Closing arguments

Linda Parker’s final paycheck came to the mailbox of her Bronzeville home a week after her 2004 accident. When her daughter retrieved it, she brought it upstairs into the bedroom where the then 47- year-old lay injured from her fall at work. A misstep on a ladder had dumped Parker on the ground, crushing three of her higher vertebrae, immobilizing her for a few weeks. The paycheck was her lifeline. The divorcee knew that for the foreseeable future–”until she healed and found a new job–”she would have to rely on her savings, investments and disability insurance.

Parker, whose name has been changed to protect her identity, has dark brown skin, full lips, prominent cheekbones and fullmoon eyes. Her gray hair is soft, wavy and often piled into a messy bun. A gap separates her front teeth. With her strong resume and excellent leadership skills, she seemed destined to rebound from her injury. She also had incredibly good luck.

The year after her fall, Illinois lawmakers amended the state law that allows judges to seal or expunge the criminal records of people with certain low-level felony or misdemeanor arrests or convictions. The amendment liberalized the then 74-year-old Criminal Identification Act by loosening its eligibility requirements. It was designed to help more ex-offenders avoid further legal trouble by finding jobs and otherwise contributing to society.

Despite Parker’s considerable professional talents, she needed this act of grace. In 1989, she was arrested and detained in Cook County Jail for about a week, after a financial dispute with her disabled daughter’s homehealth nurse erupted into a fistfight. Under the 2005 amendment, she returned to court in 2006 and convinced a judge to order the sealing of her arrest and conviction record.

Parker soon learned she would never fully heal from her injury. So after grieving her permanent disability, she decided in the fall of 2007 to make herself useful by becoming a foster parent. But on the brink of getting her foster care license, a new crisis emerged. When the hiring manager at the foster care agency ran her background check, he saw the two charges from 1989. The manager showed up at her door demanding answers. Parker didn’t have any. She naively believed, like her attorney and the thousands of Illinois ex-offenders who request sealing and expungement every year, that whenever a judge ordered one, it actually happened. She called her attorney to find out what went wrong. “I went to his office, and he said, –˜You’re about the 50th person that has come into my office that they have did this to, and it’s stopping everybody from doing one thing or another,'” she said.

Across the state, thousands of ex-offenders and their legal advocates have discovered a bitter truth: The sealing and expungement system that Illinois lawmakers patted themselves on the back for liberalizing in 2005 is defective. When a judge ordered the Illinois State Police to seal or expunge the records of an ex-offender, sometimes it happened; sometimes it didn’t.

The police made the decisions using different criteria than the judges. They aren’t sure when the policy began but provided The Chicago Reporter with data quantifying the practice on March 16. The Reporter learned:

* Statewide, about 1,800 of the 21,000 sealing and expungement orders issued after the amendment, between 2006 and 2008, went unenforced.

* An additional 900 or so orders went unenforced in 2004 and 2005 before the amendment.

* Statewide, about 6 percent of the 7,061 court orders issued in 2008 went unenforced.

* Orders issued by Paul P. Biebel Jr., presiding judge of the Circuit Court of Cook County Criminal Division, were ignored about 12 percent of the time in 2007.

The statistics differ from the numbers the Reporter released online March 13, because the police retracted that data. Lt. Scott Compton, chief public information officer for the police, said his department miscalculated the figures. Rather than counting the total number of court orders the police received and denied, the agency tallied the number of criminal charges on each order, he said.

With unsealed criminal records, Illinois ex-offenders still struggle to find jobs and otherwise re-enter society. Eight months after release, 65 percent of Illinois, Ohio and Texas ex-offenders who participated in an Urban Institute study published in October 2008 said they had been employed at some point since their incarceration, but less than half were currently employed. According to the Equal Employment Opportunity Commission, a federal agency that enforces fair hiring policy, this unemployment adversely and disparately affects African Americans and Latinos, who dominate the nation’s ex-offender population.

In Illinois, African Americans bear the brunt. They comprised 15 percent of Illinois’ total population but 61 percent of Illinois parolees in 2007, according to the Illinois Department of Corrections, while white people made up 79 percent of total population and 30 percent of parolees. Latinos accounted for 15 percent of total population and 8.6 percent of parolees.

The sealing and expungement law is only as good as the people enforcing it, said Michael Sweig, a legal studies professor at Roosevelt University and public policy liaison at Safer Foundation, a Chicago nonprofit that helps ex-offenders reenter society. “You can have all the legislation in the world, but if you’re going to have an agency like the police that’s going to second guess the court, I don’t know how you’re going to stop it and I don’t know how you’re going to guard against it,” he said. “If you can’t get the king to follow the court, that’s a problem.”

Police rationale for rejecting certain orders is best explained by their court briefs. The agency took its cue from this passage in the Criminal Identification Act, added in 1991: “Any court order contrary to the provisions of this Section is void.” The police believed this so-called void-order provision mandated their defiance. “A void order may be attacked at any time and in any court–”either directly or collaterally,” said an October 2008 court brief.

Disputes between the police and judges increased after the 2005 amendment, in part, because the amendment is dense and complicated. It contains clauses that say, for instance, convictions are sealable when “at least 4 years have elapsed since the last such conviction or term of any sentence, probation, parole, or supervision, if any, whichever is last in time.” Most judges interpreted this waiting period to mean that living crime-free for four years entitles ex-offenders to seal any eligible offense. The police said it meant eligible offenses could only be sealed if they are at least four years apart.

Disputes also existed over whether some misdemeanor and felony arrests that don’t lead to conviction could be sealed. Judges said yes. The police said no.

From 2007 to 2008, 126 Chicago-area ex-offenders participated in litigation urging judges to subdue the agency. The police were overstepping their authority, the ex-offenders’ attorneys said. Only a judge can decide who deserves sealing and if the police disagree with that judge, the law says they should file a notice in court, said Chris Wilmes, one of four attorneys who worked on the litigation. That gives ex-offend ers a chance to respond by pleading their case–”their civil right. Ultimately, the only person who can void an order is a judge, said Wilmes, a staff attorney with the Legal Assistance Foundation of Metropolitan Chicago. “That’s the way disputes get resolved in America, and I think it’s a pretty good method,” he said. “You don’t want to have this executive or police state that gets to sort of decide whether or not to follow orders.”

Cook County Circuit Court Judge Ronald C. Riley scolded the agency too. He was one of two judges refereeing the Chicago-area litigation, until his January retirement. The police denied 6 percent, or 174, of his orders between 2004 and 2008. At a June 2008 court hearing, he condemned the agency and threatened to find it in contempt of court, saying: “I’ve said this before, and you were here. I need my orders complied with –¦ I said that your organization was an arrogant organization –¦ I was not happy that my orders weren’t being complied with –¦ I probably had 50 or 60 [orders at the time] where the Illinois State Police said, –˜Screw Riley!’ Somebody’s got to be in control. That’s me.”

In January–”after 18 months in court with judges Riley or Biebel–”the police acquiesced, renouncing the practice in a settlement approved by the court. The police now agree to follow judges’ orders unequivocally. If officials disagree with orders, they’ll file an objection in court and await the judges’ decision.

But their newfound submissiveness only solves part of the problem. It does nothing for the thousands of ex-offenders whom they’ve denied sealing and expungement, possibly since 1991–”when advocates believe the practice began. Wilmes and his legal partners have so far won sealing for only 121 of them.

In mid-March, police officials announced plans to seal or expunge many of the rest but set pre-conditions that made Wilmes and his legal partners doubt their sincerity. “The devil is in the details,” he said. “We still have a lot more work to do.”

 

From 1991 until 2007, no one challenged the agency’s void order policy, some ex-offender advocates believe. It is possible that no one knew about it. Legal aid clinics in Chicago rarely interacted with the police during that time because their clients didn’t need to. Almost none of them qualified for sealing and expungement under the stringent requirements of the then-applicable law. To get a record expunged or sealed under it, everything on your record had to qualify.

Chicago’s legal aid attorneys only learned about the voidorder policy after the 2005 amendment relaxed the eligibility requirements. From 2006 to 2007, annual applications for sealing and expungement jumped 68 percent statewide, forcing the attorneys into frequent police contact. In the winter of 2006, strange letters started arriving from the police, denying all or part of a sealing order. The letters said, “THE RECORD IDENTIFIED BELOW IS NOT ELIGIBLE TO BE SEALED OR EXPUNGED,” but did not supply a specific rationale, bewildering the attorneys. Until they understood police reasoning, they couldn’t challenge it.

State Rep. Constance “Connie” Howard, a sponsor of the 2005 amendment, heard about the letters and began working to pass a law that would forestall the looming crisis. But the bill, HB1831, eventually died in the house.

Attorneys at Cabrini Green Legal Aid, widely recognized as Chicago’s leading sealing and expungement advocate, initially tried to solve the problem without litigation or legislation. When the letters arrived, they called the police’s bureau of identification, which processed sealing petitions, to ask for help decoding them.

Beth Johnson–”a tall, thin, red-faced, blonde with thick lips and a smoker’s husky voice–”worked for Cabrini Green Legal Aid Clinic and made some of the calls. The people who manned the phones didn’t seem to understand the policy or the law, she said. They just regurgitated what they had been told about disputed clauses, such as waiting periods. “They would just be like, –˜Oh, she got picked up within four years of that conviction,'” Johnson said. “And I would be like, –˜OK, but the statute reads this.'”

Their response: “–˜Nope, she was picked up and she can’t seal that record,'” Johnson said.

Going to court was unavoidable, Johnson and her legal partner, Marjie Nielsen, director of the ex-offender advocacy program at the Chicago Legal Clinic, decided. They approached Wilmes and another attorney for help. Judges sympathized with their clients immediately. They had been hearing about the denial letters from ex-offenders who came to court complaining about them. At least two judges had required police officials to appear in court and explain themselves.

Between July 2007 and January 2009, litigation persuaded the police to seal 121 ex-offenders’ records. Parker’s was one of them. She had been one of the unlucky ones who never got a letter. “The whole thing was unfair,” she said. “The judge told the [police] to expunge or seal the file, and they should have done what the courts ordered them to do.”

Another client, also an African-American woman, was even unluckier than Parker. A subcontractor for the Chicago Public Schools had just hired her to drive buses, and her boss wanted to run a background check. She stalled him for awhile by withholding her permission, hoping the police would act soon to seal her dismissed misdemeanor assault charge. They eventually did. But the delay was too long. Her boss stopped waiting for her to sign off and fired her.

 

Afew weeks after the settlement, in early February, Wilmes sat hunched over an egg salad sandwich and bag of Doritos, in a dimly lit and cavernous cafeteria near his downtown office. He is tall and lanky, with a broad, thin face, a crooked nose and bushy eyebrows. He mentally inventoried the pile of criminal records cases on his desk: some against employers who’ve refused to hire innocent arrestees, some against background-check companies who’ve falsified criminal records. He expected that there would be more cases against the police. Any sealing orders submitted to the agency prior to Jan. 7, the day the settlement took effect, were still subject to police defiance. “There’s still thousands of orders out there that are being ignored,” he said. “It’s a terrible problem. People are losing out on jobs because the [police] think they don’t have to follow what judges say.”

In mid-March, his outlook briefly brightened. News of the Reporter’s investigation jumpstarted a round of promising discussions with the police that month, led by Judge Biebel and encouraged by the Office of the Illinois Attorney General, which represented the agency in court during the 18-month Cook County litigation. The police agreed during those meetings to thoroughly audit their records and then start enforcing voided orders, supplying Biebel with weekly updates of their progress.

At the beginning of April, negotiations were expected to continue. But the more the police detailed their compliance plan, the more skeptical Wilmes and his legal partners were becoming. The police insisted, for instance, that even after the audit some sealing and expungement orders still wouldn’t merit enforcement. “It’ll be a thorough review of each case,” said Compton, the police spokesman. “If it’s something that can be complied with, we will. If it can’t, we’ll go through the court process with the attorney general’s office.”

It’s too late to object now, Nielsen said. The police should have done that within 90 days of a sealing order or 30 days of an expungement order, she said, adding that some voided orders could be 20 years old.

The police also plan to continue releasing the records of affected ex-offenders while determining which ones deserve sealing. Their technology won’t allow them to select and suppress the records of these offenders, Compton said.

Anyone with an unenforced sealing order can call a legal aid attorney for help, and, if necessary, face-off with the police in court. The ex-offender could also try visiting the agency’s Springfield office with the unenforced sealing order in hand and demand that clerks in the bureau of identification enforce it; it worked for Johnson’s client when he did it in December.

But Johnson and Nielsen want systemic justice. They are working with a Chicago law firm, Winston and Strawn, to get it. If the police are still refusing by summer to dig up and seal records en masse, the firm will take the matter directly to the Illinois Supreme Court, file a class action lawsuit or press harder for Biebel to find the police in contempt of court. “We would still like the [police] to do the right thing without having to escalate this anymore,” Nielsen said. “Really, nobody should have to litigate this.”

Contributing: Rolando Ithier, Jenaun Armstrong, Wade Askew and Jennifer Fernicola.

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