Hundreds of sealing and expungement orders yet to be enforced

Under pressure from a Cook County judge, the Illinois State Police has relaxed its opposition to sealing or expunging the criminal records of thousands of ex-offenders in the last seven months, but hundreds have yet to reap the benefits.

Paul P. Biebel Jr., presiding judge of the Circuit Court of Cook County Criminal Division, demanded in March that the police begin sealing and expunging the records, in response to a Chicago Reporter investigation, initially published online in March. The Reporter revealed then that the police had defied about 2,700 of the 32,000 sealing and expungement court orders issued between 2004 and 2008.

Later that month, the police notified the Office of the Illinois Attorney General–”which, by law, represents the Illinois State Police in court–”that they had rejected about 1,500 more records–”about 4,200 in all–”than previously revealed to the Reporter.

They also indicated their defiance began no later than 1999, five years earlier than previously reported, according to an e-mail and an agency spreadsheet obtained by the Reporter.

The March revelation disappointed officials in the attorney general’s office, said Cara Smith, deputy chief of staff.

“My sympathy for the petitioners in these cases has grown through the process, because they were the least powerful in the process,” Smith said. “That’s always the case, but it’s particularly the case here.”

Since the revelation, the agency has begun to bring itself into compliance with some of the defied orders.

From March through October, agency officials exhumed and reconsidered sealing and expungement orders issued between 2004 and 2008. Of the 2,692 orders once deemed invalid, they reversed their position on about 55 percent of them, according to Smith.

Officials enforced those orders by sealing and expunging the records indicated but continued to defy the rest, still believing they violate the state’s sealing and expungement law, Smith said. The police are consulting with state’s attorneys on these cases, she said.

Judges will ultimately decide how to handle the orders if they are still deemed ineligible by the police and prosecutors.

Another 1,330 sealing and expungement court orders will be exhumed and enforced or referred to state’s attorneys, until agency officials have reviewed the orders they have defied since 2000, Smith said.

The review, also called an audit, has no projected end date, she said.

Attorneys for a group of some of the affected ex-offenders declined to comment for this story. But in March, they said they were troubled that the police weren’t planning to automatically enforce all defied court orders issued since 2004 and earlier. They threatened to take more legal action against the agency–”possibly including a class action lawsuit–”if officials there refused to enforce the overwhelming majority of defied orders.

“We’ve put so much time into this already,” Marjie Nielsen said in March. “If it’s going to come down to some sort of individualized litigation of hundreds of petitions, the resources just aren’t there. We would rather try a different tactic.”

It also upset the attorneys that the police 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 ex-offenders, said Lt. Scott Compton, chief public information officer for the police, in March.

Some ex-offenders affected by the police’s refusal to seal or expunge their records lost jobs and jobs offers. One African-American woman lost her job as a bus driver while waiting for the agency to seal her dismissed misdemeanor assault charge. Her boss wanted to do a background check, but she didn’t give him permission because she knew the police hadn’t yet sealed her records.

The police rejected certain sealing and expungement orders because they believed the law governing them, the nearly 80-year-old Criminal Identification Act, commanded them to do so. The agency took its cue from this passage, added in 1991: “Any court order contrary to the provisions of this section is void.”

“A void order may be attacked at any time and in any court –” either directly or collaterally,” an October 2008 Illinois State Police court brief said.

They categorized their reasons for rejecting orders into 10 groups in the agency spreadsheet. About 45 percent of ineligible records were rejected because the ex-offenders had an ineligible prior conviction, according to the spreadsheet.

In January–”after 18 months of defending its defiance in court–”the police agreed to start enforcing all future orders. Only those issued prior to January 2009 are still subject to defiance.

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