Blueprint For Progress: How Illinois Empowers Rehabilitated People With Criminal Records

8
Blueprint for Progress:

How Illinois Empowers
Rehabilitated People with
Criminal Records
MICHAEL SWEIG
Safer Foundation
Chicago
Enormous thanks are due a cadre of legislators in the 96th Illinois General
Assembly with whom the author worked closely over 13 trips to Springfield, and
who listened patiently with pointed focus to craft and pass Senate Bill 1050,
including: Sponsors Senator Kwame Raoul and Representative Barbara Flynn
Currie; Senate Criminal Law Committee Chair Senator Michael Noland, members
Senator William R. Haine, Senator John J. Millner, Senator Dale Righter, Senator
A.J. Wilhemi, committee counsel Jim Dodge and Mark Warnsing; House
Judiciary II Criminal Law Committee Chair Representative Constance “Connie”
A. Howard, with invaluable late night and early morning weekend hours from
Representative Dennis M. Reboletti, Representative Chapin Rose, and
committee counsel Jay Curtis. Rev. Al Sharp and Walter Boyd of Protestants for
the Common Good were key advocacy partners.
The author also thanks Melissa McClure, M.A. Criminal Justice, Loyola
University, for her assistance in preparation of this chapter.
©COPYRIGHT 2010 BY MICHAEL SWEIG. 8S — 1

ILLINOIS CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF — SUPPLEMENT
I. [8.1] Introduction
II. Illinois’ Approach to Collateral Consequences of Conviction
A. [8.2] Motivation and Foundation for P.A. 96-852

B. [8.3] Social and Fiscal Timeliness
III. [8.4] Expansion of Eligible Offenses and Employer Immunity
A. [8.5] If Not Specifically Excluded, Any Offense Is Eligible

B. [8.6] Employer Immunity
IV. [8.7] Legal Effect of the Certificates Issued Under P.A. 96-852
V. [8.8] The Uniform Model Penal Code Supports the Restoration of Rights
VI. [8.9] Executive Pardon Power
VII. [8.10] The Free Advisory Opinion from the Department of Financial and
Professional Regulation
VIII. [8.11] The Pro Bono Panel
IX. [8.12] Conclusion
X. [8.13] P.A. 96-852
8S — 2 WWW.IICLE.COM
BLUEPRINT FOR PROGRESS: HOW ILLINOIS EMPOWERS REHABILITATED PEOPLE WITH CRIMINAL RECORDS §8.1
I. [8.1] INTRODUCTION
Governor Pat Quinn called Senate Bill 1050, 96th General Assembly (2009), “noble” (Letter
Accompanying Amendatory Veto, S.B. 1050 (Aug. 28, 2009), www.ilga.gov/
legislation/96/sb/pdf/09600sb1050gms.pdf) and, in five key ways, put Illinois in a progressive
class by itself by signing it into law as P.A. 96-852 (eff. Jan. 1, 2010). The full text of the act is
provided in §8.13 below.
First, the new law empowers thousands of previously disenfranchised people with criminal
records, even some with certain violent offenses, to prove in a court of law that they are
rehabilitated for occupational licensing and other substantive employment. The predecessor
statute contained substantial limitations on eligibility, i.e., only nonviolent Class 1 – 4 offenses.
Under P.A. 96-852, even some violent and non-probationable offenses may now be eligible for
relief. The only eligibility limitations are:
a. more than two felonies;
b. any Class X felony;
c. any felony that resulted in “great bodily harm or permanent disability”;
d. conviction for aggravated DUI, drugs, or aggravated domestic battery; and
e. offenses that require post-release registration (e.g., sex offenses, offenses against
children, rape, arson, etc). 730 ILCS 5/5-5.5-5.
NOTE: There is no statutory waiting period or, more aptly, no “rehabilitation” period for a
certificate of relief from disabilities. However for a certificate of good conduct there is a one-year
rehabilitation period for misdemeanors and a three-year rehabilitation period for felony
convictions. 730 ILCS 5/5-5.5-30(c). Practitioners should consider that for clients with non-
expungeable or non-sealable offenses, a certificate of good conduct is an available remedy, but it
does the opposite from expungement or sealing: by its nature a certificate of rehabilitation
broadcasts, rather than hides or eliminates the offense from the client’s record or from public
view. Also, while there is no general federal statutory procedure for post-conviction restoration
of civil rights or expungement of judicial records of an adult federal criminal conviction (see
United States v. Crowell, 374 F.3d 790, 792 (9th Cir. 2004), under P.A. 96-852, the circuit courts
of Illinois have jurisdiction to relieve clients with convictions from “any other jurisdiction,”
which includes other states and federal offenses. 730 ILCS 5/5-5.5-30(b). This portion of the
statute is intended to help people who face a demonstrable licensing or employment obstacle in
Illinois because of conviction elsewhere, which is why an Illinois residency requirement in this
statute is unnecessary. This paragraph is not intended as a smug forum-shoppers dream or
nationwide call for certificate applicants of any sort who happen to have convictions from “any
other jurisdiction.”
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 8S — 3

§8.1 ILLINOIS CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF — SUPPLEMENT
Second, with the most sweeping protection of any state in America, Illinois is the only state
that gives employers immunity from any future civil or criminal liability arising from employing
a person with a criminal record who has obtained a certificate of rehabilitation. 730 ILCS 5/5-5.5-
15(f), 5/5-5.5-25(c).
Third, when the circuit court finds a person with a criminal record is rehabilitated and
deserves a certificate of good conduct or a certificate of relief from disabilities, the court’s finding
shall have the “force and effect of a final judgment on the merits,” language that upgrades the
former legal status of a certificate from a public letter of reference to a final judgment that means
the certificate holder is rehabilitated, i.e., trustworthy and not dangerous, as a matter of law. 730
ILCS 5/5-5.5-30(a). It means that certificates of rehabilitation can relieve otherwise absolute and
discretionary legislative barriers to occupational licensing and employment that require “good
moral character.” As judgments with the force of law, the circuit court-issued certificates create a
presumption of rehabilitation that should be very difficult to rebut or collaterally attack.
The circuit court’s ability to relieve otherwise statutory absolute bars to licensing or
employment directly addresses one of the most important but too infrequently achieved goals of
our legal system: the use of employment to reduce criminal recidivism. The research and
evidence that employment is the one social policy that reduces recidivism is nearly undeniable.
See Bruce Western, PUNISHMENT AND INEQUALITY IN AMERICA (2006); Maurice
Emsellem, “Smart on Crime” Agenda to Promote Public Safety While Addressing Occupational
Barriers for People with Criminal Records, Congressional Briefing (June 9, 2005),
http://nelp.3cdn.net/7bd6d5a42004c81558_1em6b5ix9.pdf; Jared Bernstein and Ellen Houston,
CRIME AND WORK: WHAT CAN WE LEARN FROM THE LOW-WAGE LABOR
MARKET (2000); Bruce Western and Becky Petit, Incarceration and Racial Inequality in Men’s
Employment, 54 Indus. & Lab.Rel.Rev. 3 (2000); Christopher Uggen, Work as a Turning Point in
the Life Course of Criminals: A Duration Model of Age, Employment, and Recividism, 64
Am.Soc.Rev. 4 (2000); Robert J. Sampson and John H. Laub, CRIME IN THE MAKING:
PATHWAYS AND TURNING POINTS THROUGH LIFE (1993).
License issuers must now disprove rehabilitation or good moral character if they choose to
deny employment to a certificate holder based on a criminal record. All other qualifications being
equal, the holder of a certificate of rehabilitation now stands on as close to the same footing as
possible to an occupational license or employment applicant who has no criminal record.
Fourth, P.A. 96-852 removed the Illinois Prisoner Review Board (PRB) from the process of
hearing rehabilitation petitions. Now, the circuit court that entered a person’s conviction has
exclusive jurisdiction over a petition for a post-sentence certificate of rehabilitation. 730 ILCS
5/5-5.5-30(b). Judicial authority for hearing rehabilitation or restoration of rights cases is the
preferred approach but not the norm. By contrast, for example, the New York State Board of
Parole has exclusive jurisdiction for issuing a certificate of relief from disabilities when the Board
has determined that (a) the applicant is an ex-offender convicted of not more than one felony, (b)
the relief granted is consistent with the rehabilitation of the applicant, and (c) the relief granted is
consistent with the public interest. N.Y. CORRECT. LAW §703(3).
Fifth, upon request by a person with a criminal record, P.A. 96-852 also requires the Illinois
Department of Financial Professional Regulation to provide a free, nonbinding advisory opinion
that informs the prospective applicant whether his or her criminal record is a dispositive obstacle
to occupational licensing before he or she invests in license education and testing. This is a
complete reversal from the Department’s past practice. Previously, a person with a criminal
record was required to obtain the required education, pass exams, and apply for the desired
license before the Department would opine on whether it would nevertheless deny a license
because of the criminal record.
II. ILLINOIS’ APPROACH TO COLLATERAL CONSEQUENCES OF

CONVICTION
A. [8.2] Motivation and Foundation for P.A. 96-852
We are all better than our worst acts. Redemption and reformation of character are core
concepts in the Judeo-Christian tradition, but in practice, they are recognized as valid only outside
of the context of criminal justice and employment. Most people can reform their characters, even
the 65 million people in the United States who have criminal records (with over 700,000 more
returning from prisons annually (Maurice Emsellem, “Smart on Crime” Agenda to Promote
Public Safety While Addressing Occupational Barriers for People with Criminal Records,
Congressional Briefing (June 9, 2005), http://nelp.3cdn.net/
7bd6d5a42004c81558_1em6b5ix9.pdf)). And empirically, the length of time spent without
reoffending is directly related to the reduction of the likelihood of reoffending in the future
(Alfred Blumstein and Kiminori Nakamura, Redemption in the Presence of Widespread Criminal
Background Checks, 47 Criminology 327 (2009)). However, most employers and most laws that
regulate licensing and other substantive employment assume that a person with a criminal record
is always “bad,” and so the infamy of felony dogs most people with criminal records once they
conclude the direct consequence of a criminal conviction, i.e., serving one’s sentence.
PRACTICE POINTER
 “Person with a criminal record” is neutral and more appropriate than terms like “ex-
offender,” “ex-con,” or “felon,” because “person with a criminal record” first literally
acknowledges and dignifies the person and describes one of the person’s many
attributes, i.e., “with a criminal record,” whereas, “ex-offender,” “ex-con,” and
“felon” operate as one-dimensional, societal cattle brands that define the person as
bad rather than a person who committed a bad act.
 “Infamy” is even codified in the Catholic dogma:
It is twofold in species, infamy of law (infamia juris) and infamy of fact

(infamia facti).
Infamy of law is contracted in one of three ways. Either the law itself
attaches this juridical ineligibility and incapacity to the commission of

certain crimes, or makes it contingent upon the decision of a judge, or

finally connects it with the penalty imposed by him. . . .
Infamy of fact is the result of a widespread opinion, by which the

community attributes some unusually serious delinquency, such as
adultery or the like, to a person. This is more of an unfitness than an
irregularity properly so called, unless sentence in court has been
pronounced. It ceases therefore when one has shown by a change of life
extending over a period of two or probably three years that his
repentance is sincere. [Emphasis in original.] Joseph Delany, Infamy, 8
Catholic Encyclopedia (1910), www.newadvent.org/cathen/08001a.htm.
The most difficult consequences come after a person has served his or her sentence, whether
incarceration or probation. These are the “collateral consequences” of conviction. See Kelly Poff
Salzmann and Margaret Colgate Love, INTERNAL EXILE: COLLATERAL CONSEQUENCES
OF CONVICTION IN FEDERAL LAWS AND REGULATIONS (2009),
www.abanet.org/cecs/internalexile.pdf; Jeremy Travis, Invisible Punishment: An Instrument of
Social Exclusion, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF
MASS IMPRISONMENT (Marc Mauer and Meda Chesney-Lind eds., 2002); Nora V.
Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing
Consequences, 11 Stan.L. & Pol’y Rev. 153 (1999); U.S. Department of Justice, Bureau of
Justice Statistics, USE AND MANAGEMENT OF CRIMINAL HISTORY RECORD
INFORMATION: A COMPREHENSIVE REPORT (1993), http://bjs.ojp.usdoj.gov/content/
pub/pdf/umchri01.pdf; Charles J. Hynes, After Release: The Challenge of Successful Reentry, 24
Crim.Just. No. 4 (2010). There are far too many collateral consequences of conviction to quantify
nationally, and historically, there has been little effort to identify or index them. To an extent,
they are more quantifiable on a state-by-state basis, but the work is expensive and not likely to be
done effectively given the fiscal crisis from which most states currently suffer.
PRACTICE POINTER
 The Uniform Collateral Consequences of Conviction Act (UCCCA),
www.law.upenn.edu/bll/archives/ulc/ucsada/2009_final.htm, passed in July 2009 by
the Uniform Law Commission, refers and purports to depend on the National
Institute of Justice to identify and compile every collateral sanction and
disqualification for employment for people with criminal records in all 50 states.
Under the UCCCA, which to date has not been adopted anywhere and has been
introduced only in Wisconsin, this information is to be presented to a convicted
person upon arraignment and completion of sentence (mandated through the Court
Security Improvement Act of 2007, Pub.L. No. 110-177, 121 Stat. 2534 (2008)). This
compilation was to be completed as of January 2009 but to date has not been
documented or completed, leaving the claims and standards of the UCCCA
unfulfilled and its efficacy to be determined. “The Act requires collection in a single
document all of the collateral sanctions and disqualifications contained in state
statutes or administrative regulations. Fortunately, this task has been simplified by a
recent complimentary federal legislation which requires that the Director of the
National Institute of Justice identify collateral sanctions in the constitution, codes and
administrative rules of the 50 states and the territories. Accordingly, the federal
government will do the bulk of the initial work.” [Emphasis in original.] Press
Release, Uniform Law Commission, New Act Addresses Consequences of Criminal
Sentencing (July 15, 2009), www.nccusl.org/nccusl/desktopmodules/
newsdisplay.aspx?itemid=217. Not surprising, a similar Illinois unfunded mandate
exists. See the Task Force on Inventorying Employment Restrictions Act, P.A. 96-
593 (eff. Aug. 18, 2009). Money in Illinois’ state budget to do this sort of work is
simply unavailable in the current economy.
The main problem with collateral consequences of conviction is that they are usually
thoroughly endorsed socially and legally and completely reinforce the “badness” of the person.
They ignore the importance of a change in identity and the healthy sense of self that a person with
a criminal record must have to advance along the continuum of successful reentry and recidivism
avoidance. Christy A. Visher and Jeremy Travis, Transitions from Prison to Community:
Understanding Individual Pathways, 29 Ann.Rev.Soc. 89 (2003); Shadd Maruna, MAKING
GOOD: HOW EX-OFFENDERS REFORM AND RECLAIM THEIR LIVES (2001); Shadd
Maruna and Stephen Farrall, Desistance from Crime: A Theoretical Reformulation, 43 Kölner
Zeitschrift für Soziologie & Sozialpsychologie 171 (2003); Stephen Farrall, On the Existential
Aspects of Desistance from Crime, 28 Symbolic Interaction No. 3, 367 (2005).
For reentry to succeed without recidivism, the post-prison/probation and parole worlds must
support people with criminal records with the basics of life, first among them a decent job,
because with roadblocks to dignified employment, society makes it nearly impossible for people
with criminal records to construct a sense of who they can become. Without proper employment,
people with criminal records have severely depleted means to achieving a stable, productive
future or a sustainable healthy sense of self.
The Preamble to the Illinois Constitution contains meaningful, germane language that bears
directly on the motivations for P.A. 96-852, i.e., to protect the public safety while combating
criminal recidivism by expanding the scope of people with felony convictions who may seek to
prove they are rehabilitated. In return, persons who can prove their rehabilitation receive a court-
ordered entree back into respectable society in the form of a certificate that relieves licensing and
employment bars and disqualifications.
For people with criminal records, the denial of access to employment, education, housing,
and other social and welfare benefits long after completion of their criminal sentence breeds
recidivism. These collateral consequences deprive those who need them most of the means and
opportunities to reestablish themselves as honorable, law-abiding, tax-paying human beings.
Frugan Mouzon, Forgive Us Our Trespasses: The Need for Federal Expungement Legislation, 39
U.Mem.L.Rev. 1 (2008). See also ABA STANDARDS FOR CRIMINAL JUSTICE:
COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATIONS OF
CONVICTED PERSONS (2004), www.abanet.org/crimjust/standards/collateral_toc.html.

P.A. 96-852 expands the class of offenses eligible for proof of rehabilitation because making
occupational licensure and general employment as attainable as possible is not only the right
thing to do, and therefore good and just public policy, but also socially and fiscally timely, as
discussed in §8.3 below.
Consistent with the Uniform Model Penal Code §306.6 and ABA STANDARD FOR
CRIMINAL JUSTICE 19-2.5, P.A. 96-852 also transferred jurisdiction for the restoration of
rights relating to occupational licensure and other employment bars from the Illinois Prisoner
Review Board to the circuit court that entered the applicant’s conviction. 730 ILCS 5/5-5.5-30.
Transfer of the PRB’s partial jurisdiction for rehabilitation proceedings and consolidation of
all such jurisdiction to the circuit court was not the primary intent or purpose of the act.
Expansion of the eligible classes of offenses was the main goal. Importantly, however, this
change reflected the strong anti-PRB sentiment of the General Assembly and was the political
sine qua non for the expansion of offenses eligible for rehabilitation certificates. The unanimously
passed H.B. 1074, 96th General Assembly (2009), and initial Senate version, S.B. 1688, 96th
General Assembly (2009), both contemplated continuation of PRB jurisdiction. The
overwhelming Senate opposition to the PRB and sudden lack of support from past supporters of
H.B. 1074 precipitated the change of jurisdiction to the circuit court.
B. [8.3] Social and Fiscal Timeliness
All states confront the same problem: “[t]he more that convicted persons are restricted by law
from pursuing legitimate occupations, the fewer opportunities they will have for remaining law
abiding.” Antrew Von Hirsch and Martin Wasik, Civil Disqualifications Attending Conviction: A
Suggested Conceptual Framework, 56 Cambridge L.J. 599 (1997). See also Margaret Colgate
Love, Starting Over With a Clean Slate: In Praise of a Forgotten Section of the Model Penal
Code, 30 Fordham Urb.L.J. 101 (2003). In the present dire economic climate, state governments
have begun to question the economic burdens of an unforgiving justice system laden with so
many people with criminal records. See Ryan S. King and Marc Mauer, State Sentencing and
Corrections Policy in an Era of Fiscal Restraint (2002), www.sentencingproject.org/
doc/publications/inc_statesentencingpolicy.pdf.
The “lock ‘em up” law enforcement policy in the 1980s and 1990s created a socioeconomic
subclass of “internal exiles” who are hard pressed to participate or contribute to society. As of
2000, “[a]n estimated 13 million Americans [were] either currently serving a sentence for a
felony conviction or ha[d] been convicted of a felony in the past.” Jeremy Travis, Invisible
Punishment: An Instrument of Social Exclusion, in INVISIBLE PUNISHMENT: THE
COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT (Marc Mauer and Meda
Chesney-Lind eds., 2002). As of December, 2001, it was estimated that over 64 million people in
the United States, 30 percent of the nation’s adult population, have a rap sheet. United States
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Survey of State
Criminal History Information Systems, 2001 (Aug. 2003), http://bjs.ojp.usdoj.gov/index.cfm?ty=
pbdetail&iid=1089.
P.A. 96-852’s focus on economic and public safety benefits is an important step toward
changing the image of people with criminal records from undeserving exiles to deserving and
productive members of society. Given the 20th century’s focus on mass incarceration, P.A. 96-
852 is at least one indication that American lawmakers recognize that the ever-increasing annual
number of people with criminal records entering their communities need the support of society
and its laws to avoid recidivating. This legislative recognition should lead to safer and more
inclusive communities.
P.A. 96-852 strikes an optimal balance between government’s dual role to (1) protect the
public safety and (2) combat recidivism by promoting employment among those who have paid
their dues for criminal behavior and who can prove their rehabilitation based on clear and
convincing evidence.
P.A. 96-852 provides the transparent forum of a court of law, in which all stakeholders — the
convicted, the victims, the state’s attorney on behalf of the people and the court itself — can
conduct the business of restoring rights to the people with criminal records who have the
wherewithal to become responsible and productive members of society through licensing and
employment.
Importantly, the restoration of rights process in the sentencing court, as contemplated by P.A.
96-852 through the circuit court’s issuance of certificates of relief from disabilities (for
occupational licensure) and certificates of good conduct (for general employment bars), in no way
encroaches on the executive pardon power, discussed in §8.9 below.
Finally, P.A. 96-852 heralds no floodgate strain on the circuit courts. The figures supplied by
the Prisoner Review Board and the Illinois Department of Corrections appear to indicate that once
implemented, P.A. 96-852 portends to diffuse a few hundred applicants for rehabilitation
certificates throughout the counties of Illinois annually. Moreover, even if there were a
substantial increase in circuit court caseload from P.A. 96-852, a judicial restoration of rights
framework is the most transparent conceivable process, especially with respect to historic claims
by victims’ rights advocates that the PRB had not adequately given them a voice.
III. [8.4] EXPANSION OF ELIGIBLE OFFENSES AND EMPLOYER

IMMUNITY
The first and second of the five key elements in P.A. 96-852 discussed in §8.1 above are (a)
the expansion of felony offenses that are now eligible for certificates of rehabilitation and (b) the
empowerment of employers to hire people with certificates of rehabilitation by giving employers
full immunity from any potential liability. These elements are discussed in §§8.5 and 8.6 below,
respectively.
A. [8.5] If Not Specifically Excluded, Any Offense Is Eligible
Under the prior statute, only persons with nonviolent Class 1 – 4 felony convictions were
eligible for relief and were subject to a two-felony limitation. P.A. 96-852 preserved the two-

felony limit, but the limitation to nonviolent Class 1 – 4 offenses has been vastly expanded. Now,
subject to the two-felony limitation, any offense not within the following exclusions is eligible for
relief:
1. any Class X felony;
2. any felony that resulted in “great bodily harm or permanent disability”;
3. conviction for aggravated driving under the influence of alcohol or drugs or aggravated
domestic battery; and
4. offenses that require post-release registration (sex offenses, offenses against children,
rape, arson, etc). 730 ILCS 5/5-5.5-5.
These exclusions are straightforward, except perhaps depending on the facts and actual court
disposition for felonies that resulted in “great bodily harm or permanent disability.” (“Permanent
disability” is objective; “great bodily harm” has subjective elements. For purposes of this chapter,
reference is made simply to “great bodily harm.”) In crafting this exclusion, the author, key
members of the Illinois House, and the House Judiciary II — Criminal Law Committee decided
to borrow this already recognized term from the long-standing definition of “forcible felony,”
found at 720 ILCS 5/2-8, for P.A. 96-852.
Section 2-8 of the Criminal Code defines “forcible felony” as “treason, first degree murder,
second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual
assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson,
aggravated kidnapping, kidnapping, aggravated battery resulting in great bodily harm or
permanent disability or disfigurement and any other felony which involves the use or threat of
physical force or violence against any individual.” 720 ILCS 5/2-8.
“Great bodily harm” is not specifically defined in P.A. 96-852 or anywhere else in the Illinois
statutes. However, for purposes of eligibility determinations for certificates of rehabilitation, the
meaning of this term is fairly clear. If a crime victim sustains great bodily harm, which is decided
by the finder of fact, the offense is usually a felony. When defendants have been found guilty of
aggravated battery and have appealed, the appellate courts give the following general guideline:
“Great bodily harm” is more serious or grave than lacerations, bruises, or abrasions that
characterize “bodily harm.” People v. Costello, 95 Ill.App.3d 680, 420 N.E.2d 592, 51 Ill.Dec.
178 (1st Dist. 1981).
Most prosecutors will file felony charges anytime a victim has suffered a broken bone or a
worse injury. Thus, “great bodily harm” might be best reflected in sentencing. A useful indicator
for determining eligibility for a certificate of rehabilitation would be if the charge precluded
good-time credit and the defendant served the entire sentence.
For perspective, the term “great bodily harm or permanent disability” is used in P.A. 96-852
as a modifier of what constitutes an ineligible “forcible felony.” 730 ILCS 5/5-5.5-5. If an offense
that is otherwise a forcible felony elsewhere in the Illinois Criminal Code resulted in great bodily
harm to the victim, then the offense is ineligible for a certificate of rehabilitation. However,
consistent with the rationale of P.A. 96-852, if an offense involved physical force or violence but
the victim did not suffer great bodily harm, then the offender would be eligible for a certificate of
rehabilitation, barring other exclusions. It is the harm or lack thereof to the victim that controls
eligibility; not the act itself. Assuming no great bodily harm, the question boils down to whether
an offense is otherwise expressly excluded. If not, the offense is eligible.
The quantitative effect of these revisions is that literally thousands of Illinois citizens with
criminal records who were previously ineligible can seek certificates of rehabilitation.
B. [8.6] Employer Immunity
Illinois is now the only state that provides immunity for employers who hire holders of
certificates of rehabilitation. This is a double boon: employers avoid respondeat superior liability
and liability from claims like negligent hiring and supervision, and a person with a criminal
record and a certificate of rehabilitation now has a response to the familiar employer objection
that they cannot afford the potential liability from hiring a person with a criminal record.
PRACTICE POINTER
 A claim of negligent hiring by an injured party against an employer is based on the
theory that the employer knew or should have known about the employee’s
background. If this background had been known, a dangerous or untrustworthy
character may have been indicated. Pre-employment background checks, employee
drug testing, and employment physical exams are some of the ways negligent hiring
claims can be avoided.
By contrast, to the extent an employer’s exposure for hiring a person with a criminal record is
addressed in statutes of other states, there is at best some protection for employers but only to the
extent that an employer who hires a person with a certificate of rehabilitation shall be deemed to
have been diligent in hiring. Diligence alone does not preclude liability for negligent supervision
of such an employee, nor does it offer respondeat superior protection.
There is room for expansion of P.A. 96-852’s protections, as discussed by Carnegie Mellon
University researchers who suggest that evidence-based measurements to assess one’s risk of
reoffending are accurate tools for determining future criminal behavior. By engaging this
measurement, employers could determine the likelihood of recidivism by an applicant with a
criminal background. Alfred Blumstein and Kiminori Nakamura, Redemption in the Presence of
Widespread Criminal Background Checks, 47 Criminology 327 (2009).

IV. [8.7] LEGAL EFFECT OF THE CERTIFICATES ISSUED UNDER

P.A. 96-852
The certificates of good conduct issued by the circuit court must contain a specific finding of
rehabilitation and shall have “the force and effect of a final judgment on the merits.” 730 ILCS
5/5-5.5-30(a). This “level the playing field” feature means that, while by the statute’s express
terms a prospective employer or licensing board may always consider the facts and circumstances
of a person’s conviction (730 ILCS 5/5-5.5-25(b)(i)), a certificate holder will now have a court-
issued certificate that will constitute persuasive — and in some cases conclusive — proof of
rehabilitation. This creates a substantial burden on an employer or licensor to show why an
otherwise qualified applicant or candidate should be denied.
Importantly, however, under P.A. 96-852, the circuit court is never in danger of inadvertently
“over-relieving” a felon. The court has discretion to specify the employment disabilities or
disqualifications from which the certificate holder obtains or does not obtain relief. 730 ILCS 5/5-
5.5-25(a). This discretion is key, particularly as the type of offense scales the “food chain” of
licensed occupations and employment involving fiduciary relations and the public trust.
For example, in the case of a former mortgage broker whose conviction results from a
fraudulent mortgage loan, the circuit court would have discretion to relieve all bars or disabilities
but could choose to specify that, while the applicant has proved rehabilitation by clear and
convincing evidence, the Department of Financial and Professional Regulation should ultimately
determine whether to grant or reinstate a mortgage or real estate brokerage license. Similarly, no
doubt the Supreme Court of Illinois would invoke its discretion and ultimate governance power
over lawyers when confronted with a petition to reinstate a law license with a certificate of good
conduct from the circuit court. In that instance, the Supreme Court could treat the circuit court
finding of rehabilitation as conclusive or persuasive. See 730 ILCS 5/5-5.5-25(b)(i).
The circuit court can also use a certificate of good conduct to relieve what would otherwise
be an absolute statutory employment bar. Section 5-5.5-25(a) states: “A certificate of good
conduct may be granted as provided in this Section to relieve an eligible offender of any
employment bar.” 730 ILCS 5/5-5.5-25(a).
Accordingly, pursuant to P.A. 96-852, §5-5.5-25(a), in a case that was subsequently sealed
and thus prevents more specific reference here, Chief Criminal Court Judge for the Circuit Court
of Cook County Hon. Paul Biebel recently entered precisely such an order in the form of a
certificate of good conduct that relieved a felon from an absolute statutory ban on a heavily
regulated form of public employment.
In application, this type of relief is a milestone in reentry and restoration of rights. It not only
is a harbinger of hope for people with criminal records but also indicates a serious recognition by
the State of Illinois and its courts that rehabilitation and substantive employment are necessary
social reforms.
By contrast, the legal effect of a certificate of rehabilitation under the former statute was akin
to a public letter of reference. Under P.A. 96-852, the legal effect of a certificate issued with “the
force and effect of a final judgment on the merits” is akin to any other kind of final, appealable
judgment, which in fact they are as the result of a voluntary quasi-criminal proceeding by the
certificate applicant with the People of Illinois, represented by the state’s attorney, as the
“defendant.” 730 ILCS 5/5-5.5-30(a).
Quasi-criminal proceedings are governed by the Illinois Code of Civil Procedure, 735 ILCS
5/1-101, et seq. Thus, in the absence of an articulated evidentiary standard in the former statute, a
certificate applicant needed only to prove rehabilitation by a preponderance of the evidence. In
the author’s view, this was a serious shortcoming in the former statute. It was a potential breeding
ground for victim skepticism and potentially justified an employer’s or regulator’s view that a
rehabilitation certificate based on this low evidentiary standard lacked useful integrity in the
employment and licensing arenas.
The rationale for giving the certificate the force of judgment is that the court can issue the
certificate only upon proof by clear and convincing evidence. This is the proper tradeoff and a
safeguard for public safety. Also, the clear and convincing evidentiary standard should operate as
a gatekeeper. The intent of this standard is that only those who are truly rehabilitated and can
prove it will come before the court.
The clear and convincing evidentiary standard is no accident. This standard precisely reflects
the nature of the negotiations and discussions the author had with the key legislators, even after
the House Judiciary II — Criminal Law Committee passed S.B. 1050 unanimously without any
articulated evidentiary standard. The consensus was that to protect the integrity of the process of
the resulting certificates and their usefulness in licensing and employment, the evidentiary
standard must be the highest possible. The Senate unanimously concurred in the House
amendments.
Under P.A. 96-852, all parties have a balanced and fruitful stake in the process and outcome.
The court protects the people, the victims, and public safety given the requirement that the
applicant must prove rehabilitation by the highest possible civil evidentiary standard. In return, if
successful, the certificate holder emerges from the proceeding with a judgment that should not be
easily susceptible to collateral attack.
Alfred Blumstein and Kiminori Nakamura, Redemption in the Presence of Widespread

Criminal Background Checks, 47 Criminology 327 (2009), suggests that the influence of these
certificates could be expanded by including information regarding the relationship between
“clean time” and a decline in criminality. The certificates would maintain the same level of legal
relevance but would be supported by the empirical evidence proven in the “measurement of
redemption” study.
PRACTICE POINTER
 Politics is about incremental change. And there remains important future legislative work
to be done to shore up certain portions of P.A. 96-852, so that in practice the statute
operates as intended.

Even after passage of P.A. 96-852, a “devil-in-the-details” bogeyman lurks in 730 ILCS
5/5-5.5-25(b)(i), which certificate holders or their attorneys should recognize and be
prepared to combat. To thwart statutory intent with anti-felon prejudice, a bold licensing
bureaucrat or employer that comes within this paragraph’s contemplation of an
“administrative, licensing, or other body, board, or authority” could ignore the intended
legal effect of a court-ordered certificate and claim a very wrongheaded “plain meaning”
interpretation: that this paragraph on its face expressly allows the license regulator or
public body to “consider” the fact or circumstances of a person’s conviction ostensibly as
a basis for denial. That reading would be a gross bastardization of this passage, which is
a remaining paragraph from the predecessor statute that functions to provide
transparency, i.e., so a certificate does not operate as a de facto expungement or back-
door sealing, which it most certainly is not intended to do. But the passage was not left in
the statute to provide an end-run on a court-ordered certificate and render it meaningless;
it is hardly carte blanche for denying a license or ignoring the legal effect of court-
ordered certificate.
Courts and practitioners know that all statutory subsections must be harmonized to give
full force and effect to both, if possible. Accordingly, for the time being this may be the
argument that practitioners must make in a declaratory judgment case should such anti-
felon sentiment reveal itself in licensing or public body employment. If not by court
decision, it will require future legislation to clarify this point. Also, unfortunately the
present statute lacks any remedy should an employer ignore a court-ordered certificate by
claiming this paragraph on its face allows consideration of the conviction as grounds for
denial of a license or job.
V. [8.8] THE UNIFORM MODEL PENAL CODE SUPPORTS THE

RESTORATION OF RIGHTS
“Consistent with a broad purpose of making forgiveness accessible and reliable, the [Uniform
Model Penal Code] contemplates a key role for the sentencing court in signaling that the
convicted person has paid the full price for his crime and has earned the right to return to
responsible membership in society.” Margaret Colgate Love, Starting Over With a Clean Slate:
In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb.L.J. 101, 128 (2003)
(Colgate Love).
Uniform Model Penal Code §306.6 supports a judicial restoration of rights framework by the
sentencing court, not by a parole or prisoner review board. Nonetheless, there were differences of
opinion as to the best approach for Illinois. From the author’s personal consultation with the
Prisoner Review Board Chairman before passage of P.A. 96-852, it was clear the PRB believed
the Illinois General Assembly should enact the new and untested Uniform Collateral
Consequences of Conviction Act once the Uniform Act was adopted by the Uniform Law
Commission in July 2009. The UCCCA is available at www.law.upenn.edu/bll/
archives/ulc/ucsada/2009_final.htm.
The UCCCA contemplates a restoration of rights framework in a parole board, PRB, or a

court. However, there are significant obstacles to enactment of the UCCCA, and to date, it has
been introduced only in Wisconsin, where the modified version of the Act that was introduced
calls for restoration of rights by the court that convicted the applicant or the court in the county
where the applicant resides.
The last sentence of the Prefatory Note to the UCCCA states: “Some of the issues have been
anticipated by the ABA STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL
SANCTIONS AND DISCRETIONARY DISQUALIFICATIONS OF CONVICTED PERSONS
(3d ed. 2003), and the solutions they propose are mentioned.” However, Ms. Colgate Love
suggests that these precise foregoing ABA STANDARDS (§19-2.5, specifically), in tandem with
Uniform Model Penal Code §306.6, are preferable for judicial restoration of rights:
MPC section 306.6 offers a conceptually sound and practical way of implementing
Standard 19-2.5(c). . . .
***
Standard 19-2.5 Waiver, Modification, Relief
(a) The legislature should authorize a court, a specified administrative body, or

both, to enter an order waiving, modifying, or granting timely and effective relief
from any collateral sanction imposed by the law of that jurisdiction.
***
(c) The legislature should establish a process by which a convicted person may
obtain an order relieving the person of all collateral sanctions imposed by the law of
that jurisdiction. Colgate Love, pp. 126, 134.
The Illinois General Assembly and Governor Quinn have now done precisely what Ms.
Colgate Love suggested in applying Model Penal Code §306.6 and ABA STANDARD 19-2.5 in
tandem: they have chosen the circuit courts as the appropriate forum for restoration of rights.
VI. [8.9] EXECUTIVE PARDON POWER
In connection with the idea of removing the partial jurisdiction of the Illinois Prisoner
Review Board, some stakeholders who opposed S.B. 1050 expressed concerns and made
arguments that circuit court jurisdiction over certificates of rehabilitation would encroach on the
Governor’s pardon power. Were that argument correct, the predecessor statute would have
suffered from the same problems, because the circuit courts have from inception of the statute had
partial jurisdiction over certificate applicants who were probationers, rather than formerly
incarcerated. But more importantly, there are significant differences between certificates of
rehabilitation issued by a circuit court and pardons issued by the Governor.

Article V, §12, of the Illinois Constitution provides the Governor the power to “grant
reprieves, commutations and pardons, after convictions, for all offenses on such terms as he
thinks proper.” A pardon provides “official forgiveness,” relieves the person from further
punishment, and restores rights and citizenship that may have been forfeited by the conviction.
People v. Gillson, 69 Ill.2d 502, 372 N.E.2d 669, 670, 14 Ill.Dec. 473 (1978). See also People v.
Thon, 319 Ill.App.3d 855, 746 N.E.2d 1225, 254 Ill.Dec. 177 (2d Dist. 2001).
P.A. 96-852 does not violate the provision of separation of powers in Article II, §1, of the
Illinois Constitution because it does not encroach on the Governor’s power to grant pardons. The
certificates contemplated by P.A. 96-852 do not provide the same legal effect as pardons and so
do not encroach on the Governor’s sphere of authority. See United States v. DiNapoli, 557 F.2d
962 (2d Cir. 1997) (certificate of relief from disabilities does not pardon defendant’s prior
conviction).
In People v. Holland, 374 Ill.App.3d 121, 870 N.E.2d 1004, 1007, 312 Ill.Dec. 560 (1st Dist.
2007), the court aptly observed that the Governor’s pardon power is rooted in the Constitution
while something like expungment is a creature of legislation and therefore limited by the
legislature’s authority. Likewise, by analogy, relief from collateral consequences of conviction,
like employment bars or disqualifications, are squarely within the legislature’s power to transfer
to the judiciary, exactly like the legislature’s power to create collateral consequences and
employment obstacles.
Importantly, certificates of rehabilitation address privileges of licensing and employment, not

restoration of the types of citizenship rights that the Constitution specifies are the Governor’s sole
province. Certificates of rehabilitation focus on the person’s rehabilitation and, unlike a pardon
that can be granted at the Governor’s discretion, a certificate of rehabilitation under P.A. 96-852
can be granted only to those persons who meet specific criteria of eligibility upon clear and
convincing proof.
Certificates of rehabilitation under P.A. 96-852 in no way encroach on the Governor’s power
to grant reprieves, commutations, and pardons. P.A. 96-852 specifically states: “Nothing
contained in this Article shall be deemed to alter or limit or affect the manner of applying for
pardons to the Governor, and no certificate issued under this Article shall be deemed or construed
to be a pardon.” 730 ILCS 5/5-5.5-45.
VII. [8.10] THE FREE ADVISORY OPINION FROM THE DEPARTMENT OF

FINANCIAL AND PROFESSIONAL REGULATION
P.A. 96-852 also contains an amendment to the Illinois Administrative Code that requires the
Department of Financial and Professional Regulation to reverse course on the former inequitable
and inefficient process for licensing applicants with criminal records. See 20 ILCS 2105/2105-15.
The former process required all applicants with criminal records to invest their time and money in
obtaining the required education and passing a licensing exam before the Department would
consider whether one’s criminal record was a dispositive bar to licensing. Now, upon the request
of an applicant with a criminal record, the Department must provide a free, nonbinding advisory
opinion to the prospective license applicant as to whether his or her criminal record is a
permanent obstacle. The nonbinding nature is a precaution to protect the Department in the event
a person commits a crime after receiving an advisory opinion that his or her criminal record
would not be a bar to licensing.
The act does not define “nonbinding.” However, the Department cannot arbitrarily violate all
traditional notions of equity by simply changing its mind for no reason once it has given a green
light in an advisory opinion, which of course on its own would be patently inequitable and violate
the traditional equitable maxim that one cannot lull another into a false sense of security and then
reverse positions to the detriment of one who had relied on the first position.
VIII. [8.11] THE PRO BONO PANEL
The Safer Foundation of Chicago is organizing a statewide group of private law firms, public
interest law firms, legal aid clinics, private attorneys, and law school clinics that will be available
to assess a potential certificate applicant’s eligibility for relief, and these attorneys will represent
eligible certificate applicants in court free of charge or on a sliding scale. For more information,
contact Anthony Lowery, Safer Foundation Director of Policy and Advocacy, at
anthony.lowery@saferfoundation.org.
IX. [8.12] CONCLUSION
When Governor Quinn signed P.A. 96-852 into law, the Illinois framework for judicial
restoration of rights accomplished the following:
a. The class of offenses eligible for certificates of rehabilitation was vastly expanded and so
too were important opportunities for those who can prove they are rehabilitated to obtain
occupational licensing or other substantive employment.
b. The circuit court that entered a sentence now has exclusive jurisdiction to grant
certificates of rehabilitation, with the legal effect of any other legal judgment.
c. Employers have immunity from third-party claims if they have hired the holder of a
certificate of relief or certificate of good conduct because the certificate holder will have proved
rehabilitation in a court of law by clear and convincing evidence.
d. The Department of Professional Regulation will provide a free, nonbinding advisory

opinion to a prospective license applicant as to whether his or her criminal offense will be a
dispositive obstacle to occupational licensing before the potential applicant invests in licensing
education and testing.

X. [8.13] P.A. 96-852
AN ACT concerning criminal law.
Be it enacted by the People of the State of Illinois, represented in the General Assembly:
Section 5. The Department of Professional Regulation Law of the Civil Administrative Code
of Illinois is amended by changing Section 2105-15 as follows:
(20 ILCS 2105/2105-15) (was 20 ILCS 2105/60)

Sec. 2105-15. General powers and duties.
(a) The Department has, subject to the provisions of the Civil Administrative Code of
Illinois, the following powers and duties:
(1) To authorize examinations in English to ascertain the qualifications and fitness

of applicants to exercise the profession, trade, or occupation for which the examination
is held.
(2) To prescribe rules and regulations for a fair and wholly impartial method of
examination of candidates to exercise the respective professions, trades, or occupations.
(3) To pass upon the qualifications of applicants for licenses, certificates, and
authorities, whether by examination, by reciprocity, or by endorsement.
(4) To prescribe rules and regulations defining, for the respective professions,
trades, and occupations, what shall constitute a school, college, or university, or
department of a university, or other institution, reputable and in good standing, and to
determine the reputability and good standing of a school, college, or university, or
department of a university, or other institution, reputable and in good standing, by
reference to a compliance with those rules and regulations; provided, that no school,
college, or university, or department of a university, or other institution that refuses
admittance to applicants solely on account of race, color, creed, sex, or national origin
shall be considered reputable and in good standing.
(5) To conduct hearings on proceedings to revoke, suspend, refuse to renew, place

on probationary status, or take other disciplinary action as authorized in any licensing
Act administered by the Department with regard to licenses, certificates, or authorities
of persons exercising the respective professions, trades, or occupations and to revoke,
suspend, refuse to renew, place on probationary status, or take other disciplinary action
as authorized in any licensing Act administered by the Department with regard to those
licenses, certificates, or authorities. The Department shall issue a monthly disciplinary
report. The Department shall deny any license or renewal authorized by the Civil
Administrative Code of Illinois to any person who has defaulted on an educational loan
or scholarship provided by or guaranteed by the Illinois Student Assistance
Commission or any governmental agency of this State; however, the Department may
issue a license or renewal if the aforementioned persons have established a satisfactory

repayment record as determined by the Illinois Student Assistance Commission or other
appropriate governmental agency of this State. Additionally, beginning June 1, 1996,
any license issued by the Department may be suspended or revoked if the Department,
after the opportunity for a hearing under the appropriate licensing Act, finds that the
licensee has failed to make satisfactory repayment to the Illinois Student Assistance
Commission for a delinquent or defaulted loan. For the purposes of this Section,
“satisfactory repayment record” shall be defined by rule. The Department shall refuse
to issue or renew a license to, or shall suspend or revoke a license of, any person who,
after receiving notice, fails to comply with a subpoena or warrant relating to a paternity
or child support proceeding. However, the Department may issue a license or renewal
upon compliance with the subpoena or warrant.
The Department, without further process or hearings, shall revoke, suspend, or

deny any license or renewal authorized by the Civil Administrative Code of Illinois to a
person who is certified by the Department of Healthcare and Family Services (formerly
Illinois Department of Public Aid) as being more than 30 days delinquent in complying
with a child support order or who is certified by a court as being in violation of the Non-
Support Punishment Act for more than 60 days. The Department may, however, issue a
license or renewal if the person has established a satisfactory repayment record as
determined by the Department of Healthcare and Family Services (formerly Illinois
Department of Public Aid) or if the person is determined by the court to be in
compliance with the Non-Support Punishment Act. The Department may implement
this paragraph as added by Public Act 89-6 through the use of emergency rules in
accordance with Section 5-45 of the Illinois Administrative Procedure Act. For purposes
of the Illinois Administrative Procedure Act, the adoption of rules to implement this
paragraph shall be considered an emergency and necessary for the public interest,
safety, and welfare.
(6) To transfer jurisdiction of any realty under the control of the Department to any
other department of the State Government or to acquire or accept federal lands when
the transfer, acquisition, or acceptance is advantageous to the State and is approved in
writing by the Governor.
(7) To formulate rules and regulations necessary for the enforcement of any Act
administered by the Department.
(8) To exchange with the Department of Healthcare and Family Services

information that may be necessary for the enforcement of child support orders entered
pursuant to the Illinois Public Aid Code, the Illinois Marriage and Dissolution of
Marriage Act, the Non-Support of Spouse and Children Act, the Non-Support
Punishment Act, the Revised Uniform Reciprocal Enforcement of Support Act, the
Uniform Interstate Family Support Act, or the Illinois Parentage Act of 1984.
Notwithstanding any provisions in this Code to the contrary, the Department of
Professional Regulation shall not be liable under any federal or State law to any person
for any disclosure of information to the Department of Healthcare and Family Services

(formerly Illinois Department of Public Aid) under this paragraph (8) or for any other
action taken in good faith to comply with the requirements of this paragraph (8).
(9) To perform other duties prescribed by law.
(b) The Department may, when a fee is payable to the Department for a wall certificate
of registration provided by the Department of Central Management Services, require that
portion of the payment for printing and distribution costs be made directly or through the
Department to the Department of Central Management Services for deposit into the Paper
and Printing Revolving Fund. The remainder shall be deposited into the General Revenue
Fund.
(c) For the purpose of securing and preparing evidence, and for the purchase of
controlled substances, professional services, and equipment necessary for enforcement
activities, recoupment of investigative costs, and other activities directed at suppressing the
misuse and abuse of controlled substances, including those activities set forth in Sections
504 and 508 of the Illinois Controlled Substances Act, the Director and agents appointed
and authorized by the Director may expend sums from the Professional Regulation
Evidence Fund that the Director deems necessary from the amounts appropriated for that
purpose. Those sums may be advanced to the agent when the Director deems that
procedure to be in the public interest. Sums for the purchase of controlled substances,
professional services, and equipment necessary for enforcement activities and other
activities as set forth in this Section shall be advanced to the agent who is to make the
purchase from the Professional Regulation Evidence Fund on vouchers signed by the
Director. The Director and those agents are authorized to maintain one or more commercial
checking accounts with any State banking corporation or corporations organized under or
subject to the Illinois Banking Act for the deposit and withdrawal of moneys to be used for
the purposes set forth in this Section; provided, that no check may be written nor any
withdrawal made from any such account except upon the written signatures of 2 persons
designated by the Director to write those checks and make those withdrawals. Vouchers for
those expenditures must be signed by the Director. All such expenditures shall be audited
by the Director, and the audit shall be submitted to the Department of Central Management
Services for approval.
(d) Whenever the Department is authorized or required by law to consider some aspect
of criminal history record information for the purpose of carrying out its statutory powers
and responsibilities, then, upon request and payment of fees in conformance with the
requirements of Section 2605-400 of the Department of State Police Law (20 ILCS
2605/2605-400), the Department of State Police is authorized to furnish, pursuant to positive
identification, the information contained in State files that is necessary to fulfill the request.
(e) The provisions of this Section do not apply to private business and vocational schools
as defined by Section 1 of the Private Business and Vocational Schools Act.
(f) Beginning July 1, 1995, this Section does not apply to those professions, trades, and
occupations licensed under the Real Estate License Act of 2000, nor does it apply to any
permits, certificates, or other authorizations to do business provided for in the Land Sales
Registration Act of 1989 or the Illinois Real Estate Time-Share Act.
(g) Notwithstanding anything that may appear in any individual licensing statute or
administrative rule, the Department shall deny any license application or renewal
authorized under any licensing Act administered by the Department to any person who has
failed to file a return, or to pay the tax, penalty, or interest shown in a filed return, or to pay
any final assessment of tax, penalty, or interest, as required by any tax Act administered by
the Illinois Department of Revenue, until such time as the requirement of any such tax Act
are satisfied; however, the Department may issue a license or renewal if the person has
established a satisfactory repayment record as determined by the Illinois Department of
Revenue. For the purpose of this Section, “satisfactory repayment record” shall be defined
by rule.
In addition, a complaint filed with the Department by the Illinois Department of

Revenue that includes a certification, signed by its Director or designee, attesting to the
amount of the unpaid tax liability or the years for which a return was not filed, or both, is
prima facia evidence of the licensee’s failure to comply with the tax laws administered by
the Illinois Department of Revenue. Upon receipt of that certification, the Department shall,
without a hearing, immediately suspend all licenses held by the licensee. Enforcement of the
Department’s order shall be stayed for 60 days. The Department shall provide notice of the
suspension to the licensee by mailing a copy of the Department’s order by certified and
regular mail to the licensee’s last known address as registered with the Department. The
notice shall advise the licensee that the suspension shall be effective 60 days after the
issuance of the Department’s order unless the Department receives, from the licensee, a
request for a hearing before the Department to dispute the matters contained in the order.
Any suspension imposed under this subsection (g) shall be terminated by the
Department upon notification from the Illinois Department of Revenue that the licensee is
in compliance with all tax laws administered by the Illinois Department of Revenue.
The Department shall promulgate rules for the administration of this subsection (g).
(h) The Department may grant the title “Retired”, to be used immediately adjacent to
the title of a profession regulated by the Department, to eligible retirees. The use of the title
“Retired” shall not constitute representation of current licensure, registration, or
certification. Any person without an active license, registration, or certificate in a profession
that requires licensure, registration, or certification shall not be permitted to practice that
profession.
(i) Within 180 days after the effective date of this amendatory Act of the 96th General
Assembly, the Department shall promulgate rules which permit a person with a criminal
record, who seeks a license or certificate in an occupation for which a criminal record is not
expressly a per se bar, to apply to the Department for a non-binding, advisory opinion to be

provided by the Board or body with the authority to issue the license or certificate as to
whether his or her criminal record would bar the individual from the licensure or
certification sought, should the individual meet all other licensure requirements including,
but not limited to, the successful completion of the relevant examinations.
Section 10. The Unified Code of Corrections is amended by changing Sections 5-5.5-5, 5-5.5-
15, 5-5.5-25, 5-5.5-30, 5-5.5-35 and 5-5.5-40 as follows:
(730 ILCS 5/5-5.5-5)

Sec. 5-5.5-5. Definitions and rules of construction. In this Article:
“Eligible offender” means a person who has been convicted of a crime that does not
include any offense or attempted offense that would subject a person to registration under
the Sex Offender Registration Act, the Arsonist Registration Act, or the Child Murderer
and Violent Offender Against Youth Registration Act, but who has not been convicted more
than twice of a felony. “Eligible offender” does not include a person who has been convicted
of committing or attempting to commit a Class X felony, aggravated driving under the
influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any
combination thereof, aggravated domestic battery, or a forcible felony
“Felony” means a conviction of a felony in this State, or of an offense in any other

jurisdiction for which a sentence to a term of imprisonment in excess of one year, was
authorized.
For the purposes of this Article the following rules of construction apply:
(i) two or more convictions of felonies charged in separate counts of one indictment
or information shall be deemed to be one conviction;
(ii) two or more convictions of felonies charged in 2 or more indictments or

informations, filed in the same court prior to entry of judgment under any of them,
shall be deemed to be one conviction; and
(iii) a plea or a verdict of guilty upon which a sentence of probation, conditional

discharge, or supervision has been imposed shall be deemed to be a conviction.
“Forcible felony” means first degree murder, second degree murder, aggravated arson,
arson, aggravated kidnapping, kidnapping, aggravated battery that resulted in great bodily
harm or permanent disability, and any other felony which involved the use of physical force
or violence against any individual that resulted in great bodily harm or permanent
disability.
(730 ILCS 5/5-5.5-15)

Sec. 5-5.5-15. Certificates of relief from disabilities issued by courts.
(a) Any circuit court of this State may issue a certificate of relief from disabilities to an
eligible offender for a conviction that occurred in that court if the court imposed the
sentence. The certificate may be issued (i) at the time sentence is pronounced, in which case
it may grant relief from disabilities, or (ii) at any time thereafter, in which case it shall
apply only to disabilities.
(b) The certificate may not be issued by the court unless the court is satisfied, based on
clear and convincing evidence, that:
(1) the person to whom it is to be granted is an eligible offender, as defined in

Section 5-5.5-5;
(2) the relief to be granted by the certificate is consistent with the rehabilitation of
the eligible offender; and
(3) the relief to be granted by the certificate is consistent with the public interest.
(c) If a certificate of relief from disabilities is not issued at the time sentence is
pronounced it shall only be issued thereafter upon verified application to the court. The
court may, for the purpose of determining whether the certificate shall be issued, request
the probation or court services department to conduct an investigation of the applicant.
Any probation officer requested to make an investigation under this Section shall prepare
and submit to the court a written report in accordance with the request.
(d) Any court that has issued a certificate of relief from disabilities may at any time
issue a new certificate to enlarge the relief previously granted provided that the provisions
of clauses (1) through (3) of subsection (b) of this Section apply to the issuance of any such
new certificate.
(e) Any written report submitted to the court under this Section is confidential and may
not be made available to any person or public or private agency except if specifically
required or permitted by statute or upon specific authorization of the court. However, it
shall be made available by the court for examination by the applicant’s attorney, or the
applicant himself or herself, if he or she has no attorney. In its discretion, the court may
except from disclosure a part or parts of the report that are not relevant to the granting of a
certificate, or sources of information which have been obtained on a promise of
confidentiality, or any other portion of the report, disclosure of which would not be in the
interest of justice. The action of the court excepting information from disclosure shall be
subject to appellate review. The court, in its discretion, may hold a conference in open court
or in chambers to afford an applicant an opportunity to controvert or to comment upon any
portions of the report. The court may also conduct a summary hearing at the conference on
any matter relevant to the granting of the application and may take testimony under oath.
(f) An employer is not civilly or criminally liable for an act or omission by an employee
who has been issued a certificate of relief from disabilities, except for a willful or wanton act
by the employer in hiring the employee who has been issued a certificate of relief from
disabilities.

(730 ILCS 5/5-5.5-25)

Sec. 5-5.5-25. Certificate of good conduct.
(a) A certificate of good conduct may be granted as provided in this Section to relieve an
eligible offender of any employment bar. The certificate may be limited to one or more
disabilities or bars or may relieve the individual of all disabilities and bars.
Notwithstanding any other provision of law, a certificate of good conduct does not
relieve an offender of any employment-related disability imposed by law by reason of his or
her conviction of a crime that would prevent his or her employment by the Department of
Corrections, Department of Juvenile Justice, or any other law enforcement agency in the
State.
(a-6) A certificate of good conduct may be granted as provided in this Section to an

eligible offender as defined in Section 5-5.5-5 of this Code who has demonstrated by clear
and convincing evidence that he or she has been a law-abiding citizen and is fully
rehabilitated.
(b)(i) A certificate of good conduct may not, however, in any way prevent any judicial
proceeding, administrative, licensing, or other body, board, or authority from considering
the conviction specified in the certificate.
(ii) A certificate of good conduct shall not limit or prevent the introduction of
evidence of a prior conviction for purposes of impeachment of a witness in a judicial or
other proceeding where otherwise authorized by the applicable rules of evidence.
(iii) A certificate of good conduct does not limit the employer from accessing
criminal background information; nor does it hide, alter, or expunge the record.
(c) An employer is not civilly or criminally liable for an act or omission by an employee
who has been issued a certificate of good conduct, except for a willful or wanton act by the
employer in hiring the employee who has been issued a certificate of good conduct.
(730 ILCS 5/5-5.5-30)

Sec. 5-5.5-30. Issuance of certificate of good conduct.
(a) After a rehabilitation review has been held, in a manner designated by the chief
judge of the judicial circuit in which the conviction was entered, the Circuit Court of that
judicial circuit shall have the power to issue a certificate of good conduct to any eligible
offender previously convicted of a crime in this State, and shall make a specific finding of
rehabilitation with the force and effect of a final judgment on the merits, when the Court is
satisfied that:
(1) the applicant has conducted himself or herself in a manner warranting the
issuance for a minimum period in accordance with the provisions of subsection (c) of
this Section;
(2) the relief to be granted by the certificate is consistent with the rehabilitation of
the applicant; and
(3) the relief to be granted is consistent with the public interest.
(b) The Circuit Court shall have the power to issue a certificate of good conduct to any
person previously convicted of a crime in any other jurisdiction, when the Court is satisfied
that:
(1) the applicant has demonstrated that there exist specific facts and circumstances
and specific sections of Illinois State law that have an adverse impact on the applicant
and warrant the application for relief to be made in Illinois; and
(2) the provisions of paragraphs (1), (2), and (3) of subsection (a) of this Section have
been met.
(c) The minimum period of good conduct by the individual referred to in paragraph (1)
of subsection (a) of this Section, shall be as follows: if the most serious crime of which the
individual was convicted is a misdemeanor, the minimum period of good conduct shall be
one year; if the most serious crime of which the individual was convicted is a Class 1, 2, 3,
or 4 felony, the minimum period of good conduct shall be 3 years. Criminal acts committed
outside the State shall be classified as acts committed within the State based on the
maximum sentence that could have been imposed based upon the conviction under the laws
of the foreign jurisdiction. The minimum period of good conduct by the individual shall be
measured either from the date of the payment of any fine imposed upon him or her, or from
the date of his or her release from custody by parole, mandatory supervised release or
commutation or termination of his or her sentence. The Circuit Court shall have power and
it shall be its duty to investigate all persons when the application is made and to grant or
deny the same within a reasonable time after the making of the application.
(d) If the Circuit Court has issued a certificate of good conduct, the Court may at any
time issue a new certificate enlarging the relief previously granted.
(e) Any certificate of good conduct issued by the Court to an individual who at the time
of the issuance of the certificate is under the conditions of parole or mandatory supervised
release imposed by the Prisoner Review Board shall be deemed to be a temporary certificate
until the time as the individual is discharged from the terms of parole or mandatory
supervised release, and, while temporary, the certificate may be revoked by the Court for
violation of the conditions of parole or mandatory supervised release. Revocation shall be
upon notice to the parolee or releasee, who shall be accorded an opportunity to explain the
violation prior to a decision on the revocation. If the certificate is not so revoked, it shall
become a permanent certificate upon expiration or termination of the offender’s parole or
mandatory supervised release term.
(f) The Court shall, upon notice to a certificate holder, have the power to revoke a
certificate of good conduct upon a subsequent conviction.

(730 ILCS 5/5-5.5-35)

Sec. 5-5.5-35. Effect of revocation; use of revoked certificate.
(a) If a certificate of relief from disabilities is deemed to be temporary and the

certificate is revoked, disabilities and forfeitures thereby relieved shall be reinstated as of
the date upon which the person to whom the certificate was issued receives written notice of
the revocation. Any such person shall upon receipt of the notice surrender the certificate to
the issuing court.
(b) A person who knowingly uses or attempts to use a revoked certificate of relief from
disabilities in order to obtain or to exercise any right or privilege that he or she would not
be entitled to obtain or to exercise without a valid certificate is guilty of a Class A
misdemeanor.
(730 ILCS 5/5-5.5-40)

Sec. 5-5.5-40. Forms and filing.
(a) All applications, certificates, and orders of revocation necessary for the purposes of
this Article shall be upon forms prescribed by the Chief Justice of the Supreme Court or his
or her designee. The forms relating to certificates of relief from disabilities and certificates
of good conduct shall be distributed by the Director of the Division of Probation Services.
(b) Any court or board issuing or revoking any certificate under this Article shall
immediately file a copy of the certificate or of the order of revocation with the Director of
State Police.
(730 ILCS 5/5-5.5-20 rep.)

Section 15. The Unified Code of Corrections is amended by repealing Section 5-5.5-20.
Section 99. Effective date. This Act takes effect upon becoming law, except that Sections 10
and 15 take effect January 1, 2010.

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8

Blueprint for Progress:

©COPYRIGHT 2010 BY MICHAEL SWEIG. 8S — 1

II. Illinois’ Approach to Collateral Consequences of Conviction

A. [8.2] Motivation and Foundation for P.A. 96-852

III. [8.4] Expansion of Eligible Offenses and Employer Immunity

A. [8.5] If Not Specifically Excluded, Any Offense Is Eligible

VI. [8.9] Executive Pardon Power

VIII. [8.11] The Pro Bono Panel

IX. [8.12] Conclusion

X. [8.13] P.A. 96-852

a. more than two felonies;

b. any Class X felony;

c. any felony that resulted in “great bodily harm or permanent disability”;

d. conviction for aggravated DUI, drugs, or aggravated domestic battery; and

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 8S — 3

II. ILLINOIS’ APPROACH TO COLLATERAL CONSEQUENCES OF

A. [8.2] Motivation and Foundation for P.A. 96-852

 “Infamy” is even codified in the Catholic dogma:

It is twofold in species, infamy of law (infamia juris) and infamy of fact

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 8S — 5

certain crimes, or makes it contingent upon the decision of a judge, or

Infamy of fact is the result of a widespread opinion, by which the

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 8S — 7

B. [8.3] Social and Fiscal Timeliness

III. [8.4] EXPANSION OF ELIGIBLE OFFENSES AND EMPLOYER

A. [8.5] If Not Specifically Excluded, Any Offense Is Eligible

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 8S — 9

1. any Class X felony;

2. any felony that resulted in “great bodily harm or permanent disability”;

B. [8.6] Employer Immunity

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 8S — 11

IV. [8.7] LEGAL EFFECT OF THE CERTIFICATES ISSUED UNDER

Alfred Blumstein and Kiminori Nakamura, Redemption in the Presence of Widespread

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 8S — 13

V. [8.8] THE UNIFORM MODEL PENAL CODE SUPPORTS THE

The UCCCA contemplates a restoration of rights framework in a parole board, PRB, or a

Standard 19-2.5 Waiver, Modification, Relief

(a) The legislature should authorize a court, a specified administrative body, or

VI. [8.9] EXECUTIVE PARDON POWER

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 8S — 15

Importantly, certificates of rehabilitation address privileges of licensing and employment, not

VII. [8.10] THE FREE ADVISORY OPINION FROM THE DEPARTMENT OF

VIII. [8.11] THE PRO BONO PANEL

IX. [8.12] CONCLUSION

d. The Department of Professional Regulation will provide a free, nonbinding advisory

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 8S — 17

X. [8.13] P.A. 96-852

AN ACT concerning criminal law.

(20 ILCS 2105/2105-15) (was 20 ILCS 2105/60)

(1) To authorize examinations in English to ascertain the qualifications and fitness

(5) To conduct hearings on proceedings to revoke, suspend, refuse to renew, place

issue a license or renewal if the aforementioned persons have established a satisfactory

The Department, without further process or hearings, shall revoke, suspend, or

(8) To exchange with the Department of Healthcare and Family Services

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 8S — 19

(9) To perform other duties prescribed by law.

In addition, a complaint filed with the Department by the Illinois Department of