102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB2136

 

Introduced 2/26/2021, by Sen. Jacqueline Y. Collins

 

SYNOPSIS AS INTRODUCED:
 
20 ILCS 2630/5.2
725 ILCS 5/122-1  from Ch. 38, par. 122-1

    Amends the Criminal Identification Act. Provides that the Illinois State Police and all law enforcement agencies within the State shall automatically expunge all criminal history records of a conviction for felony prostitution committed prior to the effective date of the amendatory Act. Establishes timelines for the automatic expungement of the records based on the date of the creation of the records. Amends the Code of Criminal Procedure of 1963. Provides that a petition for post-conviction relief may be filed by a person confined, or subject to being confined by the State, local, or federal government as a result of a State criminal conviction (rather than only by persons imprisoned in the penitentiary). Strikes a provision concerning expungement procedures for drug tests. Effective immediately.


LRB102 17328 RJF 22818 b

 

 

A BILL FOR

 

SB2136LRB102 17328 RJF 22818 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Identification Act is amended by
5changing Section 5.2 as follows:
 
6    (20 ILCS 2630/5.2)
7    Sec. 5.2. Expungement, sealing, and immediate sealing.
8    (a) General Provisions.
9        (1) Definitions. In this Act, words and phrases have
10    the meanings set forth in this subsection, except when a
11    particular context clearly requires a different meaning.
12            (A) The following terms shall have the meanings
13        ascribed to them in the Unified Code of Corrections,
14        730 ILCS 5/5-1-2 through 5/5-1-22:
15                (i) Business Offense (730 ILCS 5/5-1-2),
16                (ii) Charge (730 ILCS 5/5-1-3),
17                (iii) Court (730 ILCS 5/5-1-6),
18                (iv) Defendant (730 ILCS 5/5-1-7),
19                (v) Felony (730 ILCS 5/5-1-9),
20                (vi) Imprisonment (730 ILCS 5/5-1-10),
21                (vii) Judgment (730 ILCS 5/5-1-12),
22                (viii) Misdemeanor (730 ILCS 5/5-1-14),
23                (ix) Offense (730 ILCS 5/5-1-15),

 

 

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1                (x) Parole (730 ILCS 5/5-1-16),
2                (xi) Petty Offense (730 ILCS 5/5-1-17),
3                (xii) Probation (730 ILCS 5/5-1-18),
4                (xiii) Sentence (730 ILCS 5/5-1-19),
5                (xiv) Supervision (730 ILCS 5/5-1-21), and
6                (xv) Victim (730 ILCS 5/5-1-22).
7            (B) As used in this Section, "charge not initiated
8        by arrest" means a charge (as defined by 730 ILCS
9        5/5-1-3) brought against a defendant where the
10        defendant is not arrested prior to or as a direct
11        result of the charge.
12            (C) "Conviction" means a judgment of conviction or
13        sentence entered upon a plea of guilty or upon a
14        verdict or finding of guilty of an offense, rendered
15        by a legally constituted jury or by a court of
16        competent jurisdiction authorized to try the case
17        without a jury. An order of supervision successfully
18        completed by the petitioner is not a conviction. An
19        order of qualified probation (as defined in subsection
20        (a)(1)(J)) successfully completed by the petitioner is
21        not a conviction. An order of supervision or an order
22        of qualified probation that is terminated
23        unsatisfactorily is a conviction, unless the
24        unsatisfactory termination is reversed, vacated, or
25        modified and the judgment of conviction, if any, is
26        reversed or vacated.

 

 

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1            (D) "Criminal offense" means a petty offense,
2        business offense, misdemeanor, felony, or municipal
3        ordinance violation (as defined in subsection
4        (a)(1)(H)). As used in this Section, a minor traffic
5        offense (as defined in subsection (a)(1)(G)) shall not
6        be considered a criminal offense.
7            (E) "Expunge" means to physically destroy the
8        records or return them to the petitioner and to
9        obliterate the petitioner's name from any official
10        index or public record, or both. Nothing in this Act
11        shall require the physical destruction of the circuit
12        court file, but such records relating to arrests or
13        charges, or both, ordered expunged shall be impounded
14        as required by subsections (d)(9)(A)(ii) and
15        (d)(9)(B)(ii).
16            (F) As used in this Section, "last sentence" means
17        the sentence, order of supervision, or order of
18        qualified probation (as defined by subsection
19        (a)(1)(J)), for a criminal offense (as defined by
20        subsection (a)(1)(D)) that terminates last in time in
21        any jurisdiction, regardless of whether the petitioner
22        has included the criminal offense for which the
23        sentence or order of supervision or qualified
24        probation was imposed in his or her petition. If
25        multiple sentences, orders of supervision, or orders
26        of qualified probation terminate on the same day and

 

 

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1        are last in time, they shall be collectively
2        considered the "last sentence" regardless of whether
3        they were ordered to run concurrently.
4            (G) "Minor traffic offense" means a petty offense,
5        business offense, or Class C misdemeanor under the
6        Illinois Vehicle Code or a similar provision of a
7        municipal or local ordinance.
8            (G-5) "Minor Cannabis Offense" means a violation
9        of Section 4 or 5 of the Cannabis Control Act
10        concerning not more than 30 grams of any substance
11        containing cannabis, provided the violation did not
12        include a penalty enhancement under Section 7 of the
13        Cannabis Control Act and is not associated with an
14        arrest, conviction or other disposition for a violent
15        crime as defined in subsection (c) of Section 3 of the
16        Rights of Crime Victims and Witnesses Act.
17            (H) "Municipal ordinance violation" means an
18        offense defined by a municipal or local ordinance that
19        is criminal in nature and with which the petitioner
20        was charged or for which the petitioner was arrested
21        and released without charging.
22            (I) "Petitioner" means an adult or a minor
23        prosecuted as an adult who has applied for relief
24        under this Section.
25            (J) "Qualified probation" means an order of
26        probation under Section 10 of the Cannabis Control

 

 

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1        Act, Section 410 of the Illinois Controlled Substances
2        Act, Section 70 of the Methamphetamine Control and
3        Community Protection Act, Section 5-6-3.3 or 5-6-3.4
4        of the Unified Code of Corrections, Section
5        12-4.3(b)(1) and (2) of the Criminal Code of 1961 (as
6        those provisions existed before their deletion by
7        Public Act 89-313), Section 10-102 of the Illinois
8        Alcoholism and Other Drug Dependency Act, Section
9        40-10 of the Substance Use Disorder Act, or Section 10
10        of the Steroid Control Act. For the purpose of this
11        Section, "successful completion" of an order of
12        qualified probation under Section 10-102 of the
13        Illinois Alcoholism and Other Drug Dependency Act and
14        Section 40-10 of the Substance Use Disorder Act means
15        that the probation was terminated satisfactorily and
16        the judgment of conviction was vacated.
17            (K) "Seal" means to physically and electronically
18        maintain the records, unless the records would
19        otherwise be destroyed due to age, but to make the
20        records unavailable without a court order, subject to
21        the exceptions in Sections 12 and 13 of this Act. The
22        petitioner's name shall also be obliterated from the
23        official index required to be kept by the circuit
24        court clerk under Section 16 of the Clerks of Courts
25        Act, but any index issued by the circuit court clerk
26        before the entry of the order to seal shall not be

 

 

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1        affected.
2            (L) "Sexual offense committed against a minor"
3        includes, but is not limited to, the offenses of
4        indecent solicitation of a child or criminal sexual
5        abuse when the victim of such offense is under 18 years
6        of age.
7            (M) "Terminate" as it relates to a sentence or
8        order of supervision or qualified probation includes
9        either satisfactory or unsatisfactory termination of
10        the sentence, unless otherwise specified in this
11        Section. A sentence is terminated notwithstanding any
12        outstanding financial legal obligation.
13        (2) Minor Traffic Offenses. Orders of supervision or
14    convictions for minor traffic offenses shall not affect a
15    petitioner's eligibility to expunge or seal records
16    pursuant to this Section.
17        (2.5) Commencing 180 days after July 29, 2016 (the
18    effective date of Public Act 99-697), the law enforcement
19    agency issuing the citation shall automatically expunge,
20    on or before January 1 and July 1 of each year, the law
21    enforcement records of a person found to have committed a
22    civil law violation of subsection (a) of Section 4 of the
23    Cannabis Control Act or subsection (c) of Section 3.5 of
24    the Drug Paraphernalia Control Act in the law enforcement
25    agency's possession or control and which contains the
26    final satisfactory disposition which pertain to the person

 

 

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1    issued a citation for that offense. The law enforcement
2    agency shall provide by rule the process for access,
3    review, and to confirm the automatic expungement by the
4    law enforcement agency issuing the citation. Commencing
5    180 days after July 29, 2016 (the effective date of Public
6    Act 99-697), the clerk of the circuit court shall expunge,
7    upon order of the court, or in the absence of a court order
8    on or before January 1 and July 1 of each year, the court
9    records of a person found in the circuit court to have
10    committed a civil law violation of subsection (a) of
11    Section 4 of the Cannabis Control Act or subsection (c) of
12    Section 3.5 of the Drug Paraphernalia Control Act in the
13    clerk's possession or control and which contains the final
14    satisfactory disposition which pertain to the person
15    issued a citation for any of those offenses.
16        (3) Exclusions. Except as otherwise provided in
17    subsections (b)(5), (b)(6), (b)(8), (e), (e-5), and (e-6)
18    of this Section, the court shall not order:
19            (A) the sealing or expungement of the records of
20        arrests or charges not initiated by arrest that result
21        in an order of supervision for or conviction of: (i)
22        any sexual offense committed against a minor; (ii)
23        Section 11-501 of the Illinois Vehicle Code or a
24        similar provision of a local ordinance; or (iii)
25        Section 11-503 of the Illinois Vehicle Code or a
26        similar provision of a local ordinance, unless the

 

 

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1        arrest or charge is for a misdemeanor violation of
2        subsection (a) of Section 11-503 or a similar
3        provision of a local ordinance, that occurred prior to
4        the offender reaching the age of 25 years and the
5        offender has no other conviction for violating Section
6        11-501 or 11-503 of the Illinois Vehicle Code or a
7        similar provision of a local ordinance.
8            (B) the sealing or expungement of records of minor
9        traffic offenses (as defined in subsection (a)(1)(G)),
10        unless the petitioner was arrested and released
11        without charging.
12            (C) the sealing of the records of arrests or
13        charges not initiated by arrest which result in an
14        order of supervision or a conviction for the following
15        offenses:
16                (i) offenses included in Article 11 of the
17            Criminal Code of 1961 or the Criminal Code of 2012
18            or a similar provision of a local ordinance,
19            except Section 11-14 and a misdemeanor violation
20            of Section 11-30 of the Criminal Code of 1961 or
21            the Criminal Code of 2012, or a similar provision
22            of a local ordinance;
23                (ii) Section 11-1.50, 12-3.4, 12-15, 12-30,
24            26-5, or 48-1 of the Criminal Code of 1961 or the
25            Criminal Code of 2012, or a similar provision of a
26            local ordinance;

 

 

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1                (iii) Sections 12-3.1 or 12-3.2 of the
2            Criminal Code of 1961 or the Criminal Code of
3            2012, or Section 125 of the Stalking No Contact
4            Order Act, or Section 219 of the Civil No Contact
5            Order Act, or a similar provision of a local
6            ordinance;
7                (iv) Class A misdemeanors or felony offenses
8            under the Humane Care for Animals Act; or
9                (v) any offense or attempted offense that
10            would subject a person to registration under the
11            Sex Offender Registration Act.
12            (D) (blank).
13    (b) Expungement.
14        (1) A petitioner may petition the circuit court to
15    expunge the records of his or her arrests and charges not
16    initiated by arrest when each arrest or charge not
17    initiated by arrest sought to be expunged resulted in: (i)
18    acquittal, dismissal, or the petitioner's release without
19    charging, unless excluded by subsection (a)(3)(B); (ii) a
20    conviction which was vacated or reversed, unless excluded
21    by subsection (a)(3)(B); (iii) an order of supervision and
22    such supervision was successfully completed by the
23    petitioner, unless excluded by subsection (a)(3)(A) or
24    (a)(3)(B); or (iv) an order of qualified probation (as
25    defined in subsection (a)(1)(J)) and such probation was
26    successfully completed by the petitioner.

 

 

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1        (1.5) When a petitioner seeks to have a record of
2    arrest expunged under this Section, and the offender has
3    been convicted of a criminal offense, the State's Attorney
4    may object to the expungement on the grounds that the
5    records contain specific relevant information aside from
6    the mere fact of the arrest.
7        (2) Time frame for filing a petition to expunge.
8            (A) When the arrest or charge not initiated by
9        arrest sought to be expunged resulted in an acquittal,
10        dismissal, the petitioner's release without charging,
11        or the reversal or vacation of a conviction, there is
12        no waiting period to petition for the expungement of
13        such records.
14            (B) When the arrest or charge not initiated by
15        arrest sought to be expunged resulted in an order of
16        supervision, successfully completed by the petitioner,
17        the following time frames will apply:
18                (i) Those arrests or charges that resulted in
19            orders of supervision under Section 3-707, 3-708,
20            3-710, or 5-401.3 of the Illinois Vehicle Code or
21            a similar provision of a local ordinance, or under
22            Section 11-1.50, 12-3.2, or 12-15 of the Criminal
23            Code of 1961 or the Criminal Code of 2012, or a
24            similar provision of a local ordinance, shall not
25            be eligible for expungement until 5 years have
26            passed following the satisfactory termination of

 

 

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1            the supervision.
2                (i-5) Those arrests or charges that resulted
3            in orders of supervision for a misdemeanor
4            violation of subsection (a) of Section 11-503 of
5            the Illinois Vehicle Code or a similar provision
6            of a local ordinance, that occurred prior to the
7            offender reaching the age of 25 years and the
8            offender has no other conviction for violating
9            Section 11-501 or 11-503 of the Illinois Vehicle
10            Code or a similar provision of a local ordinance
11            shall not be eligible for expungement until the
12            petitioner has reached the age of 25 years.
13                (ii) Those arrests or charges that resulted in
14            orders of supervision for any other offenses shall
15            not be eligible for expungement until 2 years have
16            passed following the satisfactory termination of
17            the supervision.
18            (C) When the arrest or charge not initiated by
19        arrest sought to be expunged resulted in an order of
20        qualified probation, successfully completed by the
21        petitioner, such records shall not be eligible for
22        expungement until 5 years have passed following the
23        satisfactory termination of the probation.
24        (3) Those records maintained by the Department for
25    persons arrested prior to their 17th birthday shall be
26    expunged as provided in Section 5-915 of the Juvenile

 

 

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1    Court Act of 1987.
2        (4) Whenever a person has been arrested for or
3    convicted of any offense, in the name of a person whose
4    identity he or she has stolen or otherwise come into
5    possession of, the aggrieved person from whom the identity
6    was stolen or otherwise obtained without authorization,
7    upon learning of the person having been arrested using his
8    or her identity, may, upon verified petition to the chief
9    judge of the circuit wherein the arrest was made, have a
10    court order entered nunc pro tunc by the Chief Judge to
11    correct the arrest record, conviction record, if any, and
12    all official records of the arresting authority, the
13    Department, other criminal justice agencies, the
14    prosecutor, and the trial court concerning such arrest, if
15    any, by removing his or her name from all such records in
16    connection with the arrest and conviction, if any, and by
17    inserting in the records the name of the offender, if
18    known or ascertainable, in lieu of the aggrieved's name.
19    The records of the circuit court clerk shall be sealed
20    until further order of the court upon good cause shown and
21    the name of the aggrieved person obliterated on the
22    official index required to be kept by the circuit court
23    clerk under Section 16 of the Clerks of Courts Act, but the
24    order shall not affect any index issued by the circuit
25    court clerk before the entry of the order. Nothing in this
26    Section shall limit the Department of State Police or

 

 

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1    other criminal justice agencies or prosecutors from
2    listing under an offender's name the false names he or she
3    has used.
4        (5) Whenever a person has been convicted of criminal
5    sexual assault, aggravated criminal sexual assault,
6    predatory criminal sexual assault of a child, criminal
7    sexual abuse, or aggravated criminal sexual abuse, the
8    victim of that offense may request that the State's
9    Attorney of the county in which the conviction occurred
10    file a verified petition with the presiding trial judge at
11    the petitioner's trial to have a court order entered to
12    seal the records of the circuit court clerk in connection
13    with the proceedings of the trial court concerning that
14    offense. However, the records of the arresting authority
15    and the Department of State Police concerning the offense
16    shall not be sealed. The court, upon good cause shown,
17    shall make the records of the circuit court clerk in
18    connection with the proceedings of the trial court
19    concerning the offense available for public inspection.
20        (6) If a conviction has been set aside on direct
21    review or on collateral attack and the court determines by
22    clear and convincing evidence that the petitioner was
23    factually innocent of the charge, the court that finds the
24    petitioner factually innocent of the charge shall enter an
25    expungement order for the conviction for which the
26    petitioner has been determined to be innocent as provided

 

 

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1    in subsection (b) of Section 5-5-4 of the Unified Code of
2    Corrections.
3        (7) Nothing in this Section shall prevent the
4    Department of State Police from maintaining all records of
5    any person who is admitted to probation upon terms and
6    conditions and who fulfills those terms and conditions
7    pursuant to Section 10 of the Cannabis Control Act,
8    Section 410 of the Illinois Controlled Substances Act,
9    Section 70 of the Methamphetamine Control and Community
10    Protection Act, Section 5-6-3.3 or 5-6-3.4 of the Unified
11    Code of Corrections, Section 12-4.3 or subdivision (b)(1)
12    of Section 12-3.05 of the Criminal Code of 1961 or the
13    Criminal Code of 2012, Section 10-102 of the Illinois
14    Alcoholism and Other Drug Dependency Act, Section 40-10 of
15    the Substance Use Disorder Act, or Section 10 of the
16    Steroid Control Act.
17        (8) If the petitioner has been granted a certificate
18    of innocence under Section 2-702 of the Code of Civil
19    Procedure, the court that grants the certificate of
20    innocence shall also enter an order expunging the
21    conviction for which the petitioner has been determined to
22    be innocent as provided in subsection (h) of Section 2-702
23    of the Code of Civil Procedure.
24    (c) Sealing.
25        (1) Applicability. Notwithstanding any other provision
26    of this Act to the contrary, and cumulative with any

 

 

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1    rights to expungement of criminal records, this subsection
2    authorizes the sealing of criminal records of adults and
3    of minors prosecuted as adults. Subsection (g) of this
4    Section provides for immediate sealing of certain records.
5        (2) Eligible Records. The following records may be
6    sealed:
7            (A) All arrests resulting in release without
8        charging;
9            (B) Arrests or charges not initiated by arrest
10        resulting in acquittal, dismissal, or conviction when
11        the conviction was reversed or vacated, except as
12        excluded by subsection (a)(3)(B);
13            (C) Arrests or charges not initiated by arrest
14        resulting in orders of supervision, including orders
15        of supervision for municipal ordinance violations,
16        successfully completed by the petitioner, unless
17        excluded by subsection (a)(3);
18            (D) Arrests or charges not initiated by arrest
19        resulting in convictions, including convictions on
20        municipal ordinance violations, unless excluded by
21        subsection (a)(3);
22            (E) Arrests or charges not initiated by arrest
23        resulting in orders of first offender probation under
24        Section 10 of the Cannabis Control Act, Section 410 of
25        the Illinois Controlled Substances Act, Section 70 of
26        the Methamphetamine Control and Community Protection

 

 

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1        Act, or Section 5-6-3.3 of the Unified Code of
2        Corrections; and
3            (F) Arrests or charges not initiated by arrest
4        resulting in felony convictions unless otherwise
5        excluded by subsection (a) paragraph (3) of this
6        Section.
7        (3) When Records Are Eligible to Be Sealed. Records
8    identified as eligible under subsection (c)(2) may be
9    sealed as follows:
10            (A) Records identified as eligible under
11        subsection (c)(2)(A) and (c)(2)(B) may be sealed at
12        any time.
13            (B) Except as otherwise provided in subparagraph
14        (E) of this paragraph (3), records identified as
15        eligible under subsection (c)(2)(C) may be sealed 2
16        years after the termination of petitioner's last
17        sentence (as defined in subsection (a)(1)(F)).
18            (C) Except as otherwise provided in subparagraph
19        (E) of this paragraph (3), records identified as
20        eligible under subsections (c)(2)(D), (c)(2)(E), and
21        (c)(2)(F) may be sealed 3 years after the termination
22        of the petitioner's last sentence (as defined in
23        subsection (a)(1)(F)). Convictions requiring public
24        registration under the Arsonist Registration Act, the
25        Sex Offender Registration Act, or the Murderer and
26        Violent Offender Against Youth Registration Act may

 

 

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1        not be sealed until the petitioner is no longer
2        required to register under that relevant Act.
3            (D) Records identified in subsection
4        (a)(3)(A)(iii) may be sealed after the petitioner has
5        reached the age of 25 years.
6            (E) Records identified as eligible under
7        subsections (c)(2)(C), (c)(2)(D), (c)(2)(E), or
8        (c)(2)(F) may be sealed upon termination of the
9        petitioner's last sentence if the petitioner earned a
10        high school diploma, associate's degree, career
11        certificate, vocational technical certification, or
12        bachelor's degree, or passed the high school level
13        Test of General Educational Development, during the
14        period of his or her sentence or mandatory supervised
15        release. This subparagraph shall apply only to a
16        petitioner who has not completed the same educational
17        goal prior to the period of his or her sentence or
18        mandatory supervised release. If a petition for
19        sealing eligible records filed under this subparagraph
20        is denied by the court, the time periods under
21        subparagraph (B) or (C) shall apply to any subsequent
22        petition for sealing filed by the petitioner.
23        (4) Subsequent felony convictions. A person may not
24    have subsequent felony conviction records sealed as
25    provided in this subsection (c) if he or she is convicted
26    of any felony offense after the date of the sealing of

 

 

SB2136- 18 -LRB102 17328 RJF 22818 b

1    prior felony convictions as provided in this subsection
2    (c). The court may, upon conviction for a subsequent
3    felony offense, order the unsealing of prior felony
4    conviction records previously ordered sealed by the court.
5        (5) Notice of eligibility for sealing. Upon entry of a
6    disposition for an eligible record under this subsection
7    (c), the petitioner shall be informed by the court of the
8    right to have the records sealed and the procedures for
9    the sealing of the records.
10    (d) Procedure. The following procedures apply to
11expungement under subsections (b), (e), and (e-6) and sealing
12under subsections (c) and (e-5):
13        (1) Filing the petition. Upon becoming eligible to
14    petition for the expungement or sealing of records under
15    this Section, the petitioner shall file a petition
16    requesting the expungement or sealing of records with the
17    clerk of the court where the arrests occurred or the
18    charges were brought, or both. If arrests occurred or
19    charges were brought in multiple jurisdictions, a petition
20    must be filed in each such jurisdiction. The petitioner
21    shall pay the applicable fee, except no fee shall be
22    required if the petitioner has obtained a court order
23    waiving fees under Supreme Court Rule 298 or it is
24    otherwise waived.
25        (1.5) County fee waiver pilot program. From August 9,
26    2019 (the effective date of Public Act 101-306) through

 

 

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1    December 31, 2020, in a county of 3,000,000 or more
2    inhabitants, no fee shall be required to be paid by a
3    petitioner if the records sought to be expunged or sealed
4    were arrests resulting in release without charging or
5    arrests or charges not initiated by arrest resulting in
6    acquittal, dismissal, or conviction when the conviction
7    was reversed or vacated, unless excluded by subsection
8    (a)(3)(B). The provisions of this paragraph (1.5), other
9    than this sentence, are inoperative on and after January
10    1, 2022.
11        (2) Contents of petition. The petition shall be
12    verified and shall contain the petitioner's name, date of
13    birth, current address and, for each arrest or charge not
14    initiated by arrest sought to be sealed or expunged, the
15    case number, the date of arrest (if any), the identity of
16    the arresting authority, and such other information as the
17    court may require. During the pendency of the proceeding,
18    the petitioner shall promptly notify the circuit court
19    clerk of any change of his or her address. If the
20    petitioner has received a certificate of eligibility for
21    sealing from the Prisoner Review Board under paragraph
22    (10) of subsection (a) of Section 3-3-2 of the Unified
23    Code of Corrections, the certificate shall be attached to
24    the petition.
25        (3) (Blank). Drug test. The petitioner must attach to
26    the petition proof that the petitioner has passed a test

 

 

SB2136- 20 -LRB102 17328 RJF 22818 b

1    taken within 30 days before the filing of the petition
2    showing the absence within his or her body of all illegal
3    substances as defined by the Illinois Controlled
4    Substances Act, the Methamphetamine Control and Community
5    Protection Act, and the Cannabis Control Act if he or she
6    is petitioning to:
7            (A) seal felony records under clause (c)(2)(E);
8            (B) seal felony records for a violation of the
9        Illinois Controlled Substances Act, the
10        Methamphetamine Control and Community Protection Act,
11        or the Cannabis Control Act under clause (c)(2)(F);
12            (C) seal felony records under subsection (e-5); or
13            (D) expunge felony records of a qualified
14        probation under clause (b)(1)(iv).
15        (4) Service of petition. The circuit court clerk shall
16    promptly serve a copy of the petition and documentation to
17    support the petition under subsection (e-5) or (e-6) on
18    the State's Attorney or prosecutor charged with the duty
19    of prosecuting the offense, the Department of State
20    Police, the arresting agency and the chief legal officer
21    of the unit of local government effecting the arrest.
22        (5) Objections.
23            (A) Any party entitled to notice of the petition
24        may file an objection to the petition. All objections
25        shall be in writing, shall be filed with the circuit
26        court clerk, and shall state with specificity the

 

 

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1        basis of the objection. Whenever a person who has been
2        convicted of an offense is granted a pardon by the
3        Governor which specifically authorizes expungement, an
4        objection to the petition may not be filed.
5            (B) Objections to a petition to expunge or seal
6        must be filed within 60 days of the date of service of
7        the petition.
8        (6) Entry of order.
9            (A) The Chief Judge of the circuit wherein the
10        charge was brought, any judge of that circuit
11        designated by the Chief Judge, or in counties of less
12        than 3,000,000 inhabitants, the presiding trial judge
13        at the petitioner's trial, if any, shall rule on the
14        petition to expunge or seal as set forth in this
15        subsection (d)(6).
16            (B) Unless the State's Attorney or prosecutor, the
17        Department of State Police, the arresting agency, or
18        the chief legal officer files an objection to the
19        petition to expunge or seal within 60 days from the
20        date of service of the petition, the court shall enter
21        an order granting or denying the petition.
22            (C) Notwithstanding any other provision of law,
23        the court shall not deny a petition for sealing under
24        this Section because the petitioner has not satisfied
25        an outstanding legal financial obligation established,
26        imposed, or originated by a court, law enforcement

 

 

SB2136- 22 -LRB102 17328 RJF 22818 b

1        agency, or a municipal, State, county, or other unit
2        of local government, including, but not limited to,
3        any cost, assessment, fine, or fee. An outstanding
4        legal financial obligation does not include any court
5        ordered restitution to a victim under Section 5-5-6 of
6        the Unified Code of Corrections, unless the
7        restitution has been converted to a civil judgment.
8        Nothing in this subparagraph (C) waives, rescinds, or
9        abrogates a legal financial obligation or otherwise
10        eliminates or affects the right of the holder of any
11        financial obligation to pursue collection under
12        applicable federal, State, or local law.
13        (7) Hearings. If an objection is filed, the court
14    shall set a date for a hearing and notify the petitioner
15    and all parties entitled to notice of the petition of the
16    hearing date at least 30 days prior to the hearing. Prior
17    to the hearing, the State's Attorney shall consult with
18    the Department as to the appropriateness of the relief
19    sought in the petition to expunge or seal. At the hearing,
20    the court shall hear evidence on whether the petition
21    should or should not be granted, and shall grant or deny
22    the petition to expunge or seal the records based on the
23    evidence presented at the hearing. The court may consider
24    the following:
25            (A) the strength of the evidence supporting the
26        defendant's conviction;

 

 

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1            (B) the reasons for retention of the conviction
2        records by the State;
3            (C) the petitioner's age, criminal record history,
4        and employment history;
5            (D) the period of time between the petitioner's
6        arrest on the charge resulting in the conviction and
7        the filing of the petition under this Section; and
8            (E) the specific adverse consequences the
9        petitioner may be subject to if the petition is
10        denied.
11        (8) Service of order. After entering an order to
12    expunge or seal records, the court must provide copies of
13    the order to the Department, in a form and manner
14    prescribed by the Department, to the petitioner, to the
15    State's Attorney or prosecutor charged with the duty of
16    prosecuting the offense, to the arresting agency, to the
17    chief legal officer of the unit of local government
18    effecting the arrest, and to such other criminal justice
19    agencies as may be ordered by the court.
20        (9) Implementation of order.
21            (A) Upon entry of an order to expunge records
22        pursuant to (b)(2)(A) or (b)(2)(B)(ii), or both:
23                (i) the records shall be expunged (as defined
24            in subsection (a)(1)(E)) by the arresting agency,
25            the Department, and any other agency as ordered by
26            the court, within 60 days of the date of service of

 

 

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1            the order, unless a motion to vacate, modify, or
2            reconsider the order is filed pursuant to
3            paragraph (12) of subsection (d) of this Section;
4                (ii) the records of the circuit court clerk
5            shall be impounded until further order of the
6            court upon good cause shown and the name of the
7            petitioner obliterated on the official index
8            required to be kept by the circuit court clerk
9            under Section 16 of the Clerks of Courts Act, but
10            the order shall not affect any index issued by the
11            circuit court clerk before the entry of the order;
12            and
13                (iii) in response to an inquiry for expunged
14            records, the court, the Department, or the agency
15            receiving such inquiry, shall reply as it does in
16            response to inquiries when no records ever
17            existed.
18            (B) Upon entry of an order to expunge records
19        pursuant to (b)(2)(B)(i) or (b)(2)(C), or both:
20                (i) the records shall be expunged (as defined
21            in subsection (a)(1)(E)) by the arresting agency
22            and any other agency as ordered by the court,
23            within 60 days of the date of service of the order,
24            unless a motion to vacate, modify, or reconsider
25            the order is filed pursuant to paragraph (12) of
26            subsection (d) of this Section;

 

 

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1                (ii) the records of the circuit court clerk
2            shall be impounded until further order of the
3            court upon good cause shown and the name of the
4            petitioner obliterated on the official index
5            required to be kept by the circuit court clerk
6            under Section 16 of the Clerks of Courts Act, but
7            the order shall not affect any index issued by the
8            circuit court clerk before the entry of the order;
9                (iii) the records shall be impounded by the
10            Department within 60 days of the date of service
11            of the order as ordered by the court, unless a
12            motion to vacate, modify, or reconsider the order
13            is filed pursuant to paragraph (12) of subsection
14            (d) of this Section;
15                (iv) records impounded by the Department may
16            be disseminated by the Department only as required
17            by law or to the arresting authority, the State's
18            Attorney, and the court upon a later arrest for
19            the same or a similar offense or for the purpose of
20            sentencing for any subsequent felony, and to the
21            Department of Corrections upon conviction for any
22            offense; and
23                (v) in response to an inquiry for such records
24            from anyone not authorized by law to access such
25            records, the court, the Department, or the agency
26            receiving such inquiry shall reply as it does in

 

 

SB2136- 26 -LRB102 17328 RJF 22818 b

1            response to inquiries when no records ever
2            existed.
3            (B-5) Upon entry of an order to expunge records
4        under subsection (e-6):
5                (i) the records shall be expunged (as defined
6            in subsection (a)(1)(E)) by the arresting agency
7            and any other agency as ordered by the court,
8            within 60 days of the date of service of the order,
9            unless a motion to vacate, modify, or reconsider
10            the order is filed under paragraph (12) of
11            subsection (d) of this Section;
12                (ii) the records of the circuit court clerk
13            shall be impounded until further order of the
14            court upon good cause shown and the name of the
15            petitioner obliterated on the official index
16            required to be kept by the circuit court clerk
17            under Section 16 of the Clerks of Courts Act, but
18            the order shall not affect any index issued by the
19            circuit court clerk before the entry of the order;
20                (iii) the records shall be impounded by the
21            Department within 60 days of the date of service
22            of the order as ordered by the court, unless a
23            motion to vacate, modify, or reconsider the order
24            is filed under paragraph (12) of subsection (d) of
25            this Section;
26                (iv) records impounded by the Department may

 

 

SB2136- 27 -LRB102 17328 RJF 22818 b

1            be disseminated by the Department only as required
2            by law or to the arresting authority, the State's
3            Attorney, and the court upon a later arrest for
4            the same or a similar offense or for the purpose of
5            sentencing for any subsequent felony, and to the
6            Department of Corrections upon conviction for any
7            offense; and
8                (v) in response to an inquiry for these
9            records from anyone not authorized by law to
10            access the records, the court, the Department, or
11            the agency receiving the inquiry shall reply as it
12            does in response to inquiries when no records ever
13            existed.
14            (C) Upon entry of an order to seal records under
15        subsection (c), the arresting agency, any other agency
16        as ordered by the court, the Department, and the court
17        shall seal the records (as defined in subsection
18        (a)(1)(K)). In response to an inquiry for such
19        records, from anyone not authorized by law to access
20        such records, the court, the Department, or the agency
21        receiving such inquiry shall reply as it does in
22        response to inquiries when no records ever existed.
23            (D) The Department shall send written notice to
24        the petitioner of its compliance with each order to
25        expunge or seal records within 60 days of the date of
26        service of that order or, if a motion to vacate,

 

 

SB2136- 28 -LRB102 17328 RJF 22818 b

1        modify, or reconsider is filed, within 60 days of
2        service of the order resolving the motion, if that
3        order requires the Department to expunge or seal
4        records. In the event of an appeal from the circuit
5        court order, the Department shall send written notice
6        to the petitioner of its compliance with an Appellate
7        Court or Supreme Court judgment to expunge or seal
8        records within 60 days of the issuance of the court's
9        mandate. The notice is not required while any motion
10        to vacate, modify, or reconsider, or any appeal or
11        petition for discretionary appellate review, is
12        pending.
13            (E) Upon motion, the court may order that a sealed
14        judgment or other court record necessary to
15        demonstrate the amount of any legal financial
16        obligation due and owing be made available for the
17        limited purpose of collecting any legal financial
18        obligations owed by the petitioner that were
19        established, imposed, or originated in the criminal
20        proceeding for which those records have been sealed.
21        The records made available under this subparagraph (E)
22        shall not be entered into the official index required
23        to be kept by the circuit court clerk under Section 16
24        of the Clerks of Courts Act and shall be immediately
25        re-impounded upon the collection of the outstanding
26        financial obligations.

 

 

SB2136- 29 -LRB102 17328 RJF 22818 b

1            (F) Notwithstanding any other provision of this
2        Section, a circuit court clerk may access a sealed
3        record for the limited purpose of collecting payment
4        for any legal financial obligations that were
5        established, imposed, or originated in the criminal
6        proceedings for which those records have been sealed.
7        (10) Fees. The Department may charge the petitioner a
8    fee equivalent to the cost of processing any order to
9    expunge or seal records. Notwithstanding any provision of
10    the Clerks of Courts Act to the contrary, the circuit
11    court clerk may charge a fee equivalent to the cost
12    associated with the sealing or expungement of records by
13    the circuit court clerk. From the total filing fee
14    collected for the petition to seal or expunge, the circuit
15    court clerk shall deposit $10 into the Circuit Court Clerk
16    Operation and Administrative Fund, to be used to offset
17    the costs incurred by the circuit court clerk in
18    performing the additional duties required to serve the
19    petition to seal or expunge on all parties. The circuit
20    court clerk shall collect and forward the Department of
21    State Police portion of the fee to the Department and it
22    shall be deposited in the State Police Services Fund. If
23    the record brought under an expungement petition was
24    previously sealed under this Section, the fee for the
25    expungement petition for that same record shall be waived.
26        (11) Final Order. No court order issued under the

 

 

SB2136- 30 -LRB102 17328 RJF 22818 b

1    expungement or sealing provisions of this Section shall
2    become final for purposes of appeal until 30 days after
3    service of the order on the petitioner and all parties
4    entitled to notice of the petition.
5        (12) Motion to Vacate, Modify, or Reconsider. Under
6    Section 2-1203 of the Code of Civil Procedure, the
7    petitioner or any party entitled to notice may file a
8    motion to vacate, modify, or reconsider the order granting
9    or denying the petition to expunge or seal within 60 days
10    of service of the order. If filed more than 60 days after
11    service of the order, a petition to vacate, modify, or
12    reconsider shall comply with subsection (c) of Section
13    2-1401 of the Code of Civil Procedure. Upon filing of a
14    motion to vacate, modify, or reconsider, notice of the
15    motion shall be served upon the petitioner and all parties
16    entitled to notice of the petition.
17        (13) Effect of Order. An order granting a petition
18    under the expungement or sealing provisions of this
19    Section shall not be considered void because it fails to
20    comply with the provisions of this Section or because of
21    any error asserted in a motion to vacate, modify, or
22    reconsider. The circuit court retains jurisdiction to
23    determine whether the order is voidable and to vacate,
24    modify, or reconsider its terms based on a motion filed
25    under paragraph (12) of this subsection (d).
26        (14) Compliance with Order Granting Petition to Seal

 

 

SB2136- 31 -LRB102 17328 RJF 22818 b

1    Records. Unless a court has entered a stay of an order
2    granting a petition to seal, all parties entitled to
3    notice of the petition must fully comply with the terms of
4    the order within 60 days of service of the order even if a
5    party is seeking relief from the order through a motion
6    filed under paragraph (12) of this subsection (d) or is
7    appealing the order.
8        (15) Compliance with Order Granting Petition to
9    Expunge Records. While a party is seeking relief from the
10    order granting the petition to expunge through a motion
11    filed under paragraph (12) of this subsection (d) or is
12    appealing the order, and unless a court has entered a stay
13    of that order, the parties entitled to notice of the
14    petition must seal, but need not expunge, the records
15    until there is a final order on the motion for relief or,
16    in the case of an appeal, the issuance of that court's
17    mandate.
18        (16) The changes to this subsection (d) made by Public
19    Act 98-163 apply to all petitions pending on August 5,
20    2013 (the effective date of Public Act 98-163) and to all
21    orders ruling on a petition to expunge or seal on or after
22    August 5, 2013 (the effective date of Public Act 98-163).
23    (e) Whenever a person who has been convicted of an offense
24is granted a pardon by the Governor which specifically
25authorizes expungement, he or she may, upon verified petition
26to the Chief Judge of the circuit where the person had been

 

 

SB2136- 32 -LRB102 17328 RJF 22818 b

1convicted, any judge of the circuit designated by the Chief
2Judge, or in counties of less than 3,000,000 inhabitants, the
3presiding trial judge at the defendant's trial, have a court
4order entered expunging the record of arrest from the official
5records of the arresting authority and order that the records
6of the circuit court clerk and the Department be sealed until
7further order of the court upon good cause shown or as
8otherwise provided herein, and the name of the defendant
9obliterated from the official index requested to be kept by
10the circuit court clerk under Section 16 of the Clerks of
11Courts Act in connection with the arrest and conviction for
12the offense for which he or she had been pardoned but the order
13shall not affect any index issued by the circuit court clerk
14before the entry of the order. All records sealed by the
15Department may be disseminated by the Department only to the
16arresting authority, the State's Attorney, and the court upon
17a later arrest for the same or similar offense or for the
18purpose of sentencing for any subsequent felony. Upon
19conviction for any subsequent offense, the Department of
20Corrections shall have access to all sealed records of the
21Department pertaining to that individual. Upon entry of the
22order of expungement, the circuit court clerk shall promptly
23mail a copy of the order to the person who was pardoned.
24    (e-5) Whenever a person who has been convicted of an
25offense is granted a certificate of eligibility for sealing by
26the Prisoner Review Board which specifically authorizes

 

 

SB2136- 33 -LRB102 17328 RJF 22818 b

1sealing, he or she may, upon verified petition to the Chief
2Judge of the circuit where the person had been convicted, any
3judge of the circuit designated by the Chief Judge, or in
4counties of less than 3,000,000 inhabitants, the presiding
5trial judge at the petitioner's trial, have a court order
6entered sealing the record of arrest from the official records
7of the arresting authority and order that the records of the
8circuit court clerk and the Department be sealed until further
9order of the court upon good cause shown or as otherwise
10provided herein, and the name of the petitioner obliterated
11from the official index requested to be kept by the circuit
12court clerk under Section 16 of the Clerks of Courts Act in
13connection with the arrest and conviction for the offense for
14which he or she had been granted the certificate but the order
15shall not affect any index issued by the circuit court clerk
16before the entry of the order. All records sealed by the
17Department may be disseminated by the Department only as
18required by this Act or to the arresting authority, a law
19enforcement agency, the State's Attorney, and the court upon a
20later arrest for the same or similar offense or for the purpose
21of sentencing for any subsequent felony. Upon conviction for
22any subsequent offense, the Department of Corrections shall
23have access to all sealed records of the Department pertaining
24to that individual. Upon entry of the order of sealing, the
25circuit court clerk shall promptly mail a copy of the order to
26the person who was granted the certificate of eligibility for

 

 

SB2136- 34 -LRB102 17328 RJF 22818 b

1sealing.
2    (e-6) Whenever a person who has been convicted of an
3offense is granted a certificate of eligibility for
4expungement by the Prisoner Review Board which specifically
5authorizes expungement, he or she may, upon verified petition
6to the Chief Judge of the circuit where the person had been
7convicted, any judge of the circuit designated by the Chief
8Judge, or in counties of less than 3,000,000 inhabitants, the
9presiding trial judge at the petitioner's trial, have a court
10order entered expunging the record of arrest from the official
11records of the arresting authority and order that the records
12of the circuit court clerk and the Department be sealed until
13further order of the court upon good cause shown or as
14otherwise provided herein, and the name of the petitioner
15obliterated from the official index requested to be kept by
16the circuit court clerk under Section 16 of the Clerks of
17Courts Act in connection with the arrest and conviction for
18the offense for which he or she had been granted the
19certificate but the order shall not affect any index issued by
20the circuit court clerk before the entry of the order. All
21records sealed by the Department may be disseminated by the
22Department only as required by this Act or to the arresting
23authority, a law enforcement agency, the State's Attorney, and
24the court upon a later arrest for the same or similar offense
25or for the purpose of sentencing for any subsequent felony.
26Upon conviction for any subsequent offense, the Department of

 

 

SB2136- 35 -LRB102 17328 RJF 22818 b

1Corrections shall have access to all expunged records of the
2Department pertaining to that individual. Upon entry of the
3order of expungement, the circuit court clerk shall promptly
4mail a copy of the order to the person who was granted the
5certificate of eligibility for expungement.
6    (f) Subject to available funding, the Illinois Department
7of Corrections shall conduct a study of the impact of sealing,
8especially on employment and recidivism rates, utilizing a
9random sample of those who apply for the sealing of their
10criminal records under Public Act 93-211. At the request of
11the Illinois Department of Corrections, records of the
12Illinois Department of Employment Security shall be utilized
13as appropriate to assist in the study. The study shall not
14disclose any data in a manner that would allow the
15identification of any particular individual or employing unit.
16The study shall be made available to the General Assembly no
17later than September 1, 2010.
18    (g) Immediate Sealing.
19        (1) Applicability. Notwithstanding any other provision
20    of this Act to the contrary, and cumulative with any
21    rights to expungement or sealing of criminal records, this
22    subsection authorizes the immediate sealing of criminal
23    records of adults and of minors prosecuted as adults.
24        (2) Eligible Records. Arrests or charges not initiated
25    by arrest resulting in acquittal or dismissal with
26    prejudice, except as excluded by subsection (a)(3)(B),

 

 

SB2136- 36 -LRB102 17328 RJF 22818 b

1    that occur on or after January 1, 2018 (the effective date
2    of Public Act 100-282), may be sealed immediately if the
3    petition is filed with the circuit court clerk on the same
4    day and during the same hearing in which the case is
5    disposed.
6        (3) When Records are Eligible to be Immediately
7    Sealed. Eligible records under paragraph (2) of this
8    subsection (g) may be sealed immediately after entry of
9    the final disposition of a case, notwithstanding the
10    disposition of other charges in the same case.
11        (4) Notice of Eligibility for Immediate Sealing. Upon
12    entry of a disposition for an eligible record under this
13    subsection (g), the defendant shall be informed by the
14    court of his or her right to have eligible records
15    immediately sealed and the procedure for the immediate
16    sealing of these records.
17        (5) Procedure. The following procedures apply to
18    immediate sealing under this subsection (g).
19            (A) Filing the Petition. Upon entry of the final
20        disposition of the case, the defendant's attorney may
21        immediately petition the court, on behalf of the
22        defendant, for immediate sealing of eligible records
23        under paragraph (2) of this subsection (g) that are
24        entered on or after January 1, 2018 (the effective
25        date of Public Act 100-282). The immediate sealing
26        petition may be filed with the circuit court clerk

 

 

SB2136- 37 -LRB102 17328 RJF 22818 b

1        during the hearing in which the final disposition of
2        the case is entered. If the defendant's attorney does
3        not file the petition for immediate sealing during the
4        hearing, the defendant may file a petition for sealing
5        at any time as authorized under subsection (c)(3)(A).
6            (B) Contents of Petition. The immediate sealing
7        petition shall be verified and shall contain the
8        petitioner's name, date of birth, current address, and
9        for each eligible record, the case number, the date of
10        arrest if applicable, the identity of the arresting
11        authority if applicable, and other information as the
12        court may require.
13            (C) Drug Test. The petitioner shall not be
14        required to attach proof that he or she has passed a
15        drug test.
16            (D) Service of Petition. A copy of the petition
17        shall be served on the State's Attorney in open court.
18        The petitioner shall not be required to serve a copy of
19        the petition on any other agency.
20            (E) Entry of Order. The presiding trial judge
21        shall enter an order granting or denying the petition
22        for immediate sealing during the hearing in which it
23        is filed. Petitions for immediate sealing shall be
24        ruled on in the same hearing in which the final
25        disposition of the case is entered.
26            (F) Hearings. The court shall hear the petition

 

 

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1        for immediate sealing on the same day and during the
2        same hearing in which the disposition is rendered.
3            (G) Service of Order. An order to immediately seal
4        eligible records shall be served in conformance with
5        subsection (d)(8).
6            (H) Implementation of Order. An order to
7        immediately seal records shall be implemented in
8        conformance with subsections (d)(9)(C) and (d)(9)(D).
9            (I) Fees. The fee imposed by the circuit court
10        clerk and the Department of State Police shall comply
11        with paragraph (1) of subsection (d) of this Section.
12            (J) Final Order. No court order issued under this
13        subsection (g) shall become final for purposes of
14        appeal until 30 days after service of the order on the
15        petitioner and all parties entitled to service of the
16        order in conformance with subsection (d)(8).
17            (K) Motion to Vacate, Modify, or Reconsider. Under
18        Section 2-1203 of the Code of Civil Procedure, the
19        petitioner, State's Attorney, or the Department of
20        State Police may file a motion to vacate, modify, or
21        reconsider the order denying the petition to
22        immediately seal within 60 days of service of the
23        order. If filed more than 60 days after service of the
24        order, a petition to vacate, modify, or reconsider
25        shall comply with subsection (c) of Section 2-1401 of
26        the Code of Civil Procedure.

 

 

SB2136- 39 -LRB102 17328 RJF 22818 b

1            (L) Effect of Order. An order granting an
2        immediate sealing petition shall not be considered
3        void because it fails to comply with the provisions of
4        this Section or because of an error asserted in a
5        motion to vacate, modify, or reconsider. The circuit
6        court retains jurisdiction to determine whether the
7        order is voidable, and to vacate, modify, or
8        reconsider its terms based on a motion filed under
9        subparagraph (L) of this subsection (g).
10            (M) Compliance with Order Granting Petition to
11        Seal Records. Unless a court has entered a stay of an
12        order granting a petition to immediately seal, all
13        parties entitled to service of the order must fully
14        comply with the terms of the order within 60 days of
15        service of the order.
16    (h) Sealing; trafficking victims.
17        (1) A trafficking victim as defined by paragraph (10)
18    of subsection (a) of Section 10-9 of the Criminal Code of
19    2012 shall be eligible to petition for immediate sealing
20    of his or her criminal record upon the completion of his or
21    her last sentence if his or her participation in the
22    underlying offense was a direct result of human
23    trafficking under Section 10-9 of the Criminal Code of
24    2012 or a severe form of trafficking under the federal
25    Trafficking Victims Protection Act.
26        (2) A petitioner under this subsection (h), in

 

 

SB2136- 40 -LRB102 17328 RJF 22818 b

1    addition to the requirements provided under paragraph (4)
2    of subsection (d) of this Section, shall include in his or
3    her petition a clear and concise statement that: (A) he or
4    she was a victim of human trafficking at the time of the
5    offense; and (B) that his or her participation in the
6    offense was a direct result of human trafficking under
7    Section 10-9 of the Criminal Code of 2012 or a severe form
8    of trafficking under the federal Trafficking Victims
9    Protection Act.
10        (3) If an objection is filed alleging that the
11    petitioner is not entitled to immediate sealing under this
12    subsection (h), the court shall conduct a hearing under
13    paragraph (7) of subsection (d) of this Section and the
14    court shall determine whether the petitioner is entitled
15    to immediate sealing under this subsection (h). A
16    petitioner is eligible for immediate relief under this
17    subsection (h) if he or she shows, by a preponderance of
18    the evidence, that: (A) he or she was a victim of human
19    trafficking at the time of the offense; and (B) that his or
20    her participation in the offense was a direct result of
21    human trafficking under Section 10-9 of the Criminal Code
22    of 2012 or a severe form of trafficking under the federal
23    Trafficking Victims Protection Act.
24    (i) Minor Cannabis Offenses under the Cannabis Control
25Act.
26        (1) Expungement of Arrest Records of Minor Cannabis

 

 

SB2136- 41 -LRB102 17328 RJF 22818 b

1    Offenses.
2            (A) The Department of State Police and all law
3        enforcement agencies within the State shall
4        automatically expunge all criminal history records of
5        an arrest, charge not initiated by arrest, order of
6        supervision, or order of qualified probation for a
7        Minor Cannabis Offense committed prior to June 25,
8        2019 (the effective date of Public Act 101-27) if:
9                (i) One year or more has elapsed since the
10            date of the arrest or law enforcement interaction
11            documented in the records; and
12                (ii) No criminal charges were filed relating
13            to the arrest or law enforcement interaction or
14            criminal charges were filed and subsequently
15            dismissed or vacated or the arrestee was
16            acquitted.
17            (B) If the law enforcement agency is unable to
18        verify satisfaction of condition (ii) in paragraph
19        (A), records that satisfy condition (i) in paragraph
20        (A) shall be automatically expunged.
21            (C) Records shall be expunged by the law
22        enforcement agency under the following timelines:
23                (i) Records created prior to June 25, 2019
24            (the effective date of Public Act 101-27), but on
25            or after January 1, 2013, shall be automatically
26            expunged prior to January 1, 2021;

 

 

SB2136- 42 -LRB102 17328 RJF 22818 b

1                (ii) Records created prior to January 1, 2013,
2            but on or after January 1, 2000, shall be
3            automatically expunged prior to January 1, 2023;
4                (iii) Records created prior to January 1, 2000
5            shall be automatically expunged prior to January
6            1, 2025.
7            In response to an inquiry for expunged records,
8        the law enforcement agency receiving such inquiry
9        shall reply as it does in response to inquiries when no
10        records ever existed; however, it shall provide a
11        certificate of disposition or confirmation that the
12        record was expunged to the individual whose record was
13        expunged if such a record exists.
14            (D) Nothing in this Section shall be construed to
15        restrict or modify an individual's right to have that
16        individual's records expunged except as otherwise may
17        be provided in this Act, or diminish or abrogate any
18        rights or remedies otherwise available to the
19        individual.
20        (2) Pardons Authorizing Expungement of Minor Cannabis
21    Offenses.
22            (A) Upon June 25, 2019 (the effective date of
23        Public Act 101-27), the Department of State Police
24        shall review all criminal history record information
25        and identify all records that meet all of the
26        following criteria:

 

 

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1                (i) one or more convictions for a Minor
2            Cannabis Offense;
3                (ii) the conviction identified in paragraph
4            (2)(A)(i) did not include a penalty enhancement
5            under Section 7 of the Cannabis Control Act; and
6                (iii) the conviction identified in paragraph
7            (2)(A)(i) is not associated with a conviction for
8            a violent crime as defined in subsection (c) of
9            Section 3 of the Rights of Crime Victims and
10            Witnesses Act.
11            (B) Within 180 days after June 25, 2019 (the
12        effective date of Public Act 101-27), the Department
13        of State Police shall notify the Prisoner Review Board
14        of all such records that meet the criteria established
15        in paragraph (2)(A).
16                (i) The Prisoner Review Board shall notify the
17            State's Attorney of the county of conviction of
18            each record identified by State Police in
19            paragraph (2)(A) that is classified as a Class 4
20            felony. The State's Attorney may provide a written
21            objection to the Prisoner Review Board on the sole
22            basis that the record identified does not meet the
23            criteria established in paragraph (2)(A). Such an
24            objection must be filed within 60 days or by such
25            later date set by the Prisoner Review Board in the
26            notice after the State's Attorney received notice

 

 

SB2136- 44 -LRB102 17328 RJF 22818 b

1            from the Prisoner Review Board.
2                (ii) In response to a written objection from a
3            State's Attorney, the Prisoner Review Board is
4            authorized to conduct a non-public hearing to
5            evaluate the information provided in the
6            objection.
7                (iii) The Prisoner Review Board shall make a
8            confidential and privileged recommendation to the
9            Governor as to whether to grant a pardon
10            authorizing expungement for each of the records
11            identified by the Department of State Police as
12            described in paragraph (2)(A).
13            (C) If an individual has been granted a pardon
14        authorizing expungement as described in this Section,
15        the Prisoner Review Board, through the Attorney
16        General, shall file a petition for expungement with
17        the Chief Judge of the circuit or any judge of the
18        circuit designated by the Chief Judge where the
19        individual had been convicted. Such petition may
20        include more than one individual. Whenever an
21        individual who has been convicted of an offense is
22        granted a pardon by the Governor that specifically
23        authorizes expungement, an objection to the petition
24        may not be filed. Petitions to expunge under this
25        subsection (i) may include more than one individual.
26        Within 90 days of the filing of such a petition, the

 

 

SB2136- 45 -LRB102 17328 RJF 22818 b

1        court shall enter an order expunging the records of
2        arrest from the official records of the arresting
3        authority and order that the records of the circuit
4        court clerk and the Department of State Police be
5        expunged and the name of the defendant obliterated
6        from the official index requested to be kept by the
7        circuit court clerk under Section 16 of the Clerks of
8        Courts Act in connection with the arrest and
9        conviction for the offense for which the individual
10        had received a pardon but the order shall not affect
11        any index issued by the circuit court clerk before the
12        entry of the order. Upon entry of the order of
13        expungement, the circuit court clerk shall promptly
14        provide a copy of the order and a certificate of
15        disposition to the individual who was pardoned to the
16        individual's last known address or by electronic means
17        (if available) or otherwise make it available to the
18        individual upon request.
19            (D) Nothing in this Section is intended to
20        diminish or abrogate any rights or remedies otherwise
21        available to the individual.
22        (3) Any individual may file a motion to vacate and
23    expunge a conviction for a misdemeanor or Class 4 felony
24    violation of Section 4 or Section 5 of the Cannabis
25    Control Act. Motions to vacate and expunge under this
26    subsection (i) may be filed with the circuit court, Chief

 

 

SB2136- 46 -LRB102 17328 RJF 22818 b

1    Judge of a judicial circuit or any judge of the circuit
2    designated by the Chief Judge. The circuit court clerk
3    shall promptly serve a copy of the motion to vacate and
4    expunge, and any supporting documentation, on the State's
5    Attorney or prosecutor charged with the duty of
6    prosecuting the offense. When considering such a motion to
7    vacate and expunge, a court shall consider the following:
8    the reasons to retain the records provided by law
9    enforcement, the petitioner's age, the petitioner's age at
10    the time of offense, the time since the conviction, and
11    the specific adverse consequences if denied. An individual
12    may file such a petition after the completion of any
13    non-financial sentence or non-financial condition imposed
14    by the conviction. Within 60 days of the filing of such
15    motion, a State's Attorney may file an objection to such a
16    petition along with supporting evidence. If a motion to
17    vacate and expunge is granted, the records shall be
18    expunged in accordance with subparagraphs (d)(8) and
19    (d)(9)(A) of this Section. An agency providing civil legal
20    aid, as defined by Section 15 of the Public Interest
21    Attorney Assistance Act, assisting individuals seeking to
22    file a motion to vacate and expunge under this subsection
23    may file motions to vacate and expunge with the Chief
24    Judge of a judicial circuit or any judge of the circuit
25    designated by the Chief Judge, and the motion may include
26    more than one individual. Motions filed by an agency

 

 

SB2136- 47 -LRB102 17328 RJF 22818 b

1    providing civil legal aid concerning more than one
2    individual may be prepared, presented, and signed
3    electronically.
4        (4) Any State's Attorney may file a motion to vacate
5    and expunge a conviction for a misdemeanor or Class 4
6    felony violation of Section 4 or Section 5 of the Cannabis
7    Control Act. Motions to vacate and expunge under this
8    subsection (i) may be filed with the circuit court, Chief
9    Judge of a judicial circuit or any judge of the circuit
10    designated by the Chief Judge, and may include more than
11    one individual. Motions filed by a State's Attorney
12    concerning more than one individual may be prepared,
13    presented, and signed electronically. When considering
14    such a motion to vacate and expunge, a court shall
15    consider the following: the reasons to retain the records
16    provided by law enforcement, the individual's age, the
17    individual's age at the time of offense, the time since
18    the conviction, and the specific adverse consequences if
19    denied. Upon entry of an order granting a motion to vacate
20    and expunge records pursuant to this Section, the State's
21    Attorney shall notify the Prisoner Review Board within 30
22    days. Upon entry of the order of expungement, the circuit
23    court clerk shall promptly provide a copy of the order and
24    a certificate of disposition to the individual whose
25    records will be expunged to the individual's last known
26    address or by electronic means (if available) or otherwise

 

 

SB2136- 48 -LRB102 17328 RJF 22818 b

1    make available to the individual upon request. If a motion
2    to vacate and expunge is granted, the records shall be
3    expunged in accordance with subparagraphs (d)(8) and
4    (d)(9)(A) of this Section.
5        (5) In the public interest, the State's Attorney of a
6    county has standing to file motions to vacate and expunge
7    pursuant to this Section in the circuit court with
8    jurisdiction over the underlying conviction.
9        (6) If a person is arrested for a Minor Cannabis
10    Offense as defined in this Section before June 25, 2019
11    (the effective date of Public Act 101-27) and the person's
12    case is still pending but a sentence has not been imposed,
13    the person may petition the court in which the charges are
14    pending for an order to summarily dismiss those charges
15    against him or her, and expunge all official records of
16    his or her arrest, plea, trial, conviction, incarceration,
17    supervision, or expungement. If the court determines, upon
18    review, that: (A) the person was arrested before June 25,
19    2019 (the effective date of Public Act 101-27) for an
20    offense that has been made eligible for expungement; (B)
21    the case is pending at the time; and (C) the person has not
22    been sentenced of the minor cannabis violation eligible
23    for expungement under this subsection, the court shall
24    consider the following: the reasons to retain the records
25    provided by law enforcement, the petitioner's age, the
26    petitioner's age at the time of offense, the time since

 

 

SB2136- 49 -LRB102 17328 RJF 22818 b

1    the conviction, and the specific adverse consequences if
2    denied. If a motion to dismiss and expunge is granted, the
3    records shall be expunged in accordance with subparagraph
4    (d)(9)(A) of this Section.
5        (7) A person imprisoned solely as a result of one or
6    more convictions for Minor Cannabis Offenses under this
7    subsection (i) shall be released from incarceration upon
8    the issuance of an order under this subsection.
9        (8) The Department of State Police shall allow a
10    person to use the access and review process, established
11    in the Department of State Police, for verifying that his
12    or her records relating to Minor Cannabis Offenses of the
13    Cannabis Control Act eligible under this Section have been
14    expunged.
15        (9) No conviction vacated pursuant to this Section
16    shall serve as the basis for damages for time unjustly
17    served as provided in the Court of Claims Act.
18        (10) Effect of Expungement. A person's right to
19    expunge an expungeable offense shall not be limited under
20    this Section. The effect of an order of expungement shall
21    be to restore the person to the status he or she occupied
22    before the arrest, charge, or conviction.
23        (11) Information. The Department of State Police shall
24    post general information on its website about the
25    expungement process described in this subsection (i).
26    (j) Felony Prostitution Convictions.

 

 

SB2136- 50 -LRB102 17328 RJF 22818 b

1        (1) Expungement of felony prostitution convictions.
2            (A) The Illinois State Police and all law
3        enforcement agencies within the State shall
4        automatically expunge all criminal history records of
5        a conviction for felony prostitution committed prior
6        to the effective date of this amendatory Act of the
7        102nd General Assembly.
8            (B) Records shall be expunged pursuant to the
9        procedures set forth in subdivision (d)(9)(A) under
10        the following timelines:
11                (i) Records created prior to the effective
12            date of this amendatory Act of the 102nd General
13            Assembly, but on or after January 1, 2013, shall
14            be automatically expunged prior to January 1,
15            2022.
16                (ii) Records created prior to January 1, 2013,
17            but after, but on or after January 1, 200l, shall
18            be automatically expunged prior to January 1,
19            2023.
20                (iii) Records created prior to January 1, 2000
21            shall be automatically expunged prior to January
22            1, 2024.
23            (C) Nothing in this subsection (j) shall be
24        construed to restrict or modify an individual's right
25        to have that individual's records expunged, except as
26        otherwise may be provided in this Act, or diminish or

 

 

SB2136- 51 -LRB102 17328 RJF 22818 b

1        abrogate any rights or remedies otherwise available to
2        the individual.
3        (2) Any individual may file a motion to vacate and
4    expunge a conviction for a prior Class 4 felony violation
5    of prostitution. Motions to vacate and expunge under this
6    subsection (j) may be filed with the circuit court, Chief
7    Judge of a judicial circuit, or any judge of the circuit
8    designated by the Chief Judge. When considering the motion
9    to vacate and expunge, a court shall consider the
10    following:
11            (A) the reasons to retain the records provided by
12        law enforcement;
13            (B) the petitioner's age;
14            (C) the petitioner's age at the time of offense;
15        and
16            (D) the time since the conviction, and the
17        specific adverse consequences if denied. An individual
18        may file the petition after the completion of any
19        sentence or condition imposed by the conviction.
20        Within 60 days of the filing of the motion, a State's
21        Attorney may file an objection to the petition along
22        with supporting evidence. If a motion to vacate and
23        expunge is granted, the records shall be expunged in
24        accordance with subparagraph (d)(9)(A) of this
25        Section. An agency providing civil legal aid, as
26        defined in Section 15 of the Public Interest Attorney

 

 

SB2136- 52 -LRB102 17328 RJF 22818 b

1        Assistance Act, assisting individuals seeking to file
2        a motion to vacate and expunge under this subsection
3        may file motions to vacate and expunge with the Chief
4        Judge of a judicial circuit or any judge of the circuit
5        designated by the Chief Judge, and the motion may
6        include more than one individual.
7        (3) Any State's Attorney may file a motion to vacate
8    and expunge a conviction for a Class 4 felony violation of
9    prostitution. Motions to vacate and expunge under this
10    subsection (j) may be filed with the circuit court, Chief
11    Judge of a judicial circuit, or any judge of the circuit
12    court designated by the Chief Judge, and may include more
13    than one individual. When considering the motion to vacate
14    and expunge, a court shall consider the following reasons:
15            (A) the reasons to retain the records provided by
16        law enforcement;
17            (B) the petitioner's age;
18            (C) the petitioner's age at the time of offense;
19            (D) the time since the conviction; and
20            (E) the specific adverse consequences if denied.
21        If the State's Attorney files a motion to vacate and
22    expunge records for felony prostitution convictions
23    pursuant to this Section, the State's Attorney shall
24    notify the Prisoner Review Board within 30 days of the
25    filing. If a motion to vacate and expunge is granted, the
26    records shall be expunged in accordance with subparagraph

 

 

SB2136- 53 -LRB102 17328 RJF 22818 b

1    (d)(9)(A) of this Section.
2        (4) In the public interest, the State's Attorney of a
3    county has standing to file motions to vacate and expunge
4    pursuant to this Section in the circuit court with
5    jurisdiction over the underlying conviction.
6        (5) The Illinois State Police shall allow a person to
7    a use the access and review process, established in the
8    Illinois State Police, for verifying that his or her
9    records relating to felony prostitution eligible under
10    this Section have been expunged.
11        (6) No conviction vacated pursuant to this Section
12    shall serve as the basis for damages for time unjustly
13    served as provided in the Court of Claims Act.
14        (7) Effect of Expungement. A person's right to expunge
15    an expungeable offense shall not be limited under this
16    Section. The effect of an order of expungement shall be to
17    restore the person to the status he or she occupied before
18    the arrest, charge, or conviction.
19        (8) Information. The Illinois State Police shall post
20    general information on its website about the expungement
21    process described in this subsection (j).
22(Source: P.A. 100-201, eff. 8-18-17; 100-282, eff. 1-1-18;
23100-284, eff. 8-24-17; 100-287, eff. 8-24-17; 100-692, eff.
248-3-18; 100-759, eff. 1-1-19; 100-776, eff. 8-10-18; 100-863,
25eff. 8-14-18; 101-27, eff. 6-25-19; 101-81, eff. 7-12-19;
26101-159, eff. 1-1-20; 101-306, eff. 8-9-19; 101-593, eff.

 

 

SB2136- 54 -LRB102 17328 RJF 22818 b

112-4-19; 101-645, eff. 6-26-20; revised 8-18-20.)
 
2    Section 10. The Code of Criminal Procedure of 1963 is
3amended by changing Section 122-1 as follows:
 
4    (725 ILCS 5/122-1)  (from Ch. 38, par. 122-1)
5    Sec. 122-1. Petition in the trial court.
6    (a) Any person imprisoned in the penitentiary or otherwise
7confined, or subject to being confined by the State, local, or
8federal government as a result of a State criminal conviction,
9may institute a proceeding under this Article if the person
10asserts that:
11        (1) in the proceedings which resulted in his or her
12    conviction there was a substantial denial of his or her
13    rights under the Constitution of the United States or of
14    the State of Illinois or both;
15        (2) the death penalty was imposed and there is newly
16    discovered evidence not available to the person at the
17    time of the proceeding that resulted in his or her
18    conviction that establishes a substantial basis to believe
19    that the defendant is actually innocent by clear and
20    convincing evidence; or
21        (3) (blank).
22    (a-5) A proceeding under paragraph (2) of subsection (a)
23may be commenced within a reasonable period of time after the
24person's conviction notwithstanding any other provisions of

 

 

SB2136- 55 -LRB102 17328 RJF 22818 b

1this Article. In such a proceeding regarding actual innocence,
2if the court determines the petition is frivolous or is
3patently without merit, it shall dismiss the petition in a
4written order, specifying the findings of fact and conclusions
5of law it made in reaching its decision. Such order of
6dismissal is a final judgment and shall be served upon the
7petitioner by certified mail within 10 days of its entry.
8    (b) The proceeding shall be commenced by filing with the
9clerk of the court in which the conviction took place a
10petition (together with a copy thereof) verified by affidavit.
11Petitioner shall also serve another copy upon the State's
12Attorney by any of the methods provided in Rule 7 of the
13Supreme Court. The clerk shall docket the petition for
14consideration by the court pursuant to Section 122-2.1 upon
15his or her receipt thereof and bring the same promptly to the
16attention of the court.
17    (c) Except as otherwise provided in subsection (a-5), if
18the petitioner is under sentence of death and a petition for
19writ of certiorari is filed, no proceedings under this Article
20shall be commenced more than 6 months after the conclusion of
21proceedings in the United States Supreme Court, unless the
22petitioner alleges facts showing that the delay was not due to
23his or her culpable negligence. If a petition for certiorari
24is not filed, no proceedings under this Article shall be
25commenced more than 6 months from the date for filing a
26certiorari petition, unless the petitioner alleges facts

 

 

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1showing that the delay was not due to his or her culpable
2negligence.
3    When a defendant has a sentence other than death, no
4proceedings under this Article shall be commenced more than 6
5months after the conclusion of proceedings in the United
6States Supreme Court, unless the petitioner alleges facts
7showing that the delay was not due to his or her culpable
8negligence. If a petition for certiorari is not filed, no
9proceedings under this Article shall be commenced more than 6
10months from the date for filing a certiorari petition, unless
11the petitioner alleges facts showing that the delay was not
12due to his or her culpable negligence. If a defendant does not
13file a direct appeal, the post-conviction petition shall be
14filed no later than 3 years from the date of conviction, unless
15the petitioner alleges facts showing that the delay was not
16due to his or her culpable negligence.
17    This limitation does not apply to a petition advancing a
18claim of actual innocence.
19    (d) A person seeking relief by filing a petition under
20this Section must specify in the petition or its heading that
21it is filed under this Section. A trial court that has received
22a petition complaining of a conviction or sentence that fails
23to specify in the petition or its heading that it is filed
24under this Section need not evaluate the petition to determine
25whether it could otherwise have stated some grounds for relief
26under this Article.

 

 

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1    (e) A proceeding under this Article may not be commenced
2on behalf of a defendant who has been sentenced to death
3without the written consent of the defendant, unless the
4defendant, because of a mental or physical condition, is
5incapable of asserting his or her own claim.
6    (f) Only one petition may be filed by a petitioner under
7this Article without leave of the court. Leave of court may be
8granted only if a petitioner demonstrates cause for his or her
9failure to bring the claim in his or her initial
10post-conviction proceedings and prejudice results from that
11failure. For purposes of this subsection (f): (1) a prisoner
12shows cause by identifying an objective factor that impeded
13his or her ability to raise a specific claim during his or her
14initial post-conviction proceedings; and (2) a prisoner shows
15prejudice by demonstrating that the claim not raised during
16his or her initial post-conviction proceedings so infected the
17trial that the resulting conviction or sentence violated due
18process.
19(Source: P.A. 100-574, eff. 6-1-18; 101-411, eff. 8-16-19.)
 
20    Section 99. Effective date. This Act takes effect upon
21becoming law.