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.


LRB095 04113 RLC 24151 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB0049 LRB095 04113 RLC 24151 b

1     AN ACT concerning criminal records.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 1. Short title. This Act may be cited as the Second
5 Chance Act.
 
6     Section 5. Principle, purpose, and goals. The General
7 Assembly hereby codifies the promise that Illinois, like the
8 nation at large, is the land of the second chance and the
9 principle that every person has the potential to turn his or
10 her life around after having run afoul of the law and to become
11 a law abiding member of the community with the full array of
12 rights and responsibilities of citizenship.
13     The chief goal of this Act is to reduce crime and
14 recidivism and thereby promote the safety of Illinois
15 communities. To accomplish this goal, people with criminal
16 records need to become fully engaged in assuming the
17 responsibilities of family, community, and citizenship, and to
18 be able to work. Employment is the first and most critical step
19 in assuming personal responsibility for one's self and one's
20 family and for becoming a tax payor contributing to society at
21 large. Because criminal records impose barriers to assuming and
22 exercising these responsibilities, rights, and privileges,
23 this Act aims to provide relief from those criminal records. It

 

 

SB0049 - 2 - LRB095 04113 RLC 24151 b

1 also aims to give those with criminal records an incentive to
2 stay on the straight and narrow because this Act will provide
3 them with a second chance a chance to be released from the
4 stigma of a criminal record if they can demonstrate they have
5 turned from crime to responsibility. This Act is intended to
6 provide those who have paid their debt to society the
7 opportunity to return to their communities as productive,
8 competent, and healthy citizens with all the responsibilities,
9 rights, and privileges that such citizenship conveys.
 
10     Section 10. Second Chance Commissions.
11     (a) Creation. Five Second Chance Commissions, one for each
12 of the 5 Illinois judicial districts, shall be created to
13 review applications for relief under this Act and to determine
14 what, if any, relief is to be granted the petitioner.
15     (b) Composition. Each Commission's members shall be
16 appointed by the presiding appellate judge of the judicial
17 district and include the following from within that judicial
18 district: the presiding appellate judge, or his or her
19 designee; a State's Attorney, or his or her designee; a chief
20 of police or sheriff, or his or her designee; a public
21 defender, which may include the State Appellate Defender, or
22 his or her designee; and an individual working with a faith
23 based or community based organization that helps former
24 prisoners make the transition back into the community. The
25 presiding appellate judge shall also appoint no less than 5

 

 

SB0049 - 3 - LRB095 04113 RLC 24151 b

1 alternate Commissioners representing the 5 institutions
2 described in this subsection (b) to deliberate in instances
3 where Commissioners are absent or have a conflict of interest.
4 In judicial districts with a population of more than 2,800,000,
5 the presiding appellate judge may appoint as many additional
6 permanent commissioners as the workload warrants, so long as
7 each commission that deliberates a petition is composed of 5
8 individuals representing the 5 institutions described in this
9 subsection (b).
10     (c) Recusal and removal. A Commissioner shall recuse
11 himself or herself from deliberating on any petition if he or
12 she has a personal or financial or any other interest in the
13 matter. The presiding appellate judge shall have the power to
14 recuse any Commissioner from deliberations on a petition in
15 which the judge ascertains the individual has an interest. The
16 presiding appellate judge has the authority to remove
17 Commissioners for cause, including misconduct or repeated
18 absences.
19     (d) Duties. Each Commission shall deliberate petitions for
20 relief as set forth in this Act and decide such petitions by a
21 majority vote of the 5 Commissioners or their alternates.
 
22     Section 15. Forms of relief. Notwithstanding any other
23 provision of law to the contrary and cumulative with any rights
24 to pardon, expungement, sealing of criminal records, and
25 obtaining other forms of relief from disabilities,

 

 

SB0049 - 4 - LRB095 04113 RLC 24151 b

1 forfeitures, and bars imposed by law consequent to criminal
2 convictions, any person who has no charges pending against him
3 or her and who has a criminal record, whether the person was
4 convicted or the matter or matters were otherwise disposed of,
5 may petition for, and may be granted by the Commission, such
6 relief from the consequences that criminal records impose as
7 follows:
8         (1) Expungement of records. The expungement of a record
9     is its complete destruction by government and private
10     agencies and the erasure of all indicia, including court
11     indexes, that it ever existed. The entirety of an
12     individual's criminal record may be expunged or only such
13     parts as the Commission may determine are consistent with
14     the principle, purpose, and goals of this Act.
15             (A) Legal effect of expungement. When a criminal
16         record is expunged, the legal effect is (i) the
17         complete and permanent extinguishment of all
18         disabilities, forfeitures, and bars imposed by law or
19         practice that would otherwise be consequent to the
20         record, and (ii) that the record does not exist and the
21         acts giving rise to the conviction did not occur. When
22         a person has his or her record expunged, he or she may
23         deny or answer no, even under penalty of perjury, to
24         any question concerning that existence of the expunged
25         record and the acts giving rise to it.
26             (B) Penalties. Maintaining, revealing, or

 

 

SB0049 - 5 - LRB095 04113 RLC 24151 b

1         otherwise using in any manner, regardless of intent, an
2         expunged record for any purpose gives an aggrieved
3         party, including but not limited to the party named in
4         the expunged records, a private right of action under
5         this Act, and the court, in its discretion, may impose,
6         in addition to injunctive relief and actual damages,
7         statutory damages of no more than $10,000, and award
8         attorney's fees to the plaintiff.
9         (2) Sealing of records. The sealing of a record is the
10     full or partial, temporary or permanent, removal of the
11     record, including index references to it, from such public
12     or private views and uses as the Commission determines are
13     consistent with the principle, purpose, and goals of this
14     Act. The Commission may seal some or all parts of a record;
15     it may seal the record on a temporary basis until such
16     conditions imposed on the applicant are fulfilled; it may
17     seal the record permanently, but subject it to reopening
18     upon either subsequent arrest or conviction; it may seal it
19     and bar its view and use by all parties, or only by named
20     entities, including but not limited to law enforcement and
21     entities required to conduct background checks.
22             (A) Legal effect. If a record is fully sealed as to
23         all parties and uses, the legal effect is the same as
24         an expungement except that the record may be reopened
25         and used in such a manner as the Commission shall
26         direct in its final order on the petition. If a record

 

 

SB0049 - 6 - LRB095 04113 RLC 24151 b

1         is partially sealed and closed to all parties and uses,
2         the legal effect of such offenses as are sealed is the
3         same as an expungement of those offenses, subject to
4         any conditions imposed by the Commission. If a record
5         is fully or partially, but temporarily, sealed subject
6         to conditions imposed by the Commission being
7         fulfilled by the petitioner, during the period of the
8         sealing the legal effect is the same as an expungement.
9         If the conditions are not fulfilled, the record is
10         reopened. If a record is sealed only as to certain
11         parties or certain purposes, the legal effect as to
12         those parties and purposes is the same as an
13         expungement.
14             (B) Penalties. Maintaining, revealing, or
15         otherwise using in any manner, regardless of intent, a
16         sealed record by any person or entity not authorized by
17         the terms of the order to view, maintain, or use the
18         record and for any purpose beyond the scope of the
19         order gives an aggrieved party, including but not
20         limited to the party named in the expunged records, a
21         private right of action under this Act, and the court,
22         in its discretion, may impose, in addition to
23         injunctive relief and actual damages, statutory
24         damages of no more than $10,000, and award attorney's
25         fees to the plaintiff.
26         (3) Waiver. A waiver is a determination by the

 

 

SB0049 - 7 - LRB095 04113 RLC 24151 b

1     Commission that allows a person, otherwise barred by law
2     from employment, a license, benefit, or any other right or
3     privilege, to establish that lifting that bar is consistent
4     with the principle, purpose, and goals of this Act.
5     Notwithstanding any law to the contrary, the Commission may
6     waive any disabilities imposed by law and provide such
7     relief to fulfill the purposes of this Act. A waiver may
8     cover as many disabilities as the Commission may determine
9     are consistent with this Act.
10             (A) Legal effect of waiver. The waiver has the
11         effect of lifting the disabilities consequent to the
12         individual's criminal record otherwise imposed by law
13         that are identified in the Commission's order.
14             (B) Penalties. If a person or entity does an act or
15         refuses to do an act on the basis of a criminal record
16         when the disability has been waived, the person with
17         the waiver has a private right of action under this
18         Act, and the court, in its discretion, may impose, in
19         addition to injunctive relief and actual damages,
20         statutory damages of no more than $10,000, and award
21         attorney's fees to the plaintiff. This paragraph
22         imposes no affirmative obligations on any person or
23         entity to grant employment, a license, benefit, or any
24         other right or privilege.
25         (4) Certificate of good conduct. A certificate of good
26     conduct is a statement provided by the Commission that the

 

 

SB0049 - 8 - LRB095 04113 RLC 24151 b

1     petitioner has proven such good conduct as set forth in the
2     certificate to the satisfaction of the Commission. A
3     certificate of good conduct has no legal effect and imposes
4     no duties on third parties. The Commission shall issue
5     certificates of good conduct such as are consistent with
6     the principle, purpose, and goals of this Act and set forth
7     its findings as to the good conduct of the applicant on the
8     certificate.
 
9     Section 20. Criteria for relief. The petitioner shall
10 address and, on the deliberations and determinations on each
11 petition before the Commission, the Commission shall consider
12 the following criteria for relief:
13         (1) the principle, purpose, and goals of this Act as
14     applied to the petitioner;
15         (2) public safety, based on the nature and seriousness
16     of the crime or crimes in the record and the evidence of
17     rehabilitation of the petitioner;
18         (3) the number of offenses in the record and the
19     disposition and penalties imposed for each;
20         (4) the age of the individual when the crime or crimes
21     were committed;
22         (5) the circumstances surrounding the crime or crimes;
23         (6) the nature and severity of the harm to others as a
24     consequence of the crime or crimes, and the extent to which
25     the petitioner has acknowledged that harm by making efforts

 

 

SB0049 - 9 - LRB095 04113 RLC 24151 b

1     at restitution and shown contrition toward the victims, if
2     any, of the crime or crimes;
3         (7) the length of time since the last conviction;
4         (8) the nature of the conditions of probation and
5     parole and whether they were fulfilled;
6         (9) rehabilitative efforts relevant to the offenses
7     and circumstances of the petitioner's life such as alcohol
8     or substance abuse treatment; mental health treatment;
9     anger management; education; job readiness and skills
10     training; parenting training; and participation in
11     community or faith based services or programs, the results
12     of such efforts, and the references of program staff;
13         (10) the facts and circumstances, if any, that led the
14     petitioner to make a choice to engage in no further
15     criminal conduct;
16         (11) the petitioner's work history, both paid and
17     voluntary, and references of employers;
18         (12) character references; and
19         (13) any other evidence the petitioner may present
20     concerning his or her rehabilitation and commitment to
21     refrain from criminal activity.
 
22     Section 25. Notice of eligibility for relief. Upon the
23 final disposition of a criminal case, such as acquittal,
24 release without conviction, being placed on supervision, or
25 conviction of a sealable offense, the defendant shall be

 

 

SB0049 - 10 - LRB095 04113 RLC 24151 b

1 informed by the court of the right to petition for any of the 4
2 forms of relief under this Act. Upon release from a
3 correctional facility, State or local, the individual shall
4 again be informed of the right to petition for any of the 4
5 forms of relief under this Act. The notice shall be in writing
6 and shall include the address of the Commission in the district
7 where the incident arose.
 
8     Section 30. Guidelines. A Commission may establish
9 guidelines for the 4 kinds of relief for purposes of putting
10 petitioners on notice of what kind of relief, under what
11 circumstances, is likely to be granted. The guidelines may not,
12 however, be used to bar from full consideration petitions that
13 ask for relief that is inconsistent with the guidelines. Every
14 petition must be considered under the principle, purpose, and
15 goals of this Act on its own merits.
 
16     Section 35. Contents of petition. The petition seeking
17 relief may be submitted to the Commission in such a form and
18 manner as the petitioner chooses, or the Commission may
19 prescribe the use of a form it has prepared for these purposes,
20 in which case the petitioner shall use that form. In either
21 case, the petition shall be verified and contain the
22 petitioner's name, all aliases, date of birth, current address,
23 each charge, and for each charge: the case number, the date of
24 the charge, the identity of the arresting authority, the

 

 

SB0049 - 11 - LRB095 04113 RLC 24151 b

1 disposition and sentence, if any, and such other and further
2 information as the Commission may require. It shall also
3 provide evidence of entitlement to relief based on the criteria
4 for relief set forth in Section 20 of this Act. The petitioner
5 may include references, statements of third parties, copies of
6 certificates, diplomas, academic transcripts, and such other
7 documents as may be relevant to the Commissioner's
8 deliberations. The petitioner may request a particular kind of
9 relief, and state why that form of relief is sought, but the
10 Commission is not bound by the scope of relief requested in the
11 petition and may narrow or enlarge it in a manner consistent
12 with the principle, purpose, and goals of this Act. During the
13 pendency of the petition, the petitioner shall promptly notify
14 the clerk of the court of any change of address. The petitioner
15 may also request to appear before the Commission for an
16 interview; however, the Commission is not required to grant the
17 request before acting on the petition.
 
18     Section 40. Fee. The fee for filing a petition shall be $75
19 and shall be paid at the time of filing the petition.
 
20     Section 45. Procedure.
21     (a) Filing. The person seeking relief under this Act shall
22 file the petition described in Section 35 of this Act along
23 with the fee with the Commission in the judicial district where
24 his or her last criminal offense took place. Petitions may be

 

 

SB0049 - 12 - LRB095 04113 RLC 24151 b

1 filed in person or by mail.
2     (b) Service on law enforcement agencies. The Commission
3 shall promptly provide a copy of the petition to each State's
4 Attorney or prosecutor charged with the duty of prosecuting the
5 offense or offenses from which the petitioner seeks relief, the
6 Department of State Police, the arresting agency or agencies,
7 and the chief legal officers of each unit of local government
8 effecting the arrest or arrests. Unless an objection is filed
9 with the Commission from one or more of these agencies within
10 90 days of notice of the petition, the Commission shall proceed
11 to act on the petition.
12     (c) Hearing upon objection. If an objection is filed, the
13 Commission shall set a date for a hearing no more than 30 days
14 from the date the objection was filed and notify the petitioner
15 and the party or parties that objected to the relief being
16 sought, and shall hear evidence on whether the relief requested
17 or any other relief under this Act should or should not be
18 granted.
19     (d) Timing of deliberations. The Commission shall take
20 initial action on the petition within 120 days of its receipt.
21 Within that 120 day period, whether objections have been filed
22 or not, the Commission must either (1) make a determination
23 based on the face of the petition and what materials, if any,
24 are submitted with it, and upon the facts adduced at the
25 hearing, if a hearing was held, (2) make a request for further
26 information from the petitioner, or (3) schedule an interview

 

 

SB0049 - 13 - LRB095 04113 RLC 24151 b

1 with the petitioner, and with third parties, with or without a
2 request for further information. The petitioner shall be given
3 30 days to submit the additional requested information. If
4 further information requested of the petitioner cannot be
5 obtained in 30 days, the petitioner shall request an extension
6 of time, which shall not be unreasonably withheld. The
7 Commission, in the case of a hearing, an interview, or its
8 request for additional information, shall make is
9 determination on the petition within 30 days of the hearing,
10 interview or the receipt of additional information, and if more
11 than one apply, whichever is later in time.
 
12     Section 50. Order. The deliberations of the Commission
13 shall be final with the issuance of an order that sets forth
14 findings of fact and conclusions based on the principle,
15 purpose, and goals of this Act. The order must address the
16 community's concern for public safety and demonstrate how the
17 Commission concluded the individual had been rehabilitated
18 based on the criteria set forth in Section 20 of this Act. The
19 Commission may deny all forms of relief, or grant any such
20 relief as is authorized in Section 15 of this Act, and may set
21 such terms and conditions on the relief as are consistent with
22 the principle, purpose, and goals of this Act. Such conditions
23 may include, but are not limited to, periodic drug testing and
24 good faith participation in designated programs.
25     The effective date of the order may also be delayed until

 

 

SB0049 - 14 - LRB095 04113 RLC 24151 b

1 the required conditions are fulfilled.
 
2     Section 55. Service of order. The Commission shall provide
3 copies of the order to such parties as are necessary to
4 accomplish its purposes, including the petitioner, the clerk of
5 the court or courts where the records may be found, the
6 Department of State Police, in a form and manner prescribed by
7 the Department, the State's Attorney or prosecutor charged with
8 the duty of prosecuting the offense, the arresting agency, the
9 chief legal officer of the unit of local government effecting
10 the arrest, and such other civil and criminal justice agencies
11 as may be necessary to provide the relief granted. If a record
12 is ordered sealed or expunged, all references to the case,
13 including all indexes of the case name, shall be obliterated or
14 otherwise remove from public view.
 
15     Section 60. Effect of subsequent acts. Except where a
16 record has been expunged, subsequent arrests affect the relief
17 granted under a Commission's order only to the extent
18 established in the order itself. The conviction of the
19 petitioner of any crime other than traffic infractions and
20 municipal violations nullifies and rescinds orders of sealing,
21 waivers, and certificates of good conduct.
 
22     Section 65. Reporting. Each Commission shall file an annual
23 report with the Governor and the General Assembly that sets

 

 

SB0049 - 15 - LRB095 04113 RLC 24151 b

1 forth: the number of petitions filed; the number where all
2 forms of relief are denied; and the number of petitions
3 granted, specifying the number of petitions granted by the type
4 of relief granted.