beyond legal mechanisms — employment, housing, and other related critical support

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©COPYRIGHT 2010 BY IICLE. 6S — 1

Beyond Legal Mechanisms —Employment, Housing, andOther Related CriticalSupport

JODINA HICKSMICHAEL SWEIGSafer FoundationChicago

6



ILLINOIS CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF — SUPPLEMENT

6S — 2 WWW.IICLE.COM

I. [6.1] Introduction

II. Employment

A. [6.2] General Barriers

B. Employment Issues To Review with Client

1. [6.3] Review Criminal Background Check

2. [6.4] Impact of Criminal Record on Specific Industries

3. [6.5] Discussing Criminal History with Employers

4. [6.6] Hiring Incentives Available to Employers

a. [6.7] Immunity for Employers Hiring Employees with a Certificate of

Rehabilitation

b. [6.8] Tax Incentives

c. [6.9] Bonding

d. [6.10] Other Financial Assistance

e. [6.11] Support Organizations

5. [6.12] Disincentive to Employers — Employer Liability

6. [6.13] Employment Rights of People with Criminal Records

7. Preparation for Job Market

a. [6.14] Getting Assistance

b. [6.15] Civic Engagement

c. [6.16] State Identification

d. [6.17] Employment Information Sources

III. Housing

A. [6.18] Exclusionary Policies

B. [6.19] Housing Issues To Review with Client

C. [6.20] Locating Housing Providers

IV. [6.21] Education

V. [6.22] Public Benefits Restrictions

A. [6.23] Temporary Assistance for Needy Families (TANF)

B. [6.24] MedicaidC. [6.25] Food Stamps

D. [6.26] Unemployment Insurance

VI. [6.27] Military Service

VII. [6.28] Voting and Political Engagement



BEYOND LEGAL MECHANISMS — EMPLOYMENT, HOUSING, AND OTHER RELATED CRITICAL SUPPORT §6.1

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 6S — 3

I. [6.1] INTRODUCTION

About 700,000 people are released from state and federal prisons annually, and

approximately nine million are released from local jails. Allen J. Beck, The Importance of

Successful Reentry to Jail Population Growth, Jail Reentry Roundtable of the Urban Institute,

Washington, DC (June 27, 2006), www.urban.org/projects/reentry-roundtable/roundtable9.cfm.The number of people released from state prisons each year has been steadily increasing, from

slightly more than 600,000 in 2000 to more than 670,000 in 2004. See Paige M. Harrison and

Allen J. Beck, Prison and Jail Inmates at Midyear 2005, U.S. Department of Justice, Bureau of

Justice Statistics (May 2006), http://bjs.ojp.usdoj.gov/content/pub/pdf/pjim05.pdf.

In 1974, 1.8 million people, or 1.3 percent or the adult population, had served time. In 2001,

5.6 million people, or 2.7 percent of the adult population, had served time. The Department of

Justice estimates that if the 2001 imprisonment rate remains unchanged, 6.6 percent of Americans

born in 2001 will serve prison time during their lives. In addition to those who have served prison

time, an even larger proportion of the population has been convicted of a criminal offense without

going to prison. As of December, 2001, it was estimated that over 64 million people in the United

States, 30 percent of the nation’s adult population, had 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. According to a 2003 report of the Department of Justice, more than 71

million people, nearly 25 percent of the entire population, had some kind of a criminal record.

Office of Justice Programs, Attorney General Ashcroft Announces Nationwide Effort To

Reintegrate Offenders Back Into Communities, www.reentry.gov/ashcroftpr.html.

It may be generally accepted that people who are released from prison and return to the larger

society deserve a second chance. However, this second chance is laden with obstacles and

barriers that can develop into a seemingly insurmountable wall for those trying to navigate

prisoner reentry without support. Some of these obstacles are legally imposed collateral

consequences. According to an American Bar Association report on the collateral consequencesof conviction:

[W]hile some restrictions [on employment of convicted persons] are narrowly tailored

to protect against an identified public safety risk, more often they are categorical

and arbitrary, bearing little or no apparent relationship to particular offense

conduct, and without consideration of a particular individual’s post-conviction

rehabilitation. ABA, Commission on Effective Criminal Sanctions, Report to House of

Delegates (On Employment and Licensure of Persons with a Criminal Record), p. 4 (Feb.

2007), http://meetings.abanet.org/webupload/ommupload/CR209800/newsletterpubs/

Report.III.PDF.121306.pdf.

Other restrictions to critically needed employment and housing resources are imposed by

gatekeepers, such as employers and landlords, who are often hesitant to give people with records

a second chance. Consequently, those affected by the collateral consequences of conviction often

consider their criminal “confinement” to be life-long, no matter how short or long their actual

prison sentence.



§6.1 ILLINOIS CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF — SUPPLEMENT


Prisoner reentry has progressed from a relatively new concept not sufficiently understood by

society at large. With the precipitous decline in the global, national, and local economies of the

late 2000s, the issue of prison reentry has taken center stage for policymakers, the media, and

direct service providers. Mass warehousing of prisoners is financially unaffordable and politically

problematic. With early release programs, rethinking sentencing and how to handle nonviolent

offenders (particularly nonviolent first-time offenders), diversion programs, alternativesentencing, and prison reentry have become primary social issues.

The challenging path from court to prison and back to society is not made any easier by

organized supportive services or resources for those seeking reentry, nor is it engineered by a

single or integrated set of agencies. It is up to the individual to navigate this path and reestablish

himself or herself after a criminal conviction, prison/jail time, or termination of home

confinement or probation. Too often the family of the person with a criminal record is left to

provide the support for that reentry effort. Also, it is well established that those affected by the

criminal justice system tend to be poor and from poor communities and families. For example,

more than half of the approximately 40,000 people leaving Illinois prisons who return to Chicago

annually end up in just 7 of the poorest of the city’s 77 neighborhoods. Rex W. Huppke, Ex-Cons

Flock to 7 Areas in Chicago: Jobs Scarce, Crime Prevalent, Study Finds, Chicago Tribune, NNWEd., Sept. 15, 2005, Metro Section, p. 4, available at http://articles.chicagotribune.com/2005-09-

15/news/0509150222_1_prisoner-re-entry-ex-offenders-illinois-department. The poorest

communities with the fewest resources are required to carry the weight of reentry with often

inadequate assistance or provision of resources.

While many efforts are underway to establish reentry services and systems, we are only

beginning to understand that every part of and every actor in the criminal justice system

(including public defenders, prosecutors, judges, and criminal defense lawyers) and public service

agencies must collaborate to establish and provide support to people during the reentry process.

Traditionally, these criminal justice actors were more concerned with the “front end,” i.e.,

determining guilt or innocence, establishing a plea, facilitating a speedy trial, and, in rare cases,

considering diversionary options.

It is becoming apparent to policy makers and criminal justice practitioners that the “back

end” of the process must be more fully understood to better represent clients and ensure that the

best interests of justice are served. In other words, clients and criminal justice actors must

understand the impact that each sentencing option has on the long-term career, housing, and other

challenges to future opportunities for their clients. For example, a public defender might

recommend a client take a plea that moves an attempt to distribute charge down to a drug

possession charge, but once legislative and administrative occupational impacts are reviewed, the

client may choose otherwise.

Indeed, awareness of the complexity and lifelong impact of collateral sanctions may and

perhaps even should create a new ethical consideration for criminal defense lawyers and

prosecutors. Also, legislation to address the issue is emerging, such as the Uniform Collateral

Consequences of Conviction Act, approved July 15, 2009, by the Uniform Law Commission

(ULC). See www.law.upenn.edu/bll/archives/ulc/ucsada/2009_final.htm.





While largely procedural, the provisions of the Act nonetheless are designed to rationalize

and clarify polices and provisions that are already accepted in the states in various degrees. The

Act includes provisions to ensure that defendants are aware of the existence of collateral

sanctions before conviction, are reminded of them at release, govern the effect of out-of-state

convictions, and provide the various means by which some offenders may obtain relief from

many such consequences. A perhaps unduly optimistic requirement of the Act, given the strainedstate coffers nationally, requires states that adopt the Act to collect in a single document all of the

collateral sanctions and disqualifications contained in state statutes or administrative regulations.

While at the time of this publication the Act has been introduced only in Wisconsin and

Oklahoma, the substance of the Act and the procedural safeguards it suggests can be an excellent

guide for judges, prosecutors, and criminal defense lawyers, even in states that have not formally

adopted the Act.

Criminal justice actors such as the Cook County State’s Attorney, the Cook County Public

Defender’s Offices, the Illinois Prisoner Review Board, and countless Illinois presiding judges

have become actively engaged and outspoken in both Illinois and national prisoner reentry

matters. Such matters include recommending diversionary options, establishing specialty courts

(e.g., drug court, domestic violence court, mental health court), supporting legislative relief (e.g.,expungement, sealing, certificates of rehabilitation, providing employer immunity for employing

holders of a certificate of rehabilitation). It is in the interest of public safety that this support for

the successful reentry and the removal of barriers has grown. It also reflects awareness that those

who have served their sentences want nothing more than to reestablish their lives and support

themselves and their families.

This chapter is written specifically for public defenders and criminal defense lawyers. While

focusing on the legal matters facing clients, the practitioner should understand the impact of the

criminal record on employment, housing, and other areas of importance to the client. Indeed, the

practitioner may be able to provide assistance to the client before, after, or outside of sentencing,

expungement, sealing, and certificate of rehabilitation processes that will strengthen the client’s

chances for long-term success, particularly in the employment arena.

II. EMPLOYMENT

A. [6.2] General Barriers

People with criminal records face multiple barriers to employment. Some of these barriers

come in the form of legislatively mandated prohibitions ranging from obtaining various

occupational licenses to maintaining certain distances from patients, the elderly, or children. In

Illinois alone, there are 57 statutes that limit licensing of 65 occupations and professions. Council

of Advisors to Reduce Recidivism through Employment (CARRE), Certificates of Relief from

Disabilities: Implementation and Tracking: Full Report (Nov. 2006), www.saferfoundation.org/

docs/15-crd_implementation_full_report_final.pdf. Other barriers come in the form of

governmental administrative rules or policies set by insurance companies to exclude people with

specific criminal offenses on their record.





The State of Illinois has continued to recognize the collateral consequences of having a

criminal record with the passage of progressive legislation that provides important relief. One

example is P.A. 96-852 (eff. Jan. 1, 2010). The new law involves an amendment to the Illinois

Administrative Code and the Illinois Criminal Code, the key points of which are as follows:

1. The circuit court that entered a sentence of conviction, and no longer the Prisoner ReviewBoard, now has exclusive jurisdiction to grant certificates of rehabilitation.

2. The law expands eligibility as to who may prove their rehabilitation and receive a

certificate of relief from disabilities (no waiting period for occupational licensing) and certificate

of good conduct (three-year waiting period for relief from general, non-licensing employment

bars for felons, one-year waiting period for misdemeanants).

3. Even violent and non-probationable offenses may be eligible for relief.

4. The only eligibility limitations are

a. more than two felonies;

b. a Class X felony;

c. any felony that resulted in “great bodily harm or permanent disability” (730 ILCS

5/5-5.5-5);

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

e. offenses that require post-release registration (sex offenses, offenses against children,

rape, arson, etc).

5. Employers have immunity from third-party claims if they have hired the holder of acertificate of relief or certificate of good conduct.

6. Before a person with a criminal record begins the licensing process, the Department of

Financial and Professional Regulation must now offer a free, non-binding advisory opinion as to

whether one’s criminal record will be a dispositive obstacle to licensing. The non-binding nature

of this advisory opinion allows the Department to deny a license if the person subsequently has

additional contact with the criminal justice system while he or she is also involved in obtaining

licensing education and taking the required examinations.

Other examples of helpful legislation that provides more limited relief are expungement and

sealing. However, the significant expansion of eligibility for certificates of rehabilitation and

healthcare waivers provide more relief because they involve transparency, unlike expungement

and sealing. For example, §40 of the Health Care Worker Background Check Act, 225 ILCS

46/40, allows an employer who might otherwise have been prohibited from doing so to hire a

client with a criminal record.





For more on the Illinois law of certificates of rehabilitation and the significant expansion of

eligibility, see Chapter 8.

NOTE: Public defenders and criminal lawyers should be aware of the career goals and

occupational background of a client when they consider plea agreements. It could be that a plea

agreement that carries less time (e.g., pleading down from a violent offense to a drug offense)could carry a lifelong impact on the client’s employment options. Also, practitioners who

represent clients in sealing proceedings should strongly consider the transparent opposite relief,

which is the certificate of rehabilitation. Essentially the same proof of rehabilitation required for a

certificate of rehabilitation is required to obtain a sealing, and for those non-sealable or non-

expungeable misdemeanors, a certificate of rehabilitation is the viable and practical relief. The

client must accept that he or she will have to “front” or advertise their criminal record, rather than

suppress it, but employers respond more positively to such honesty.

Employer prejudice can have an even greater impact on a client’s job opportunities than

legislative and administrative barriers or policies. Thus, it is always in the client’s interest to

disclose a criminal record and to be candid and frank about the circumstances. Both public and

private employers operate from their own experience, understanding, and bias toward people withcriminal histories. Too often, the result is that the employer decides to establish blanket hiring

policies that exclude people with a criminal background. The easy access that potential employers

have to information by way of Internet background checks, which are unregulated and often

faulty, forces those with criminal backgrounds (or those with names that match those with

criminal records) to disclose and discuss their background with potential employers.

B. Employment Issues To Review with Client

1. [6.3] Review Criminal Background Check

Just as all people should review their credit history annually to verify its accuracy, an

individual with a criminal record should review his or her criminal background check and rapsheet. In Illinois, a rap sheet, also known as a criminal record, is the record of arrests and

convictions in the state for persons 17 years old or older. Rap sheets are maintained by the Illinois

Department of State Police (ISP), Bureau of Identification. The Federal Bureau of Investigation

(FBI) is notified of all arrests by the ISP. While the ISP or FBI are recommended as the most

accurate source for employers to utilize, there are also websites that collect information and

generate criminal histories for employers, but they cannot be relied on for definitive accuracy.

Therefore, clients should pull their criminal history, as well as two or three other background

checks, so that they will have a clearer assessment of what is available to employers via

background check services.

Conviction information can be obtained from the ISP under the Illinois Uniform Conviction

Information Act (UCIA), 20 ILCS 2635/1, et seq.:

Illinois State Police, Division of Administration, Bureau of Identification

260 North Chicago Street

Joliet, IL 60431-1060

815-740-5160 ext. 2743





In Cook County, to obtain a Chicago Police Department rap sheet, the client can go to the

Chicago Police headquarters, 3510 South Michigan Avenue, between the hours of 8 a.m. and

noon, Monday through Friday. The fee for non-fingerprint conviction information is $16, and the

fee for fingerprint conviction information is $20. The client should return several days later to

pick up the documents. Information request forms can be ordered from the ISP website,

www.isp.state.il.us/services/uciaformreq.cfm. For information on how to clear mistakes in the rapsheet, see www.ides.state.il.us/exoffenders/rap.asp. See also the Legal Action Center’s manual,

HOW TO GET AND CLEAN UP YOUR ILLINOIS RAP SHEET, www.lac.org/doc_library/lac/

publications/050542_il_rap1.pdf.

Clients and their lawyers should be prepared to help correct or clear any inaccuracies in the

record. Not all background agencies update their records promptly. The client may want to

address any inaccuracies in the criminal records through a letter of explanation that can be

provided when seeking employment. Reviewing the rap sheet is also helpful to prepare for job

interviews, as many times people forget past convictions.

While accuracy, honesty, and the chance to discuss the record are critical aspects of the

employment process, the record ultimately can be tested and determined definitively only byaccessing and reviewing one’s court dispositions to assess whether these are consistent with the

rap sheet.

Court dispositions are found in the clerk’s office in the county where the case was tried. For

all Cook County cases, any clerk’s office will suffice (Room 1006 at the Daley Center, 5th Floor

at 26th Street, or any of the suburban district clerk’s offices — Skokie, Rolling Meadows,

Maywood, Bridgeview, and Markham). The cost is $9 per disposition, and the clerks may charge

a fee to look up the information, but there are free public access terminals that an individual can

use. All clerk’s offices are open 8:30 a.m. – 4:30 p.m.

For cases outside of Cook County, the client must go to the clerk of the court (at the

courthouse) in the county where they were convicted. Costs vary but approximate the Cook County fees. A person may call a clerk’s office to have information sent to them without making

the actual trip, but there are customarily additional fees for that service. Whether in person or by

phone, the client or lawyer should be sure to request a “certified disposition.”

It is not uncommon that a client is unclear as to where his or her conviction occurred, in

which case they should obtain an Illinois State Police (ISP) conviction report. The client should

call the ISP at 815-740-5160 to obtain information on where to get fingerprinted locally, so that

they may then access their information. The ISP contracts with private vendors to conduct the

fingerprinting, the charge for which is generally $20 – 30.

If a person’s conviction is from Chicago and before 1985, then a Chicago Police Department

rap sheet is necessary. The Cook County Clerk’s electronic system goes back only to 1984 or

1985, so the only way to know about earlier convictions and arrests is to get the rap sheet from

the Chicago Police headquarters, as referenced above.





2. [6.4] Impact of Criminal Record on Specific Industries

During the pretrial stage, a client should give serious and careful thought to the impact

various sentencing options may have on his or her future employment, particularly if he or she is

considering a plea bargain. Because it is a complex matter to obtain information about these

options, it is recommended that the public defender or criminal lawyer assist with gathering theinformation. If an occupational license is required for the client’s profession, then licensing and

legislative guidelines must be assessed, as well as licensing waiver guidelines. For example, a

person with a criminal record is excluded from having a barber’s license, but the Illinois

Department of Financial and Professional Regulations has a licensing waiver process, available to

anyone with a criminal history, no matter the number or type of offenses. Additionally, the State

of Illinois has a certificate of relief from disability that assists with a waiver process for those

with no more than two felony convictions. See Chapter 8.

If a business is regulated by the insurance industry, then insurance regulations should be

checked. For example, major insurance providers of the trucking industry typically impose

standards against hiring people with drug possession or DUI charges. Also, federal legislation

such as the Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135, regulates hiringcriteria of specific occupation types and subtypes. The transportation of chemicals has an impact

on certain trucking jobs. State laws and city ordinances should also be reviewed. The highly

regulated healthcare industry excludes people with various offenses from being within a certain

distance of patients in nursing homes. Furthermore, while an employment position may be free of

legislative, administrative, and insurance regulations, it is possible that the industry itself has a

common practice to exclude people who have committed specific offenses. This is most likely to

occur when a few major employers dominate an industry. In such cases, it is relatively easy to

contact the human resource division of those employers and request copies of their hiring policies

or discuss the policies with the human relations officer.

3. [6.5] Discussing Criminal History with Employers

It is common for clients with criminal records to consider concealing or lying about their

criminal history. Employers emphatically recommend that applicants be honest. Employers are

more likely to hire someone who has discussed a criminal record than someone who has withheld

or lied about this information — information that is readily available through a criminal

background check. A client who has failed to disclose or lied is in a worse position (demotion or

termination) than one who has had a discussion during the hiring process. Discovery can come

about during a routine check run due to a policy change, an employer change, or a buyout or

when promotional paperwork is submitted for the personnel file.

The client should practice talking about his or her criminal history. The client should not

“over-discuss” his or her criminal history or prison experiences. For example, a client who

discusses a ten-year period in which there was a battle with addiction and involvement with the

criminal justice system is probably more acceptable to a potential employer than an applicant who

enumerates each sentence and elaborates on every prison term. A client who can explain what

was learned from the experience and imparts a sincere determination to be successful is more

likely to make a favorable impression. The client also should be prepared to talk about any work





history or skills training gained in prison. Public defenders and criminal lawyers may be of great

assistance to their clients by helping prepare letters of explanation regarding criminal histories.

When well done, such a letter may also aid or even eliminate the need for lengthy discussion

during the interview.

The Chicago Jobs Council recommends that a client be prepared to answer the followingquestions:

a. What type of crime was committed?

b. How long ago was the conviction?

c. Are you getting assistance from an organization? If so, are there supports available?

d. Have you been drug tested recently?

e. Have you received supportive services, such as treatment or conflict resolution?

f. What are your employment-related assets, including employment history, educational

history, degrees and awards earned, and military service?

For additional information, go to the website for the Illinois Department of Employment

Security, www.ides.state.il.us, and click on “Re-Entry Services” in the menu bar or go to

www.ides.state.il.us/exoffenders/default.asp.

Clients should also understand that the topics to be discussed with Illinois employers include

only convictions that are not expunged or sealed.

Except with respect to law enforcement agencies, the Department of

Corrections, State’s Attorneys, or other prosecutors, and as provided in Section 13

of this Act, an expunged or sealed record may not be considered by any private or

public entity in employment matters, certification, licensing, revocation of

certification or licensure, or registration. 20 ILCS 2630/12(a).

Under the Illinois Human Rights Act, 775 ILCS 5/1-101, et seq., it is illegal for employers,

employment agencies, or labor organizations to ask about arrests or criminal history record

information that has been expunged or sealed, nor should clients offer this information. See

www.state.il.us/dhr/index.htm for more specific information on the Illinois Human Rights Act.

However, given that outdated or erroneous information is often available on the Internet via

background check companies, clients should determine whether expunged or sealed convictions

are shown and then decide whether to discuss that information with potential employers.

The job application process is further complicated because Illinois law does not state that it is

illegal for employers to ask, “Have you ever been arrested?” Potential employers may legally ask

about arrests even though they are permitted to receive information only on convictions in a

background check. The practitioner should advise clients on this matter before they fill out job





applications. If a client has been asked questions that are not legal or has been denied

employment on the basis of an arrest that did not lead to conviction, a complaint can be filed with

the Illinois Department of Human Rights. Additional information can be obtained at

www.state.il.us/dhr/index.htm.

Certain events during the 96th General Assembly in the Illinois legislature illustrate thechallenges in this area of criminal justice reform. The legislature failed to pass proposed

amendments to the Illinois Criminal Identification Act, 20 ILCS 2630/5.2, that would have sealed

records of (a) arrests or felony charges that resulted in acquittal or dismissal or did not result in

convictions and (b) convictions that were reversed or vacated.

4. [6.6] Hiring Incentives Available to Employers

There are a few benefits available to employers to counteract the stigma of a criminal record

and to encourage hiring. Clients should be aware of these incentives, discussed in §§6.7 – 6.11

below, because many employers are not. The ability to discuss these incentives or provide hard

copy information may provide a client with the competitive edge needed to prompt the offer of a

job.

a. [6.7] Immunity for Employers Hiring Employees with a Certificate of Rehabilitation

P.A. 96-852 (eff. Jan. 1, 2010) amended 730 ILCS 5/5-5.5-5 to provide that any employer

that hires a person with a criminal record who has obtained a certificate of rehabilitation after

January 1, 2010, is immune from any criminal or civil liability that can possibly arise from the

subsequent act or omission of the employee once employed. Certificates of rehabilitation include

both a certificate of relief from disabilities and a certificate of good conduct. This immunity for

employers regarding the holder of either type of certificate of rehabilitation includes potential

liability for negligent hiring or supervision and all forms of vicarious and respondeat superior

liability. This is a major advancement in the law. To date, Illinois is the only state that provides

such protection to employers as a hiring incentive.

For more on the new Illinois law of certificates of rehabilitation and the significant expansion

of eligibility, see Chapter 8.

b. [6.8] Tax Incentives

The work opportunity tax credit is a federal income tax credit. It is available to employers

who hire a person who has been convicted of a felony, was hired within one year of the release

date, is participating in a “work release” program, and is a member of a low-income family. This

credit can reduce an employer’s federal income tax liability by as much as $2,400 per qualified

new worker. Information can be found at www.ides.state.il.us/employer/ui-credits.asp. The client

should take IRS Form 5884 to the interview so that it is readily available should the employer

show interest. This form can be downloaded from the website above.





Beginning January 1, 2007, the State of Illinois provides a tax credit to employers who hire

individuals released from an Illinois Department of Corrections adult facility within the previous

12 months. 30 ILCS 500/45-70. See also www.saferfoundation.org/iewpage.asp?id=35&storyid=

1039041973&pagetype=story. This state tax credit will reduce an employer’s state tax liability by

as much as $600 per qualified new worker.

c. [6.9] Bonding

The free Federal Bonding Program, which operates under the auspices of the United States

Department of Labor, provides individual fidelity bonds of at least $5,000 to employers for an

initial period of six months with the opportunity to request a renewal for an additional six months.

These bonds insure employers for dishonesty or theft by employees who have a criminal record.

The bond is effective immediately following certification, and the employer is not required to fill

out forms or meet a deductible. These fidelity bonds are a highly useful resource. “Since the

program’s inception in 1966, approximately 43,000 bonds have been issued with a 99 percent

success rate.” Illinois Department of Employment Security, Fidelity Bonding: Insurance for Your

Employees (Apr. 2009), www.ides.state.il.us/pdf/employers/fidelitybond.pdf.

d. [6.10] Other Financial Assistance

Other training and tax incentives are available to employers who hire low-income people with

criminal records. For example, the enterprise zone job tax credit, 35 ILCS 5/201(g), is available

for businesses in the 95 Illinois enterprise zones. TIFWorks Chicago provides grants to employers

to cover job training costs for Chicago residents. See www.cityofchicago.org/mowd. The

Workforce Investment Act of 1998, Pub.L. No. 105-220, 112 Stat. 936, provides reimbursement

to employers for on-the-job training, as well as eligible employee relocation assistance. For more

information on these incentives and how to access them, see Illinois Department of Employment

Security, Winning Strategies (Apr. 2007), www.ides.state.il.us/exoffenders/win_strat_eng.pdf.

e. [6.11] Support Organizations

Information gathered from various local and national focus groups indicates that employers

consider the provision of or access to an agency or organization that sponsors or supports the

individual the strongest incentive to hiring people with criminal records. Employers report that

organizations like the Safer Foundation (www.saferfoundation.org) provide help by screening,

matching, and supporting employees, thereby increasing the retention success rate. Additionally,

employers like having a “go-to” group to contact if issues beyond job training arise. Often, such

organizations help by providing or subsidizing transportation, work equipment, and work clothing

as well as dealing with issues outside the workplace, such as parole, child-care issues, etc., that

could negatively influence employment.

5. [6.12] Disincentive to Employers — Employer Liability

Employers are often concerned about being sued for negligent hiring ( i.e., the failure to use

reasonable care in the hiring process). As stated in §6.7 above, the law has changed as of January

1, 2010. Employers that hire employees who have obtained a certificate of rehabilitation (either a





certificate of relief from disabilities or a certificate of good conduct or both) are now immune

from all forms of hiring liability, including negligence. This immunity for employers regarding

the holder of either type of certificate of rehabilitation includes potential liability for negligent

hiring or supervision and all forms of vicarious and respondeat superior liability. This is a major

advancement in the law. To date, Illinois is the only state that provides such protection to

employers as hiring incentive.

Now, with the change in Illinois law, only employers who hire employees who do not have a

certificate of rehabilitation issued after January 1, 2010, have any risk whatsoever for negligent

hiring or supervision, and the risk is statistically minimal.

Negligent hiring is determined by two key elements: (a) whether the criminal activity was

foreseeable and (b) whether the employee was incompetent or unfit ( i.e., the employee possessed

personal or physical characteristics that created an unreasonable risk to third parties) for the work

assigned.

According to the Illinois Department of Employment Security website, www.ides.state.il.us/

exoffenders/work_employers.asp, employers are legally required to give full consideration to thefollowing three factors when determining whether to hire a person with a criminal record:

a. the nature and gravity of the crimes;

b. the time that has passed since the conviction or completion of sentence; and

c. the nature of the job being sought.

The key to determining liability is usually whether the employer could have foreseen the

crime — specifically, whether the employee had a history or propensity for harmful behavior and,

most importantly, whether the employer knew or should have known of the employee’s

propensities. Ordinarily, an employer’s reasonable efforts to check and consider background willsatisfy the legal requirements and eliminate the risk of liability for negligent hiring by the

employer. Similar reasonable precautions exercised during the course of employment would

protect against liability for negligent supervision.

As of the first printing of this chapter, according to the research of the Safer Foundation and

its Certificates Implementation Advisory Group, in Illinois, only four cases of negligent hiring of

persons with criminal records had been filed since January 1, 2000. Two of these cases were

decided in favor of the plaintiff, and two in favor of the defendant. Despite the low number of

cases brought in Illinois, the initial research shows that employers have a fear of liability, or say

they do, when an applicant has a history of violence, and headline cases that involve large

amounts of money deter employers from hiring people with records.

6. [6.13] Employment Rights of People with Criminal Records

Employers must follow the law with respect to employment of people with criminal records.

Unfortunately, a number of people with records have reported that some employers offer them





employment under illegal conditions, e.g., paying less than minimum wage, requiring unregulated

overtime, or subjecting them to harassment. These practices are unethical and illegal, and any

such incident should be reported as follows:

a. violation of minimum wage or overtime regulations to the United States Department of

Labor, information at www.dol.gov/compliance/guide/minwage.htm#emplrights;

b. unsafe working conditions to the Occupational Safety and Health Administration

(OSHA), information at www.osha.gov/as/opa/worker/complain.html; or

c. racist/harassing conditions to the Illinois Department of Human Rights, information at

www.state.il.us/dhr.

7. Preparation for Job Market

a. [6.14] Getting Assistance

Many organizations specialize in providing job preparedness and placement assistance for people who have been out of the workforce, including displaced and underemployed workers.

Some of these organizations specialize in working with people with criminal records. The

practitioner can help a client prepare for the workforce by directing him or her to organizations

such as these. A good starting point for finding help with job preparedness and placement is the

website of the Illinois Department of Employment Security, www.ides.state.il.us/worknet/

default.asp, or by calling 888-337-7234. A search on the above website by ZIP code or city will

provide information on the closest “one-stop service centers” to be contacted for direct or referral

assistance for a client seeking employment. It is best to select a service provider that can assist

with

1. developing an updated resume and letters of recommendation;

2. preparing the criminal history letter and practicing how to discuss the criminal history;

3. preparing soft skills (skills that influence how people interact with each other such as

effective communication, problem solving, listening, etc.);

4. connecting with employers who hire people with records;

5. training in job search skills; and

6. training assistance with hard skills (skills that have to do with technical ability to do a

job).

b. [6.15] Civic Engagement

Civic engagement can also be helpful to people as they prepare for reentering (or in some

cases, entering for the first time) the workforce. A client who has been involved in community





service can offer evidence of job skills, a work ethic, and a sense of responsibility. This shows a

willingness to serve and also provides practical experience and may garner a recommendation to

an employer.

c. [6.16] State Identification

Employers do require state identification at the start of employment, as do some “helping”

organizations. Many times, clients lose their identification during their prison stay, and law

enforcement agencies often destroy identification. Public defenders and criminal lawyers can

assist their clients by informing them of the importance of state identification and helping them

locate a safe place to store their identification prior to the trial or incarceration.

The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub.L. No. 108-

458, 118 Stat. 3638, §7213(a)(1)(B), codified at 42 U.S.C. §405(a)(1)(B) note, requires that the

Social Security Administration establish minimum standards for verification of documents or

records submitted by applicants to establish eligibility for original or replacement social security

cards and should be reviewed for compliance. In accordance with this requirement, effective

December 17, 2005, the Social Security Administration issued new requirements for identitydocuments presented with original and replacement social security number applications. 20

C.F.R. §422.107.

Generally, acceptable identity documents must show the applicant’s name, identifying

information, and a recent photograph. If the applicant is a United States citizen, the applicant

must present (1) a United States driver’s license, (2) a state-issued non-driver identity card, or (3)

a United States passport. If the applicant does not have these documents or cannot get a

replacement for them within ten days, the Social Security Administration will ask to see other

documents, including an employee identification card, a school identification card, a health

insurance card (not a Medicare card), a United States military identification card, or an adoption

decree. Office of the Inspector General, Social Security Administration, The Social Security

Administration’s Program for Issuing Replacement Social Security Cards to Prisoners (July2006), www.ssa.gov/oig/ADOBEPDF/audittxt/A-08-06-16025.htm (case sensitive).

To obtain a new or replacement social security card, one must fill out Social Security

Administration Form SS-5. The form is available at local Social Security offices and at

www.ssa.gov/online/ss-5.html. To obtain a new card, two documents with proof of age,

citizenship or lawful alien status, and name (e.g., birth certificate and school record) are required.

To obtain a replacement card, one identifying document is required. To change one’s name,

documentation showing the old name and the new name is required. Originals or copies certified

by the custodian of the record must be shown. Photocopies and notarized copies are not accepted.

Those born outside of the United States must show proof of U.S. citizenship or lawful alien

status.

Illinois offers three different types of official identification cards beyond the driver’s license.

They are an under-65 identification card, a senior identification card, and a disabled person

identification card. All types of identification cards require that the individual apply in person at a

driver services facility with acceptable proofs of identity.





The senior card is available for free and has no expiration date. It provides proof of identity in

all the same situations in which one would show an Illinois driver’s license. The under-65

identification card is available to anyone who wants a proof of identity but who does not have, is

not old enough for, or does not want an Illinois driver’s license. It is also a good alternative form

of identification if one’s license has been suspended or revoked. This type of card is good for five

years. Current fees for the under-65 identification card are $20 for a new identification card, $10for a corrected identification card, and $20 for a duplicate identification card. The disabled

person’s identification card is a photo identification that also lists the classification code of the

person’s disability, which some may feel violates their privacy. To obtain this card, a doctor must

fill out the application. The identification card is free but has to be renewed every five years.

Illinois requires at least four pieces of documentation for a first-time applicant for an

identification card. All listed pieces of identification must be originals, not copies. In some cases,

notarized or certified copies may be accepted, but this is at the discretion of the examining

employee. Any document that looks suspicious will not be accepted. A detailed menu of what the

State of Illinois considers to be acceptable proofs of identity is located on its website. Information

on obtaining an Illinois identification card can be found at www.cyberdriveillinois.com/

departments/drivers/idcards.html.

d. [6.17] Employment Information Sources

Additional information about employment issues and assistance can be located at the

following sources:

• Chicago Jobs Council — www.cjc.net

• Illinois Department of Employment Security — www.ides.state.il.us

• National HIRE Network — www.hirenetwork.org

• Illinois Department of Financial and Professional Regulation — www.idfpr.com

• Illinois Human Rights Commission — www.state.il.us/ihrc

• Illinois Legal Advocate — www.illinoislegaladvocate.org

• Safer Foundation — www.saferfoundation.org

• U.S. Equal Employment Opportunity Commission — www.eeoc.gov

III. HOUSING

A. [6.18] Exclusionary Policies

Exclusionary housing policies are one of the most significant barriers that people with

criminal records face in their efforts to reenter general society. Typically, people leaving prison





and jail are categorized as among those with the most desperate housing needs. Studies show that

15 to 27 percent of incarcerated individuals expect to be homeless upon release, and up to 66

percent without appropriate housing recidivate within one year of release. See Anthony Lowery,

Housing People with Criminal Records, Housing Action Illinois 2005 Convention (Nov. 14 – 15,

2005), available at www.docstoc.com/docs/45652521/housing-people-with-criminal-records.

Federally subsidized housing is available to millions of low-income people who could not

otherwise afford housing. However, federal policy or legislation excludes countless people with

criminal records from housing support. Exclusionary federal housing policies imposed by the US

Department of Housing and Urban Development (HUD) and local discretionary exclusions

practiced by the Chicago Housing Authority (CHA) constitute a major roadblock for people with

criminal records who wish to obtain Housing Choice Vouchers (Section 8). See Anti-Drug Abuse

Act of 1988, Pub.L. No. 100-690, 102 Stat. 4181; Housing Opportunity Program Extension Act

of 1996, Pub.L. No. 104-120, 110 Stat. 834; Quality Housing and Work Responsibility Act of

1998, Pub.L. No. 105-276, 112 Stat. 2461. The exclusion of people with criminal records from

public housing, often referred to as the “one-strike policy,” was developed in the 1990s in an

attempt to address drug trafficking, violent crime, and disorder in public housing, particularly in

high-risk urban housing projects.

The Housing Opportunity Program Extension Act bans three categories of people from

admission to public housing: (1) those who have been convicted of methamphetamine production

on the premises of federally funded housing; (2) those subject to lifetime registration

requirements under state sex offender registration programs; and (3) those who are currently

using illegal drugs, regardless of whether they have been convicted of any drug-related offense.

Additionally, Public Housing Authorities (PHAs) have the discretion to deny admission to

three additional categories of applicants: (1) those who have been evicted from public housing

because of drug-related criminal activity (for a period of three years following eviction); (2) those

who engaged in a pattern of disruptive alcohol consumption or illegal drug use, regardless of how

long ago such conduct occurred; and (3) those who have engaged in any drug-related criminalactivity, any violent criminal activity, or any other criminal activity, if a PHA deems the applicant

a safety risk. Current research indicates that these discretionary categories are used, in practice, to

exclude a broad segment of people with criminal records without establishing any reasonable

basis that they pose a risk. See Safer Foundation, Housing Admissions Standards for People with

Criminal Records, available at www.docstoc.com/docs/45644142/housing-admission-standards-

for-people-with-criminal-records.

There is no doubt that some people with criminal records do actually pose a risk and may be

unsuitable for public housing facilities. However, housing policies are so arbitrary, broad, and

harsh that they can exclude people who currently are law-abiding citizens or who may never have

presented a risk in the first place. Many PHAs do not allow for case-by-case determinations that

would take into account an applicant’s record and rehabilitation. In the five years preceding

publication of this handbook, 3.5 million people were classified as ineligible for public housing

because of their criminal records. Anthony Lowery, Housing People with Criminal Records,

Housing Action Illinois 2005 Convention (Nov. 14 – 15, 2005), available at

www.docstoc.com/docs/45652521/housing-people-with-criminal-records.





The lack of access to public or subsidized housing for people with criminal records in Illinois

mirrors that of the nation. In an Illinois Housing Development Authority survey conducted for the

Governor’s Statewide Community Safety and Reentry Work Group, only a handful of the state’s

110 PHAs reported considering mitigating circumstances (such as rehabilitation and length of

time since conviction) prior to denying people with criminal records admission to housing. See

Safer Foundation, Housing Admissions Standards for People with Criminal Records, availableat www.docstoc.com/docs/45644142/housing-admission-standards-for-people-with-criminal-

records. For example, the Chicago Housing Authority (CHA) only considers arrests that led to

conviction in its admission criteria. The CHA does not make individual determinations about an

applicant’s eligibility based on the relevance of his or her criminal record; instead, there is a five-

year bar for all felony convictions. Families in public housing who allow a family member with a

criminal record to move in are in jeopardy for violating this provision and may be removed from

public housing. The CHA does have an appeal process for such circumstances.

B. [6.19] Housing Issues To Review with Client

Unfortunately, housing support for people with criminal records is extremely limited. Most

housing support comes from friends or family members. The practitioner can help clientsnavigate the housing system by first establishing a clear picture of a client’s probation or parole

conditions. Often, cohabitation with other parolees or with those having gang affiliations goes

against parole orders and could put a client in jeopardy of violating parole.

The attorney should determine the following when advising a client:

1. the local housing authority’s rules for admissions or criminal records policies (A

complete listing of Public Housing Authorities in Illinois may be found at www.hud.gov/

offices/pih/pha/contacts/states/il.cfm. Chicago’s Housing Authority may be found at

www.thecha.org.);

2. whether a client is disqualified due to his or her criminal record and, if so, whether thereis an appeal policy;

3. whether a client is qualified for public housing and, if so, the process to access such

housing and whether there is a waiting list;

4. the accessibility of other housing providers in the area (The Salvation Army, Catholic

Charities, Public Action to Deliver Shelter, Inc. (PADS), and other community and faith-

based groups have made great efforts to provide transitional housing for people with

criminal records and permanent housing for people with criminal records and physical or

mental health disabilities.); and

5. whether to contact the parole officer if the client is homeless and cannot identify safe

housing as the State of Illinois provides temporary housing for homeless parolees.





C. [6.20] Locating Housing Providers

For assistance in identifying local housing providers or information on effecting change in

this arena, please contact one of the following statewide associations:

•

Corporation for Supportive Housing (for Illinois)205 West Randolph, 23rd Floor

Chicago, IL 60606

Phone: 312-332-6690

Fax: 312-332-7040

E-mail: [email protected]

• Supportive Housing Providers Association

212 East Ohio Street, 5th Floor

Chicago, IL 60611

Phone: 773-359-0123

Fax: 773-935-4662


• Illinois Community Action Association

3435 Liberty Drive

Springfield, IL 62704

Phone: 217-789-0125

Fax: 217-789-0139

www.icaanet.org/contact

• Housing Action Illinois

11 East Adams Street, Suite 1501

Chicago, IL 60603

Phone: 312-939-6074Fax: 312-939-6822


IV. [6.21] EDUCATION

People in recovery from drug and alcohol addiction and others with past drug convictions

may obtain student aid under 20 U.S.C. §1091(r)(1). As of July 1, 2006, students who were

convicted of drug crimes prior to their enrollment and application for federal financial aid are

eligible for aid and will no longer be subject to a ban that delays or denies federal financial

assistance. Id. The federal financial aid ban will apply only to students who are convicted of a

drug offense while they are in school and receiving federal financial assistance. See Legal Action

Center, Legal Action Center Lauds Change in the Law That Will Increase Student Financial Aid

Eligibility for Individuals with Prior Drug Convictions, Including Thousands of People in

Recovery from Drug Addiction (Feb. 28, 2005), www.lac.org/doc_library/lac/news-alerts/

HEA_PRESS%20RELEASE%20FEBRUARY%202006.pdf (case sensitive).





It is critical for clients to be advised of this change in the law even before they visit financial

aid offices, as some school officers may not be aware of it. Federal financial aid can be obtained

to cover higher education costs for community colleges, four-year colleges, and graduate schools.

V. [6.22] PUBLIC BENEFITS RESTRICTIONS

It is important that clients know what their eligibility status and rights to public benefits are

before applying for them. Local benefit office staff may not be fully informed about eligibility for

applicants with a criminal record, and consequently, a client who is not well informed may be

incorrectly turned down.

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. No.

104-193, 110 Stat. 2105, permanently bars anyone with a drug-related felony conviction from

receiving federal cash assistance and food stamps during the individual’s lifetime. Drug-related

felonies are those involving the use, possession, or distribution of illegal substances. The drug

felon ban does not apply to Medicaid or to non-federal assistance that a state may provide through

its own general program.

Under federal law, states are given an opportunity to opt out or modify the drug felon bar. 21

U.S.C. §862a(d)(1)(A). Illinois has chosen to opt out fully from the lifetime bar on the receipt of

public assistance for individuals with drug felony convictions. 305 ILCS 5/1-10. Therefore, in

Illinois, some individuals with a criminal record are eligible to receive Temporary Assistance for

Needy Families (TANF), Medicaid, and food stamp benefits. However, eligibility restrictions do

apply. See Chicago Jobs Council, Get the Facts! Public Benefits that Can Help You with Basic

Living Costs (3d ed. 2006), www.cjc.net/docs/GetTheFacts-EN-06-2.pdf (case sensitive), for

more detailed information.

Abbreviated information regarding eligibility can be found in §§6.23 – 6.26 below.

A. [6.23] Temporary Assistance for Needy Families (TANF)

A client who has been convicted of a Class 1 or Class X drug-related felony after August 22,

1996, will not be able to get TANF cash assistance. However, a person with a criminal record can

still obtain TANF assistance for his or her dependent children. See www.dhs.state.il.us/

page.aspx?item=30358.

If a client is convicted of any other drug-related felony, he or she cannot get TANF cash

assistance for two years from conviction. This does not apply if the person has completed or is

involved in a treatment or aftercare program. The attorney needs to contact the local office to

determine what constitutes proof of treatment. Id.

A client convicted of public benefits fraud (aid for the aged, blind, or disabled; TANF; or

transitional assistance) is banned from receiving TANF benefits for ten years from conviction. Id.

Persons who are fleeing felons or who are in violation of parole or probation are ineligible for

TANF benefits. Id.





B. [6.24] Medicaid

Persons convicted of public benefits fraud are banned from receiving Medicaid benefits for

ten years. See www.reentryillinois.net/GettingBenefits.html (case sensitive).

Persons who are fleeing felons or who are in violation of parole or probation are ineligible for Medicaid benefits. Id.

C. [6.25] Food Stamps

Persons convicted of public benefits fraud are banned from receiving food stamp benefits for

ten years. See www.reentryillinois.net/GettingBenefits.html (case sensitive).

Persons who are fleeing felons or who are in violation of parole or probation are ineligible for

food stamp benefits. Id.

D. [6.26] Unemployment Insurance

Eligible workers, including people with criminal records, who become unemployed and meet

all requirements set forth in the Unemployment Insurance Act, 820 ILCS 405/100, et seq., may

receive benefits for the maximum number of weeks payable under the law, unless the worker

finds employment or becomes ineligible through failure to meet a requirement. While there are no

restrictions to unemployment benefits based on ex-offender status, eligibility requires recipients

to be actively seeking work, to be able and available to work, to be unemployed through no fault

of their own, and to have received at least $1,600 of covered employment during the first four of

the last five completed quarters (with $440 earned outside the quarter with the highest earnings

during that period). See www.ides.state.il.us/resources/default.asp. Application for benefits can

be made (1) at www.ides.state.il.us or (2) in person at a local IDES office or Illinois Employment

and Training Center.

VI. [6.27] MILITARY SERVICE

In most cases, those with felony convictions will be excluded from military service in all

branches of the armed forces. However, exceptions may be allowed. Individual service branches

may also have recruiting policies that forbid enlistment of persons with specific offenses,

including misdemeanors. See Veronica Rose, Military Service and Misdemeanor Convictions

(July 7, 2005), www.cga.ct.gov/2005/rpt/2005-r-0556.htm.

VII. [6.28] VOTING AND POLITICAL ENGAGEMENT

Many of the barriers to employment and housing will not be removed until legislative efforts

are successfully implemented. It is critical that people with records and their families and friends

voice their opinions through the political process. In Illinois, unlike some other states, people

with records can vote during and after the completion of probation or parole. See 730 ILCS 5/5-5-

5; ILL.CONST. art. III, §2.





Attorneys need to advise clients to

a. complete and return a voter’s registration card;

b. be informed about the political issues that most affect them and their community;

c. vote in every election;

d. visit, telephone, e-mail, or write to their elected officials, voicing their concerns about the

barriers and exclusions specific to people with a criminal record; and

e. volunteer in action-oriented groups that address issues of importance to people with

criminal records.

CARRE (Coalition of Advisors to Reduce Recidivism through Employment), convened by

the Safer Foundation, is an example of the type of activist group mentioned above. This group of

more than 90 members is comprised of advocates, people with criminal records, employers, and

representatives from government bodies, community organizations, and faith-based organizationswho are working together to reduce barriers to and increase incentives for the employment of

people with criminal records. Since its inception in June 2001, CARRE has

a. hosted yearly policy conferences and quarterly strategy meetings to evaluate the best

practices and to devise strategies for policy initiatives;

b. produced and disseminated seven policy papers to a variety of county, state, federal, and

community stakeholders;

c. conducted or participated in public education and advocacy campaigns leading to the

enactment of new policies and policy reform, legislative action, the creation of

employment programs, the establishment of public hiring standards, and the offering of hiring incentives and immunities for employers (P.A. 96-852 (eff. Jan. 1, 2010); P.A. 93-

210 (eff. July 18, 2003); P.A. 93-211 (eff. Jan. 1, 2004); P.A. 93-207 (eff. Jan. 1, 2004);

P.A. 93-208 (eff. July 18, 2003); P.A. 93-1084 (eff. June 1, 2005); Cook County reentry

employment program, policy reform of the City of Chicago’s hiring practices); and

d. in collaboration with the Illinois Department of Employment Security, produced and

disseminated brochures statewide, providing information about available government

funds, programs, and services available to support the hiring, training, and retention of

people with criminal records.

More information about the Safer Foundation and CARRE is available through the Safer

Foundation’s policy group at www.saferfoundation.org or direct inquiries to Anthony Lowery,

Director of Public Policy and Advocacy, [email protected], or the author,

Michael Sweig, JD, Public Policy Liaison, [email protected].

beyond legal mechanisms — employment, housing, and other related critical support

Documents