | (iv) records impounded by the Department may | 16 | | be disseminated by the Department only as required | 17 | | by law or to the arresting authority, the State's | 18 | | Attorney, and the court upon a later arrest for | 19 | | the same or a similar offense or for the purpose of | 20 | | sentencing for any subsequent felony, and to the | 21 | | Department of Corrections upon conviction for any | 22 | | offense; and | 23 | | (v) in response to an inquiry for such records | 24 | | from anyone not authorized by law to access such | 25 | | records, the court, the Department, or the agency | 26 | | receiving such inquiry shall reply as it does in |
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| 1 | | response to inquiries when no records ever | 2 | | existed. | 3 | | (B-5) Upon entry of an order to expunge records | 4 | | under subsection (e-6): | 5 | | (i) the records shall be expunged (as defined | 6 | | in subsection (a)(1)(E)) by the arresting agency | 7 | | and any other agency as ordered by the court, | 8 | | within 60 days of the date of service of the order, | 9 | | unless a motion to vacate, modify, or reconsider | 10 | | the order is filed under paragraph (12) of | 11 | | subsection (d) of this Section; | 12 | | (ii) the records of the circuit court clerk | 13 | | shall be impounded until further order of the | 14 | | court upon good cause shown and the name of the | 15 | | petitioner obliterated on the official index | 16 | | required to be kept by the circuit court clerk | 17 | | under Section 16 of the Clerks of Courts Act, but | 18 | | the order shall not affect any index issued by the | 19 | | circuit court clerk before the entry of the order; | 20 | | (iii) the records shall be impounded by the
| 21 | | Department within 60 days of the date of service | 22 | | of the order as ordered by the court, unless a | 23 | | motion to vacate, modify, or reconsider the order | 24 | | is filed under paragraph (12) of subsection (d) of | 25 | | this Section; | 26 | | (iv) records impounded by the Department may |
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| 1 | | be disseminated by the Department only as required | 2 | | by law or to the arresting authority, the State's | 3 | | Attorney, and the court upon a later arrest for | 4 | | the same or a similar offense or for the purpose of | 5 | | sentencing for any subsequent felony, and to the | 6 | | Department of Corrections upon conviction for any | 7 | | offense; and | 8 | | (v) in response to an inquiry for these | 9 | | records from anyone not authorized by law to | 10 | | access the records, the court, the Department, or | 11 | | the agency receiving the inquiry shall reply as it | 12 | | does in response to inquiries when no records ever | 13 | | existed. | 14 | | (C) Upon entry of an order to seal records under | 15 | | subsection
(c), the arresting agency, any other agency | 16 | | as ordered by the court, the Department, and the court | 17 | | shall seal the records (as defined in subsection | 18 | | (a)(1)(K)). In response to an inquiry for such | 19 | | records, from anyone not authorized by law to access | 20 | | such records, the court, the Department, or the agency | 21 | | receiving such inquiry shall reply as it does in | 22 | | response to inquiries when no records ever existed. | 23 | | (D) The Department shall send written notice to | 24 | | the petitioner of its compliance with each order to | 25 | | expunge or seal records within 60 days of the date of | 26 | | service of that order or, if a motion to vacate, |
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| 1 | | modify, or reconsider is filed, within 60 days of | 2 | | service of the order resolving the motion, if that | 3 | | order requires the Department to expunge or seal | 4 | | records. In the event of an appeal from the circuit | 5 | | court order, the Department shall send written notice | 6 | | to the petitioner of its compliance with an Appellate | 7 | | Court or Supreme Court judgment to expunge or seal | 8 | | records within 60 days of the issuance of the court's | 9 | | mandate. The notice is not required while any motion | 10 | | to vacate, modify, or reconsider, or any appeal or | 11 | | petition for discretionary appellate review, is | 12 | | pending. | 13 | | (E) Upon motion, the court may order that a sealed | 14 | | judgment or other court record necessary to | 15 | | demonstrate the amount of any legal financial | 16 | | obligation due and owing be made available for the | 17 | | limited purpose of collecting any legal financial | 18 | | obligations owed by the petitioner that were | 19 | | established, imposed, or originated in the criminal | 20 | | proceeding for which those records have been sealed. | 21 | | The records made available under this subparagraph (E) | 22 | | shall not be entered into the official index required | 23 | | to be kept by the circuit court clerk under Section 16 | 24 | | of the Clerks of Courts Act and shall be immediately | 25 | | re-impounded upon the collection of the outstanding | 26 | | financial obligations. |
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| 1 | | (F) Notwithstanding any other provision of this | 2 | | Section, a circuit court clerk may access a sealed | 3 | | record for the limited purpose of collecting payment | 4 | | for any legal financial obligations that were | 5 | | established, imposed, or originated in the criminal | 6 | | proceedings for which those records have been sealed. | 7 | | (10) Fees. The Department may charge the petitioner a | 8 | | fee equivalent to the cost of processing any order to | 9 | | expunge or seal records. Notwithstanding any provision of | 10 | | the Clerks of Courts Act to the contrary, the circuit | 11 | | court clerk may charge a fee equivalent to the cost | 12 | | associated with the sealing or expungement of records by | 13 | | the circuit court clerk. From the total filing fee | 14 | | collected for the petition to seal or expunge, the circuit | 15 | | court clerk shall deposit $10 into the Circuit Court Clerk | 16 | | Operation and Administrative Fund, to be used to offset | 17 | | the costs incurred by the circuit court clerk in | 18 | | performing the additional duties required to serve the | 19 | | petition to seal or expunge on all parties. The circuit | 20 | | court clerk shall collect and forward the Department of | 21 | | State Police portion of the fee to the Department and it | 22 | | shall be deposited in the State Police Services Fund. If | 23 | | the record brought under an expungement petition was | 24 | | previously sealed under this Section, the fee for the | 25 | | expungement petition for that same record shall be waived. | 26 | | (11) Final Order. No court order issued under the |
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| 1 | | expungement or sealing provisions of this Section shall | 2 | | become final for purposes of appeal until 30 days after | 3 | | service of the order on the petitioner and all parties | 4 | | entitled to notice of the petition. | 5 | | (12) Motion to Vacate, Modify, or Reconsider. Under | 6 | | Section 2-1203 of the Code of Civil Procedure, the | 7 | | petitioner or any party entitled to notice may file a | 8 | | motion to vacate, modify, or reconsider the order granting | 9 | | or denying the petition to expunge or seal within 60 days | 10 | | of service of the order. If filed more than 60 days after | 11 | | service of the order, a petition to vacate, modify, or | 12 | | reconsider shall comply with subsection (c) of Section | 13 | | 2-1401 of the Code of Civil Procedure. Upon filing of a | 14 | | motion to vacate, modify, or reconsider, notice of the | 15 | | motion shall be served upon the petitioner and all parties | 16 | | entitled to notice of the petition. | 17 | | (13) Effect of Order. An order granting a petition | 18 | | under the expungement or sealing provisions of this | 19 | | Section shall not be considered void because it fails to | 20 | | comply with the provisions of this Section or because of | 21 | | any error asserted in a motion to vacate, modify, or | 22 | | reconsider. The circuit court retains jurisdiction to | 23 | | determine whether the order is voidable and to vacate, | 24 | | modify, or reconsider its terms based on a motion filed | 25 | | under paragraph (12) of this subsection (d). | 26 | | (14) Compliance with Order Granting Petition to Seal |
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| 1 | | Records. Unless a court has entered a stay of an order | 2 | | granting a petition to seal, all parties entitled to | 3 | | notice of the petition must fully comply with the terms of | 4 | | the order within 60 days of service of the order even if a | 5 | | party is seeking relief from the order through a motion | 6 | | filed under paragraph (12) of this subsection (d) or is | 7 | | appealing the order. | 8 | | (15) Compliance with Order Granting Petition to | 9 | | Expunge Records. While a party is seeking relief from the | 10 | | order granting the petition to expunge through a motion | 11 | | filed under paragraph (12) of this subsection (d) or is | 12 | | appealing the order, and unless a court has entered a stay | 13 | | of that order, the parties entitled to notice of the | 14 | | petition must seal, but need not expunge, the records | 15 | | until there is a final order on the motion for relief or, | 16 | | in the case of an appeal, the issuance of that court's | 17 | | mandate. | 18 | | (16) The changes to this subsection (d) made by Public | 19 | | Act 98-163 apply to all petitions pending on August 5, | 20 | | 2013 (the effective date of Public Act 98-163) and to all | 21 | | orders ruling on a petition to expunge or seal on or after | 22 | | August 5, 2013 (the effective date of Public Act 98-163). | 23 | | (e) Whenever a person who has been convicted of an offense | 24 | | is granted
a pardon by the Governor which specifically | 25 | | authorizes expungement, he or she may,
upon verified petition | 26 | | to the Chief Judge of the circuit where the person had
been |
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| 1 | | convicted, any judge of the circuit designated by the Chief | 2 | | Judge, or in
counties of less than 3,000,000 inhabitants, the | 3 | | presiding trial judge at the
defendant's trial, have a court | 4 | | order entered expunging the record of
arrest from the official | 5 | | records of the arresting authority and order that the
records | 6 | | of the circuit court clerk and the Department be sealed until
| 7 | | further order of the court upon good cause shown or as | 8 | | otherwise provided
herein, and the name of the defendant | 9 | | obliterated from the official index
requested to be kept by | 10 | | the circuit court clerk under Section 16 of the Clerks
of | 11 | | Courts Act in connection with the arrest and conviction for | 12 | | the offense for
which he or she had been pardoned but the order | 13 | | shall not affect any index issued by
the circuit court clerk | 14 | | before the entry of the order. All records sealed by
the | 15 | | Department may be disseminated by the Department only to the | 16 | | arresting authority, the State's Attorney, and the court upon | 17 | | a later
arrest for the same or similar offense or for the | 18 | | purpose of sentencing for any
subsequent felony. Upon | 19 | | conviction for any subsequent offense, the Department
of | 20 | | Corrections shall have access to all sealed records of the | 21 | | Department
pertaining to that individual. Upon entry of the | 22 | | order of expungement, the
circuit court clerk shall promptly | 23 | | mail a copy of the order to the
person who was pardoned. | 24 | | (e-5) Whenever a person who has been convicted of an | 25 | | offense is granted a certificate of eligibility for sealing by | 26 | | the Prisoner Review Board which specifically authorizes |
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| 1 | | sealing, he or she may, upon verified petition to the Chief | 2 | | Judge of the circuit where the person had been convicted, any | 3 | | judge of the circuit designated by the Chief Judge, or in | 4 | | counties of less than 3,000,000 inhabitants, the presiding | 5 | | trial judge at the petitioner's trial, have a court order | 6 | | entered sealing the record of arrest from the official records | 7 | | of the arresting authority and order that the records of the | 8 | | circuit court clerk and the Department be sealed until further | 9 | | order of the court upon good cause shown or as otherwise | 10 | | provided herein, and the name of the petitioner obliterated | 11 | | from the official index requested to be kept by the circuit | 12 | | court clerk under Section 16 of the Clerks of Courts Act in | 13 | | connection with the arrest and conviction for the offense for | 14 | | which he or she had been granted the certificate but the order | 15 | | shall not affect any index issued by the circuit court clerk | 16 | | before the entry of the order. All records sealed by the | 17 | | Department may be disseminated by the Department only as | 18 | | required by this Act or to the arresting authority, a law | 19 | | enforcement agency, the State's Attorney, and the court upon a | 20 | | later arrest for the same or similar offense or for the purpose | 21 | | of sentencing for any subsequent felony. Upon conviction for | 22 | | any subsequent offense, the Department of Corrections shall | 23 | | have access to all sealed records of the Department pertaining | 24 | | to that individual. Upon entry of the order of sealing, the | 25 | | circuit court clerk shall promptly mail a copy of the order to | 26 | | the person who was granted the certificate of eligibility for |
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| 1 | | sealing. | 2 | | (e-6) Whenever a person who has been convicted of an | 3 | | offense is granted a certificate of eligibility for | 4 | | expungement by the Prisoner Review Board which specifically | 5 | | authorizes expungement, he or she may, upon verified petition | 6 | | to the Chief Judge of the circuit where the person had been | 7 | | convicted, any judge of the circuit designated by the Chief | 8 | | Judge, or in counties of less than 3,000,000 inhabitants, the | 9 | | presiding trial judge at the petitioner's trial, have a court | 10 | | order entered expunging the record of arrest from the official | 11 | | records of the arresting authority and order that the records | 12 | | of the circuit court clerk and the Department be sealed until | 13 | | further order of the court upon good cause shown or as | 14 | | otherwise provided herein, and the name of the petitioner | 15 | | obliterated from the official index requested to be kept by | 16 | | the circuit court clerk under Section 16 of the Clerks of | 17 | | Courts Act in connection with the arrest and conviction for | 18 | | the offense for which he or she had been granted the | 19 | | certificate but the order shall not affect any index issued by | 20 | | the circuit court clerk before the entry of the order. All | 21 | | records sealed by the Department may be disseminated by the | 22 | | Department only as required by this Act or to the arresting | 23 | | authority, a law enforcement agency, the State's Attorney, and | 24 | | the court upon a later arrest for the same or similar offense | 25 | | or for the purpose of sentencing for any subsequent felony. | 26 | | Upon conviction for any subsequent offense, the Department of |
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| 1 | | Corrections shall have access to all expunged records of the | 2 | | Department pertaining to that individual. Upon entry of the | 3 | | order of expungement, the circuit court clerk shall promptly | 4 | | mail a copy of the order to the person who was granted the | 5 | | certificate of eligibility for expungement. | 6 | | (f) Subject to available funding, the Illinois Department
| 7 | | of Corrections shall conduct a study of the impact of sealing,
| 8 | | especially on employment and recidivism rates, utilizing a
| 9 | | random sample of those who apply for the sealing of their
| 10 | | criminal records under Public Act 93-211. At the request of | 11 | | the
Illinois Department of Corrections, records of the | 12 | | Illinois
Department of Employment Security shall be utilized | 13 | | as
appropriate to assist in the study. The study shall not
| 14 | | disclose any data in a manner that would allow the
| 15 | | identification of any particular individual or employing unit.
| 16 | | The study shall be made available to the General Assembly no
| 17 | | later than September 1, 2010.
| 18 | | (g) Immediate Sealing. | 19 | | (1) Applicability. Notwithstanding any other provision | 20 | | of this Act to the contrary, and cumulative with any | 21 | | rights to expungement or sealing of criminal records, this | 22 | | subsection authorizes the immediate sealing of criminal | 23 | | records of adults and of minors prosecuted as adults. | 24 | | (2) Eligible Records. Arrests or charges not initiated | 25 | | by arrest resulting in acquittal or dismissal with | 26 | | prejudice, except as excluded by subsection (a)(3)(B), |
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| 1 | | that occur on or after January 1, 2018 (the effective date | 2 | | of Public Act 100-282), may be sealed immediately if the | 3 | | petition is filed with the circuit court clerk on the same | 4 | | day and during the same hearing in which the case is | 5 | | disposed. | 6 | | (3) When Records are Eligible to be Immediately | 7 | | Sealed. Eligible records under paragraph (2) of this | 8 | | subsection (g) may be sealed immediately after entry of | 9 | | the final disposition of a case, notwithstanding the | 10 | | disposition of other charges in the same case. | 11 | | (4) Notice of Eligibility for Immediate Sealing. Upon | 12 | | entry of a disposition for an eligible record under this | 13 | | subsection (g), the defendant shall be informed by the | 14 | | court of his or her right to have eligible records | 15 | | immediately sealed and the procedure for the immediate | 16 | | sealing of these records. | 17 | | (5) Procedure. The following procedures apply to | 18 | | immediate sealing under this subsection (g). | 19 | | (A) Filing the Petition. Upon entry of the final | 20 | | disposition of the case, the defendant's attorney may | 21 | | immediately petition the court, on behalf of the | 22 | | defendant, for immediate sealing of eligible records | 23 | | under paragraph (2) of this subsection (g) that are | 24 | | entered on or after January 1, 2018 (the effective | 25 | | date of Public Act 100-282). The immediate sealing | 26 | | petition may be filed with the circuit court clerk |
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| 1 | | during the hearing in which the final disposition of | 2 | | the case is entered. If the defendant's attorney does | 3 | | not file the petition for immediate sealing during the | 4 | | hearing, the defendant may file a petition for sealing | 5 | | at any time as authorized under subsection (c)(3)(A). | 6 | | (B) Contents of Petition. The immediate sealing | 7 | | petition shall be verified and shall contain the | 8 | | petitioner's name, date of birth, current address, and | 9 | | for each eligible record, the case number, the date of | 10 | | arrest if applicable, the identity of the arresting | 11 | | authority if applicable, and other information as the | 12 | | court may require. | 13 | | (C) Drug Test. The petitioner shall not be | 14 | | required to attach proof that he or she has passed a | 15 | | drug test. | 16 | | (D) Service of Petition. A copy of the petition | 17 | | shall be served on the State's Attorney in open court. | 18 | | The petitioner shall not be required to serve a copy of | 19 | | the petition on any other agency. | 20 | | (E) Entry of Order. The presiding trial judge | 21 | | shall enter an order granting or denying the petition | 22 | | for immediate sealing during the hearing in which it | 23 | | is filed. Petitions for immediate sealing shall be | 24 | | ruled on in the same hearing in which the final | 25 | | disposition of the case is entered. | 26 | | (F) Hearings. The court shall hear the petition |
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| 1 | | for immediate sealing on the same day and during the | 2 | | same hearing in which the disposition is rendered. | 3 | | (G) Service of Order. An order to immediately seal | 4 | | eligible records shall be served in conformance with | 5 | | subsection (d)(8). | 6 | | (H) Implementation of Order. An order to | 7 | | immediately seal records shall be implemented in | 8 | | conformance with subsections (d)(9)(C) and (d)(9)(D). | 9 | | (I) Fees. The fee imposed by the circuit court | 10 | | clerk and the Department of State Police shall comply | 11 | | with paragraph (1) of subsection (d) of this Section. | 12 | | (J) Final Order. No court order issued under this | 13 | | subsection (g) shall become final for purposes of | 14 | | appeal until 30 days after service of the order on the | 15 | | petitioner and all parties entitled to service of the | 16 | | order in conformance with subsection (d)(8). | 17 | | (K) Motion to Vacate, Modify, or Reconsider. Under | 18 | | Section 2-1203 of the Code of Civil Procedure, the | 19 | | petitioner, State's Attorney, or the Department of | 20 | | State Police may file a motion to vacate, modify, or | 21 | | reconsider the order denying the petition to | 22 | | immediately seal within 60 days of service of the | 23 | | order. If filed more than 60 days after service of the | 24 | | order, a petition to vacate, modify, or reconsider | 25 | | shall comply with subsection (c) of Section 2-1401 of | 26 | | the Code of Civil Procedure. |
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| 1 | | (L) Effect of Order. An order granting an | 2 | | immediate sealing petition shall not be considered | 3 | | void because it fails to comply with the provisions of | 4 | | this Section or because of an error asserted in a | 5 | | motion to vacate, modify, or reconsider. The circuit | 6 | | court retains jurisdiction to determine whether the | 7 | | order is voidable, and to vacate, modify, or | 8 | | reconsider its terms based on a motion filed under | 9 | | subparagraph (L) of this subsection (g). | 10 | | (M) Compliance with Order Granting Petition to | 11 | | Seal Records. Unless a court has entered a stay of an | 12 | | order granting a petition to immediately seal, all | 13 | | parties entitled to service of the order must fully | 14 | | comply with the terms of the order within 60 days of | 15 | | service of the order. | 16 | | (h) Sealing; trafficking victims. | 17 | | (1) A trafficking victim as defined by paragraph (10) | 18 | | of subsection (a) of Section 10-9 of the Criminal Code of | 19 | | 2012 shall be eligible to petition for immediate sealing | 20 | | of his or her criminal record upon the completion of his or | 21 | | her last sentence if his or her participation in the | 22 | | underlying offense was a direct result of human | 23 | | trafficking under Section 10-9 of the Criminal Code of | 24 | | 2012 or a severe form of trafficking under the federal | 25 | | Trafficking Victims Protection Act. | 26 | | (2) A petitioner under this subsection (h), in |
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| 1 | | addition to the requirements provided under paragraph (4) | 2 | | of subsection (d) of this Section, shall include in his or | 3 | | her petition a clear and concise statement that: (A) he or | 4 | | she was a victim of human trafficking at the time of the | 5 | | offense; and (B) that his or her participation in the | 6 | | offense was a direct result of human trafficking under | 7 | | Section 10-9 of the Criminal Code of 2012 or a severe form | 8 | | of trafficking under the federal Trafficking Victims | 9 | | Protection Act. | 10 | | (3) If an objection is filed alleging that the | 11 | | petitioner is not entitled to immediate sealing under this | 12 | | subsection (h), the court shall conduct a hearing under | 13 | | paragraph (7) of subsection (d) of this Section and the | 14 | | court shall determine whether the petitioner is entitled | 15 | | to immediate sealing under this subsection (h). A | 16 | | petitioner is eligible for immediate relief under this | 17 | | subsection (h) if he or she shows, by a preponderance of | 18 | | the evidence, that: (A) he or she was a victim of human | 19 | | trafficking at the time of the offense; and (B) that his or | 20 | | her participation in the offense was a direct result of | 21 | | human trafficking under Section 10-9 of the Criminal Code | 22 | | of 2012 or a severe form of trafficking under the federal | 23 | | Trafficking Victims Protection Act. | 24 | | (i) Minor Cannabis Offenses under the Cannabis Control | 25 | | Act. | 26 | | (1) Expungement of Arrest Records of Minor Cannabis |
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| 1 | | Offenses. | 2 | | (A) The Department of State Police and all law | 3 | | enforcement agencies within the State shall | 4 | | automatically expunge all criminal history records of | 5 | | an arrest, charge not initiated by arrest, order of | 6 | | supervision, or order of qualified probation for a | 7 | | Minor Cannabis Offense committed prior to June 25, | 8 | | 2019 (the effective date of Public Act 101-27) if: | 9 | | (i) One year or more has elapsed since the | 10 | | date of the arrest or law enforcement interaction | 11 | | documented in the records; and | 12 | | (ii) No criminal charges were filed relating | 13 | | to the arrest or law enforcement interaction or | 14 | | criminal charges were filed and subsequently | 15 | | dismissed or vacated or the arrestee was | 16 | | acquitted. | 17 | | (B) If the law enforcement agency is unable to | 18 | | verify satisfaction of condition (ii) in paragraph | 19 | | (A), records that satisfy condition (i) in paragraph | 20 | | (A) shall be automatically expunged. | 21 | | (C) Records shall be expunged by the law | 22 | | enforcement agency under the following timelines: | 23 | | (i) Records created prior to June 25, 2019 | 24 | | (the effective date of Public Act 101-27), but on | 25 | | or after January 1, 2013, shall be automatically | 26 | | expunged prior to January 1, 2021; |
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| 1 | | (ii) Records created prior to January 1, 2013, | 2 | | but on or after January 1, 2000, shall be | 3 | | automatically expunged prior to January 1, 2023; | 4 | | (iii) Records created prior to January 1, 2000 | 5 | | shall be automatically expunged prior to January | 6 | | 1, 2025. | 7 | | In response to an inquiry for expunged records, | 8 | | the law enforcement agency receiving such inquiry | 9 | | shall reply as it does in response to inquiries when no | 10 | | records ever existed; however, it shall provide a | 11 | | certificate of disposition or confirmation that the | 12 | | record was expunged to the individual whose record was | 13 | | expunged if such a record exists. | 14 | | (D) Nothing in this Section shall be construed to | 15 | | restrict or modify an individual's right to have that | 16 | | individual's records expunged except as otherwise may | 17 | | be provided in this Act, or diminish or abrogate any | 18 | | rights or remedies otherwise available to the | 19 | | individual. | 20 | | (2) Pardons Authorizing Expungement of Minor Cannabis | 21 | | Offenses. | 22 | | (A) Upon June 25, 2019 (the effective date of | 23 | | Public Act 101-27), the Department of State Police | 24 | | shall review all criminal history record information | 25 | | and identify all records that meet all of the | 26 | | following criteria: |
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| 1 | | (i) one or more convictions for a Minor | 2 | | Cannabis Offense; | 3 | | (ii) the conviction identified in paragraph | 4 | | (2)(A)(i) did not include a penalty enhancement | 5 | | under Section 7 of the Cannabis Control Act; and | 6 | | (iii) the conviction identified in paragraph | 7 | | (2)(A)(i) is not associated with a conviction for | 8 | | a violent crime as defined in subsection (c) of | 9 | | Section 3 of the Rights of Crime Victims and | 10 | | Witnesses Act. | 11 | | (B) Within 180 days after June 25, 2019 (the | 12 | | effective date of Public Act 101-27), the Department | 13 | | of State Police shall notify the Prisoner Review Board | 14 | | of all such records that meet the criteria established | 15 | | in paragraph (2)(A). | 16 | | (i) The Prisoner Review Board shall notify the | 17 | | State's Attorney of the county of conviction of | 18 | | each record identified by State Police in | 19 | | paragraph (2)(A) that is classified as a Class 4 | 20 | | felony. The State's Attorney may provide a written | 21 | | objection to the Prisoner Review Board on the sole | 22 | | basis that the record identified does not meet the | 23 | | criteria established in paragraph (2)(A). Such an | 24 | | objection must be filed within 60 days or by such | 25 | | later date set by the Prisoner Review Board in the | 26 | | notice after the State's Attorney received notice |
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| 1 | | from the Prisoner Review Board. | 2 | | (ii) In response to a written objection from a | 3 | | State's Attorney, the Prisoner Review Board is | 4 | | authorized to conduct a non-public hearing to | 5 | | evaluate the information provided in the | 6 | | objection. | 7 | | (iii) The Prisoner Review Board shall make a | 8 | | confidential and privileged recommendation to the | 9 | | Governor as to whether to grant a pardon | 10 | | authorizing expungement for each of the records | 11 | | identified by the Department of State Police as | 12 | | described in paragraph (2)(A). | 13 | | (C) If an individual has been granted a pardon | 14 | | authorizing expungement as described in this Section, | 15 | | the Prisoner Review Board, through the Attorney | 16 | | General, shall file a petition for expungement with | 17 | | the Chief Judge of the circuit or any judge of the | 18 | | circuit designated by the Chief Judge where the | 19 | | individual had been convicted. Such petition may | 20 | | include more than one individual. Whenever an | 21 | | individual who has been convicted of an offense is | 22 | | granted a pardon by the Governor that specifically | 23 | | authorizes expungement, an objection to the petition | 24 | | may not be filed. Petitions to expunge under this | 25 | | subsection (i) may include more than one individual. | 26 | | Within 90 days of the filing of such a petition, the |
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| 1 | | court shall enter an order expunging the records of | 2 | | arrest from the official records of the arresting | 3 | | authority and order that the records of the circuit | 4 | | court clerk and the Department of State Police be | 5 | | expunged and the name of the defendant obliterated | 6 | | from the official index requested to be kept by the | 7 | | circuit court clerk under Section 16 of the Clerks of | 8 | | Courts Act in connection with the arrest and | 9 | | conviction for the offense for which the individual | 10 | | had received a pardon but the order shall not affect | 11 | | any index issued by the circuit court clerk before the | 12 | | entry of the order. Upon entry of the order of | 13 | | expungement, the circuit court clerk shall promptly | 14 | | provide a copy of the order and a certificate of | 15 | | disposition to the individual who was pardoned to the | 16 | | individual's last known address or by electronic means | 17 | | (if available) or otherwise make it available to the | 18 | | individual upon request. | 19 | | (D) Nothing in this Section is intended to | 20 | | diminish or abrogate any rights or remedies otherwise | 21 | | available to the individual. | 22 | | (3) Any individual may file a motion to vacate and | 23 | | expunge a conviction for a misdemeanor or Class 4 felony | 24 | | violation of Section 4 or Section 5 of the Cannabis | 25 | | Control Act. Motions to vacate and expunge under this | 26 | | subsection (i) may be filed with the circuit court, Chief |
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| 1 | | Judge of a judicial circuit or any judge of the circuit | 2 | | designated by the Chief Judge. The circuit court clerk | 3 | | shall promptly serve a copy of the motion to vacate and | 4 | | expunge, and any supporting documentation, on the State's | 5 | | Attorney or prosecutor charged with the duty of | 6 | | prosecuting the offense. When considering such a motion to | 7 | | vacate and expunge, a court shall consider the following: | 8 | | the reasons to retain the records provided by law | 9 | | enforcement, the petitioner's age, the petitioner's age at | 10 | | the time of offense, the time since the conviction, and | 11 | | the specific adverse consequences if denied. An individual | 12 | | may file such a petition after the completion of any | 13 | | non-financial sentence or non-financial condition imposed | 14 | | by the conviction. Within 60 days of the filing of such | 15 | | motion, a State's Attorney may file an objection to such a | 16 | | petition along with supporting evidence. If a motion to | 17 | | vacate and expunge is granted, the records shall be | 18 | | expunged in accordance with subparagraphs (d)(8) and | 19 | | (d)(9)(A) of this Section. An agency providing civil legal | 20 | | aid, as defined by Section 15 of the Public Interest | 21 | | Attorney Assistance Act, assisting individuals seeking to | 22 | | file a motion to vacate and expunge under this subsection | 23 | | may file motions to vacate and expunge with the Chief | 24 | | Judge of a judicial circuit or any judge of the circuit | 25 | | designated by the Chief Judge, and the motion may include | 26 | | more than one individual. Motions filed by an agency |
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| 1 | | providing civil legal aid concerning more than one | 2 | | individual may be prepared, presented, and signed | 3 | | electronically. | 4 | | (4) Any State's Attorney may file a motion to vacate | 5 | | and expunge a conviction for a misdemeanor or Class 4 | 6 | | felony violation of Section 4 or Section 5 of the Cannabis | 7 | | Control Act. Motions to vacate and expunge under this | 8 | | subsection (i) may be filed with the circuit court, Chief | 9 | | Judge of a judicial circuit or any judge of the circuit | 10 | | designated by the Chief Judge, and may include more than | 11 | | one individual. Motions filed by a State's Attorney | 12 | | concerning more than one individual may be prepared, | 13 | | presented, and signed electronically. When considering | 14 | | such a motion to vacate and expunge, a court shall | 15 | | consider the following: the reasons to retain the records | 16 | | provided by law enforcement, the individual's age, the | 17 | | individual's age at the time of offense, the time since | 18 | | the conviction, and the specific adverse consequences if | 19 | | denied. Upon entry of an order granting a motion to vacate | 20 | | and expunge records pursuant to this Section, the State's | 21 | | Attorney shall notify the Prisoner Review Board within 30 | 22 | | days. Upon entry of the order of expungement, the circuit | 23 | | court clerk shall promptly provide a copy of the order and | 24 | | a certificate of disposition to the individual whose | 25 | | records will be expunged to the individual's last known | 26 | | address or by electronic means (if available) or otherwise |
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| 1 | | make available to the individual upon request. If a motion | 2 | | to vacate and expunge is granted, the records shall be | 3 | | expunged in accordance with subparagraphs (d)(8) and | 4 | | (d)(9)(A) of this Section. | 5 | | (5) In the public interest, the State's Attorney of a | 6 | | county has standing to file motions to vacate and expunge | 7 | | pursuant to this Section in the circuit court with | 8 | | jurisdiction over the underlying conviction. | 9 | | (6) If a person is arrested for a Minor Cannabis | 10 | | Offense as defined in this Section before June 25, 2019 | 11 | | (the effective date of Public Act 101-27) and the person's | 12 | | case is still pending but a sentence has not been imposed, | 13 | | the person may petition the court in which the charges are | 14 | | pending for an order to summarily dismiss those charges | 15 | | against him or her, and expunge all official records of | 16 | | his or her arrest, plea, trial, conviction, incarceration, | 17 | | supervision, or expungement. If the court determines, upon | 18 | | review, that:
(A) the person was arrested before June 25, | 19 | | 2019 (the effective date of Public Act 101-27) for an | 20 | | offense that has been made eligible for expungement;
(B) | 21 | | the case is pending at the time; and
(C) the person has not | 22 | | been sentenced of the minor cannabis violation eligible | 23 | | for expungement under this subsection, the court shall | 24 | | consider the following: the reasons to retain the records | 25 | | provided by law enforcement, the petitioner's age, the | 26 | | petitioner's age at the time of offense, the time since |
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| 1 | | the conviction, and the specific adverse consequences if | 2 | | denied. If a motion to dismiss and expunge is granted, the | 3 | | records shall be expunged in accordance with subparagraph | 4 | | (d)(9)(A) of this Section. | 5 | | (7) A person imprisoned solely as a result of one or | 6 | | more convictions for Minor Cannabis Offenses under this | 7 | | subsection (i) shall be released from incarceration upon | 8 | | the issuance of an order under this subsection. | 9 | | (8) The Department of State Police shall allow a | 10 | | person to use the access and review process, established | 11 | | in the Department of State Police, for verifying that his | 12 | | or her records relating to Minor Cannabis Offenses of the | 13 | | Cannabis Control Act eligible under this Section have been | 14 | | expunged. | 15 | | (9) No conviction vacated pursuant to this Section | 16 | | shall serve as the basis for damages for time unjustly | 17 | | served as provided in the Court of Claims Act. | 18 | | (10) Effect of Expungement. A person's right to | 19 | | expunge an expungeable offense shall not be limited under | 20 | | this Section. The effect of an order of expungement shall | 21 | | be to restore the person to the status he or she occupied | 22 | | before the arrest, charge, or conviction. | 23 | | (11) Information. The Department of State Police shall | 24 | | post general information on its website about the | 25 | | expungement process described in this subsection (i). | 26 | | (j) Felony Prostitution Convictions. |
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| 1 | | (1) Expungement of felony prostitution convictions. | 2 | | (A) The Illinois State Police and all law | 3 | | enforcement agencies within the State shall | 4 | | automatically expunge all criminal history records of | 5 | | a conviction for felony prostitution committed prior | 6 | | to the effective date of this amendatory Act of the | 7 | | 102nd General Assembly. | 8 | | (B) Records shall be expunged pursuant to the | 9 | | procedures set forth in subdivision (d)(9)(A) under | 10 | | the following timelines: | 11 | | (i) Records created prior to the effective | 12 | | date of this amendatory Act of the 102nd General | 13 | | Assembly, but on or after January 1, 2013, shall | 14 | | be automatically expunged prior to January 1, | 15 | | 2022. | 16 | | (ii) Records created prior to January 1, 2013, | 17 | | but after, but on or after January 1, 200l, shall | 18 | | be automatically expunged prior to January 1, | 19 | | 2023. | 20 | | (iii) Records created prior to January 1, 2000 | 21 | | shall be automatically expunged prior to January | 22 | | 1, 2024. | 23 | | (C) Nothing in this subsection (j) shall be | 24 | | construed to restrict or modify an individual's right | 25 | | to have that individual's records expunged, except as | 26 | | otherwise may be provided in this Act, or diminish or |
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| 1 | | abrogate any rights or remedies otherwise available to | 2 | | the individual. | 3 | | (2) Any individual may file a motion to vacate and | 4 | | expunge a conviction for a prior Class 4 felony violation | 5 | | of prostitution. Motions to vacate and expunge under this | 6 | | subsection (j) may be filed with the circuit court, Chief | 7 | | Judge of a judicial circuit, or any judge of the circuit | 8 | | designated by the Chief Judge. When considering the motion | 9 | | to vacate and expunge, a court shall consider the | 10 | | following: | 11 | | (A) the reasons to retain the records provided by | 12 | | law enforcement; | 13 | | (B) the petitioner's age; | 14 | | (C) the petitioner's age at the time of offense; | 15 | | and | 16 | | (D) the time since the conviction, and the | 17 | | specific adverse consequences if denied. An individual | 18 | | may file the petition after the completion of any | 19 | | sentence or condition imposed by the conviction. | 20 | | Within 60 days of the filing of the motion, a State's | 21 | | Attorney may file an objection to the petition along | 22 | | with supporting evidence. If a motion to vacate and | 23 | | expunge is granted, the records shall be expunged in | 24 | | accordance with subparagraph (d)(9)(A) of this | 25 | | Section. An agency providing civil legal aid, as | 26 | | defined in Section 15 of the Public Interest Attorney |
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| 1 | | Assistance Act, assisting individuals seeking to file | 2 | | a motion to vacate and expunge under this subsection | 3 | | may file motions to vacate and expunge with the Chief | 4 | | Judge of a judicial circuit or any judge of the circuit | 5 | | designated by the Chief Judge, and the motion may | 6 | | include more than one individual. | 7 | | (3) Any State's Attorney may file a motion to vacate | 8 | | and expunge a conviction for a Class 4 felony violation of | 9 | | prostitution. Motions to vacate and expunge under this | 10 | | subsection (j) may be filed with the circuit court, Chief | 11 | | Judge of a judicial circuit, or any judge of the circuit | 12 | | court designated by the Chief Judge, and may include more | 13 | | than one individual. When considering the motion to vacate | 14 | | and expunge, a court shall consider the following reasons: | 15 | | (A) the reasons to retain the records provided by | 16 | | law enforcement; | 17 | | (B) the petitioner's age; | 18 | | (C) the petitioner's age at the time of offense; | 19 | | (D) the time since the conviction; and | 20 | | (E) the specific adverse consequences if denied. | 21 | | If the State's Attorney files a motion to vacate and | 22 | | expunge records for felony prostitution convictions | 23 | | pursuant to this Section, the State's Attorney shall | 24 | | notify the Prisoner Review Board within 30 days of the | 25 | | filing. If a motion to vacate and expunge is granted, the | 26 | | records shall be expunged in accordance with subparagraph |
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| 1 | | (d)(9)(A) of this Section. | 2 | | (4) In the public interest, the State's Attorney of a | 3 | | county has standing to file motions to vacate and expunge | 4 | | pursuant to this Section in the circuit court with | 5 | | jurisdiction over the underlying conviction. | 6 | | (5) The Illinois State Police shall allow a person to | 7 | | a use the access and review process, established in the | 8 | | Illinois State Police, for verifying that his or her | 9 | | records relating to felony prostitution eligible under | 10 | | this Section have been expunged. | 11 | | (6) No conviction vacated pursuant to this Section | 12 | | shall serve as the basis for damages for time unjustly | 13 | | served as provided in the Court of Claims Act. | 14 | | (7) Effect of Expungement. A person's right to expunge | 15 | | an expungeable offense shall not be limited under this | 16 | | Section. The effect of an order of expungement shall be to | 17 | | restore the person to the status he or she occupied before | 18 | | the arrest, charge, or conviction. | 19 | | (8) Information. The Illinois State Police shall post | 20 | | general information on its website about the expungement | 21 | | process described in this subsection (j). | 22 | | (Source: P.A. 100-201, eff. 8-18-17; 100-282, eff. 1-1-18; | 23 | | 100-284, eff. 8-24-17; 100-287, eff. 8-24-17; 100-692, eff. | 24 | | 8-3-18; 100-759, eff. 1-1-19; 100-776, eff. 8-10-18; 100-863, | 25 | | eff. 8-14-18; 101-27, eff. 6-25-19; 101-81, eff. 7-12-19; | 26 | | 101-159, eff. 1-1-20; 101-306, eff. 8-9-19; 101-593, eff. |
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| 1 | | 12-4-19; 101-645, eff. 6-26-20; revised 8-18-20.)
| 2 | | Section 10. The Code of Criminal Procedure of 1963 is | 3 | | amended by changing Section 122-1 as follows:
| 4 | | (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
| 5 | | Sec. 122-1. Petition in the trial court.
| 6 | | (a) Any person imprisoned in the penitentiary or otherwise | 7 | | confined, or subject to being confined by the State, local, or | 8 | | federal government as a result of a State criminal conviction, | 9 | | may institute a proceeding under this Article if the person | 10 | | asserts that: | 11 | | (1) in the
proceedings which resulted in his or her | 12 | | conviction there was a substantial
denial of his or her | 13 | | rights under the Constitution of the United States or
of | 14 | | the State of Illinois or both;
| 15 | | (2) the death penalty was imposed and there is
newly | 16 | | discovered evidence not available to the person at
the | 17 | | time of the proceeding that resulted in his or her
| 18 | | conviction that establishes a substantial basis to believe | 19 | | that the defendant
is actually innocent by clear and | 20 | | convincing evidence; or
| 21 | | (3) (blank). | 22 | | (a-5) A proceeding under paragraph (2) of subsection (a)
| 23 | | may be commenced within a reasonable period of time after the | 24 | | person's
conviction
notwithstanding any other provisions of
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| 1 | | this Article. In such a proceeding regarding
actual innocence, | 2 | | if the court determines the petition is
frivolous or is | 3 | | patently without merit, it shall dismiss the
petition in a | 4 | | written order, specifying the findings of fact
and conclusions | 5 | | of law it made in reaching its decision.
Such order of | 6 | | dismissal is a final judgment and shall be
served upon the | 7 | | petitioner by certified mail within 10 days
of its entry.
| 8 | | (b) The proceeding shall be commenced by filing with the | 9 | | clerk of the court
in which the conviction took place a | 10 | | petition (together with a copy thereof)
verified by affidavit. | 11 | | Petitioner shall also serve another copy upon the
State's | 12 | | Attorney by any of the methods provided in Rule 7 of the | 13 | | Supreme
Court. The clerk shall docket the petition for | 14 | | consideration by the court
pursuant to Section 122-2.1 upon | 15 | | his or her receipt thereof and bring the same
promptly to the | 16 | | attention of the court.
| 17 | | (c) Except as otherwise provided in subsection (a-5), if
| 18 | | the petitioner is under sentence of death and a petition for | 19 | | writ of certiorari is filed,
no proceedings under this Article | 20 | | shall be commenced more than 6 months after
the conclusion of | 21 | | proceedings in the United States Supreme Court, unless the | 22 | | petitioner alleges facts showing that the delay
was
not due to | 23 | | his or her culpable negligence. If a petition for certiorari | 24 | | is not filed, no proceedings under this Article shall be | 25 | | commenced more than 6 months from the date for filing a | 26 | | certiorari petition, unless the petitioner alleges facts |
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| 1 | | showing that the delay was not due to his or her culpable | 2 | | negligence.
| 3 | | When a defendant has a sentence other than death, no | 4 | | proceedings under this
Article shall be commenced more than 6 | 5 | | months after the conclusion of proceedings in the United | 6 | | States Supreme Court, unless the petitioner
alleges facts | 7 | | showing that the delay was not due to his or her culpable
| 8 | | negligence.
If a petition for certiorari is not filed, no | 9 | | proceedings under this Article shall be commenced more than 6 | 10 | | months from the date for filing a certiorari petition, unless | 11 | | the petitioner alleges facts showing that the delay was not | 12 | | due to his or her culpable negligence. If a defendant does not | 13 | | file a direct appeal, the post-conviction petition shall be | 14 | | filed no later than 3 years from the date of conviction, unless | 15 | | the petitioner alleges facts showing that the delay was not | 16 | | due to his or her culpable negligence.
| 17 | | This limitation does not apply to a petition advancing a | 18 | | claim of actual
innocence. | 19 | | (d) A person seeking relief by filing a petition under | 20 | | this Section must
specify in the petition or its heading that | 21 | | it is filed under this Section.
A trial court that has received | 22 | | a petition complaining of a conviction or
sentence that fails | 23 | | to specify in the petition or its heading that it is
filed | 24 | | under this Section need not evaluate the petition to determine
| 25 | | whether it could otherwise have stated some grounds for relief | 26 | | under
this Article.
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| 1 | | (e) A proceeding under this Article may not be commenced | 2 | | on behalf of a
defendant who has been sentenced to death | 3 | | without the written consent of the
defendant, unless the | 4 | | defendant, because of a mental or physical condition, is
| 5 | | incapable of asserting his or her own claim.
| 6 | | (f) Only one petition may be filed by a petitioner under | 7 | | this Article
without leave of the court.
Leave of court may be | 8 | | granted only if a petitioner demonstrates
cause for his or her | 9 | | failure to bring the claim in his or her initial
| 10 | | post-conviction proceedings and prejudice results from that | 11 | | failure. For
purposes
of this subsection (f): (1) a prisoner | 12 | | shows cause by identifying an objective
factor that impeded | 13 | | his or her ability to raise a specific claim during his or
her | 14 | | initial post-conviction proceedings; and (2) a prisoner shows | 15 | | prejudice by
demonstrating that the claim not raised during | 16 | | his or her initial
post-conviction proceedings so infected the | 17 | | trial that the resulting conviction
or
sentence violated due | 18 | | process.
| 19 | | (Source: P.A. 100-574, eff. 6-1-18; 101-411, eff. 8-16-19.)
| 20 | | Section 99. Effective date. This Act takes effect upon | 21 | | becoming law.
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