post

Other Remedies For Criminal Records

clock time for new start clemency conceptIf you have been convicted of a crime of violence (misdemeanor or felony), a non-sealable felony (violent or non-violent offense), a DUI or reckless- driving offense, you are limited in what you can do to remove this information from the public record.

Most of the remedies detailed below, with the exception of executive clemency, do not remove your conviction from the public record. However, they can be helpful in showing a prospective employer or licensing board that you have been rehabilitated since committing the crime.

Executive Clemency

Under the Illinois Constitution, the governor has the authority to pardon someone who has been convicted of a crime by granting clemency. When petitioning for clemency, one can also request permission to have the criminal record expunged. If expungement is then granted by a judge, however, the record of the conviction is not removed from the Illinois State Police database, but access to it is restricted.

In Illinois, if you want to obtain clemency from the governor you must first submit a petition for clemency with the Illinois Prisoner Review Board (PRB). Anyone has the right to request clemency as long as PRB procedural requirements are met, including filing deadlines and providing all required information in the petition.

The petition must include detailed information about the crime for which you are seeking clemency, a summary of your criminal history (other than the crime for which you are seeking clemency), a personal-history statement, why you are seeking clemency and why you believe you should be granted clemency.

The PRB accepts petitions for clemency four times a year and holds public hearings for persons who wish to appear before the board to personally argue their cases for clemency and/or have character witnesses speak on their behalf. Appearing before the PRB is optional, but filing the petition is mandatory.

The PRB then submits a confidential recommendation to the governor, either supporting or opposing your request for clemency. The recommendation is never made public.

Currently, it can take three to four years from the date the petition is filed to receive a decision from the governor. Although the process is lengthy, it is the only way someone who has been convicted of a non-sealable felony, a non-sealable violent misdemeanor or a DUI offense can restrict access to their conviction record from the public.

During Governor Pat Quinn’s tenure, which ended in January 2015, 4,928 petitions for clemency were ruled on — the most of any sitting Illinois governor.  All told, 1,795 petitions for clemency (36%) were granted. This figure represents individuals who were represented by legal counsel and those who were not. Governor Quinn granted more petitions for clemency than any other governor currently in place.

Since 2015, when Governor Bruce Rauner came into office, obtaining clemency has become infinitely more difficult. At the beginning of 2017, two years into his four-year term, Governor Rauner has ruled on 2,190 petitions, granting only 79.

Certificate of Relief from Disabilities

This certificate was created to help individuals who have felony convictions and want to work in fields that require them to obtain occupational or professional business licenses (e.g., barber, real estate broker, CPA) from the Illinois Department of Financial and Professional Regulation (IDFPR).

The certificate covers only a fraction of the more than 200 occupational and professional licenses issued by the IDFPR. The following licensing laws are covered by the certificate:

  • Barber, Cosmetology, Esthetics, Hair Braiding and Nail Technology Act
  • Dietetic and Nutrition Services Practices Act
  • Real Estate License Act
  • Marriage and Family Therapy Licensing Act
  • Professional Counselor and Clinical Professional
  • Counselor Licensing Act
  • Illinois Public Accounting Act
  • Illinois Athletic Trainers Practice Act
  • Funeral Directors and Embalmers Licensing Code
  • Boiler and Pressure Vessel Repairer Regulation Act
  • Professional Boxing Act
  • Illinois Certified Shorthand Reporters Act
  • Illinois Farm Labor Contractor Certification Act
  • Interior Design Title Act
  • Illinois Professional Land Surveyor Act
  • Illinois Landscape Architecture Act
  • Illinois Roofing Industry Licensing Act
  • Professional Engineering Practice Act
  • Water Well and Pump Installation Contractors License Act
  • Electrologist Licensing Act
  • Auction License Act
  • Illinois Architecture Practice Act
  • Environmental Health Practitioner Licensing Act
  • Land Sales Registration Act
  • Professional Geologist Licensing Act
  • Structural Engineering Practices Act

Obtaining this certificate is not a guarantee that the IDFPR will grant you a professional or occupational license. However, submitting this certificate along with your license application will be helpful support.

Individuals who have been convicted of aggravated DUI, domestic battery, arson and kidnapping (aggravated and non-aggravated), and any conviction requiring registration as a sex offender, are not eligible to apply for this certificate. There are waiting periods, depending on whether your underlying offense is a felony or a misdemeanor.

As with petitions to expunge and seal, a judge exercises sole discretion as to whether to grant you a certificate. Because the certificate is proof of your rehabilitation, a hearing is always held, at which evidence is presented for and against your petition.

Certificate of Good Conduct

The same eligibility guidelines and procedures, outlined above, apply to obtaining a Certificate of Good Conduct as to obtaining a Certificate of Relief from Disabilities.

The primary benefit of obtaining a Certificate of Good Conduct is that it can set aside most statutory barriers to employment based on someone having conviction record. For example, an Illinois school district is prohibited from hiring individuals who have been convicted of certain drug offenses. However, if the individual obtains a Certificate of Good Conduct, expressly waiving this barrier, a school district would be able to hire him or her without violating state law. That said the decision to hire still rests with the employer.

Aside from setting aside statutory barriers to employment, there is anecdotal evidence that a Certificate of Good Conduct may be helpful in assisting someone who is applying for a professional or occupational license or certificate (from a licensing authority other than the IDFPR) that he/she otherwise would be ineligible to receive based on state law exclusions for certain criminal offenses.

Because a Certificate of Good Conduct is still a relatively new remedy, only a handful of employers are aware of its benefits. You may need the assistance of an attorney to help educate an employer about the legal benefits of having a Certificate of Good Conduct.

Health Care Worker Waiver

If you want to work in health care (e.g., hospital, nursing home, rehab center) and have certain felony or misdemeanor convictions on your record, you must apply for and obtain a Health Care Worker Waiver from the Illinois Department of Public Health (IDPH). On its website, the IDPH maintains a Health Care Worker Registry that informs employers, as well as the public, if someone is eligible to work in health care.

Prior to 2017, the registry specified whether an individual had a Health Care Worker Waiver, thus tipping off a prospective employer that a job applicant had a criminal history. In 2016, the Illinois General Assembly amended the law to omit this information from the registry. Now, the Health Care Worker Registry only notifies the public whether a person is eligible to work in health care. The registry no longer discloses who has received a waiver.

A Health Care Worker Waiver applies to any employee whose job provides access to patients; the waiver is not limited to employees whose job entails direct patient care (e.g., CNA, LPN).

A health care provider cannot hire someone who has a waiveable conviction history and has not applied for and received a Health Care Worker Waiver. Even if someone has been granted a license from the Illinois Department of Financial and Professional Regulation, if that individual is later convicted of a crime covered by the Health Care Worker Waiver, the applicant will have to obtain a waiver as a precondition for being hired by a health care provider.

In addition, a health care provider cannot hire someone who has been convicted of a non-waiveable felony offense (e.g., armed robbery, criminal abuse of an elderly or disabled person, child pornography) unless the applicants have been granted clemency by the governor for those crimes.

While a Health Care Worker Waiver ordinarily is not difficult to obtain for past criminal history, the IDPH is much less tolerant when the criminal conduct is recent. Especially, when the person applying for the waiver is currently employed in health care.

The IDPH tends to deny waiver requests from individuals who were working in health care at the time of their arrest and subsequent conviction.