Getting a clean slate in the Prairie State

As professors at Northwestern Pritzer School of Law, Carolyn Frazier (left) and Julie Biehl played key roles in researching and developing the Illinois Juvenile Justice Commission’s expungement report. - Ashley E. Fischer
As professors at Northwestern Pritzer School of Law, Carolyn Frazier (left) and Julie Biehl played key roles in researching and developing the Illinois Juvenile Justice Commission’s expungement report. —Photo by Ashley E. Fischer

In Illinois, it’s easy for juveniles to create an arrest or court record that follows them everywhere. But it’s extremely difficult to erase that record under current law.

That was one of the principal findings from an April 28 report by the Illinois Juvenile Justice Commission, the product of a joint resolution Illinois lawmakers passed at the end of 2014 tasking the body with studying, analyzing and recommending best practices for keeping juvenile records confidential and ways to expunge them.

The report describes state laws surrounding juvenile records confidentiality and expungement as “failing in their goal of positioning individuals to contribute to society as adults.”

Because these records are so hard to expunge — and so easy to share — their presence is actively preventing youths and adults from obtaining quality jobs, education and housing, the commission found.

“We know the No. 1 thing we need to do for young people is to help get them jobs, education and housing and having records becomes a burden to all of the things we know work for young people to have a productive life and not become grown-up criminals,” says Julie Biehl, a member of the commission as well as a clinical associate law professor and director of the Children and Family Justice Center at Northwestern Pritzker School of Law.

According to the commission, the members of which were appointed by the governor, the process for expunging a juvenile court or arrest record is logistically complicated, expensive and fraught with legal pitfalls.

“Expungement is an idea, but it is much less a reality,” says George Timberlake, a former judge in Illinois’ 2nd Judicial Circuit and commission chair. “If there’s a surprise, it was the number of actual expungements in Illinois was so infinitesimal.”

How infinitesimal? From 2004 to 2014, about 1.8 million juveniles were arrested in Illinois, but only 0.29 percent — or about one-third of 1 percent — of those arrests were expunged, the commission found.

The report expresses this statistic in another way — among the 62 counties that responded to the study, 54 of them individually had nine or fewer expungements over the entire 10-year period.

“We would congratulate ourselves as a state for having a way for people to pay their debt to society, but when you look at the tiny number of expungements that actually take place, it means we’re kidding ourselves in thinking we’ve done what we need to do,” Timberlake says.

An arrest record is created whenever a juvenile is arrested, and a court record is generated whenever a detained juvenile is referred to court. These records still exist even if the charges are dropped; however, when a juvenile record is expunged, it is treated as if the offense never happened.

But the commission found many people — from the juveniles who were arrested to the police officers and circuit clerks keeping these records — are sometimes misinformed or just don’t understand the laws surrounding these records.

Chicago Lawyer spoke with two women who agreed to share their stories on their efforts to expunge their juvenile records. Because both women were interviewed by the commission in preparation for its report, their names have been changed, and they will be identified as Michelle and Andrea.

After Michelle was arrested for shoplifting when she was 16, she was told her arrest record would be automatically expunged when she turned 18. And, for a while, she believed it would be. She says she applied and was hired for jobs and her criminal record never came up.

When Andrea was in the eighth grade, she was arrested after getting into a physical altercation with a police officer who demanded she open her backpack at school. When she refused, he handcuffed her.

She became a ward of the state when she was 15 and moved into a group home managed by the Illinois Department of Human Services. More fights and more arrests would occur. She was placed on probation for a year when she was 16.

When asked if anyone ever mentioned to her that her records could be expunged, Andrea says, “I was never told that, and I always believed that juvenile records just go away. After you turn 18, they just go away. They’re not important, no one cares about them.”

It wasn’t until Michelle, now 22, and Andrea, 27, applied for certain jobs that they learned their juvenile arrest records didn’t vanish — and were preventing them from getting the jobs they wanted. For Michelle, it was a pharmacy technician position in Indiana; for Andrea, it was a position with a local youth development organization.

Andrea fared better than Michelle — she was able to convince her employer it did not have a legal right to look at her juvenile court records. The organization acquiesced, and she got the job.

Michelle, on the other hand, was required to prove her records were being expunged before she could proceed any further.

Both women attested to their surprise in learning their records still existed.

“I thought that it was all gone,” Michelle says. “I thought it was non-existent, because I had jobs before and they did a background check and nothing popped up. It was new to me that it didn’t go away.”

Illinois lawmakers enacted automatic expungement of juvenile records in 2015, so Michelle’s and Andrea’s assumptions were not entirely unfounded. The confusion, however, centers on the circumstances in which records are wiped clean.

Juvenile records are kept at the local level, but some are reported to the Illinois State Police if a juvenile over the age of 10 committed a crime that would have been considered a felony if he or she were an adult. Illinois’ automatic expungement provision only deletes records held by the state police — not the records held by local law enforcement agencies — and it only applies to juvenile arrest records that never went to court. Additionally, the state police are not bound to inform people that their juvenile records have been expunged.

The commission has criticized the automatic expungement process as being too limited to have a real impact. Only 27 percent of the juvenile arrests a local law enforcement agency makes are reported to state police.

Often, the records are also incomplete, which the commission says violates state law requiring them to be updated. According to an audit performed by the Illinois Criminal Justice Information Authority this year, 78 percent of the records in one of the databases the state police oversees are incomplete.

These incomplete records often won’t say how or whether the initial arrest was resolved. Without this information, the state police cannot expunge the record.

This can also lead to problems for juveniles and adults with other institutions.

“For example, law enforcement may inform a school that one of its students was arrested,” the commission report says. “If the student’s case is later dismissed or he is found not delinquent, however, no one is responsible for following up with the school to ensure that no disciplinary action or stigma results from the sharing of the initial arrest report.”

Current Illinois law also makes it difficult for people seeking to expunge their juvenile arrest and court records to obtain their records, the commission says. Under the current iteration of the Juvenile Court Act, these people need to visit each police station and clerk’s office they were processed at in order to get their records.

Both Michelle and Andrea say they experienced roadblocks while trying to obtain their records. At one point, Michelle was told by a police officer she could not get juvenile records because she was over age 18.

Andrea, meanwhile, says she still has one juvenile record that is not expunged because a clerk’s office told her it doesn’t know how to expunge her records.

“It would be like a waste of time for me to even go out there,” Andrea says.

Elizabeth Ullman, a clinical fellow at Northwestern’s Children and Family Justice Center, says it can be frustrating for lay people to deal with government agencies, especially when they are receiving conflicting information from different people.

“Expungement law says courts cannot be giving legal advice, but clerks can be gatekeepers,” Ullman says, who advised Michelle in getting her record expunged.

Compared to other legal topics, expungement should be a fairly easy process because all a person is doing checking off certain boxes, such as, Ullman says, “Are you over 18? Was it a felony or a misdemeanor?”

But what is hard — especially for people who aren’t lawyers — is navigating the legal steps to get to expungement and then dealing with officials in local agencies who might think the law says differently.

“I think it’s hard to advocate for yourself in these systems,” Ullman says. “You’re scared you’re going to make it worse and not better. I think a lot of people give up because they don’t know what to do.”

Expungement can also be an expensive process; the commission says a person can spend between $200 to $320 on fees to get just one record expunged.

Getting multiple records expunged can add up and require multiple trips to the courthouse, which could require taking multiple days off work, says Richard Cozzola, director of the Children & Families Practice Group at LAF.

“In the back of your mind, you’re thinking, ‘Do I really have to do it if it’s confidential?’” Cozzola says.

Both Michelle and Andrea say they had their fees waived. Andrea admits she would not have expunged her records if she had to pay those fees.

Ullman says people can get a certified disposition as a way to show employers what their case was and if it was adjudicated in their favor and when. These can work, although Ullman recommends getting an expungement.

At the same time, the person seeking to expunge their records must determine if expungement is even an option. The accepted understanding for many people is that a person can expunge these records after he or she turns 18, but it’s much more complicated than that, the commission says.

Say, for example, a 12-year-old boy was found guilty of trespassing but not found delinquent; he could petition to expunge his record after his 18th birthday. However, if he were arrested and not charged but still found delinquent, that kid would need to wait until he is 21 years old and until five years have passed since the end of his court proceedings to have his record expunged.

And if a juvenile has been adjudicated of first-degree murder or sex offenses, that record could not be expunged because these offenses would be considered felonies if committed as an adult.

When Illinois lawmakers extended the expungement right in 1982, the commission says the process was relatively easy. But as time went on, the Illinois General Assembly tweaked the act. According to Elizabeth Clarke, president of the Juvenile Justice Initiative, and Jennifer Vollen-Katz, interim executive director of the Juvenile Justice Project at the John Howard Association, many of the changes came in the late 1990s as the U.S. began to worry about the supposed rise of “juvenile superpredators” — a concept developed by former Princeton University professor John DiIulio Jr.

Juvenile superpredators “were characterized as ruthless sociopaths who lacked a moral conscience and were unconcerned about the consequences of their actions and undeterred by punishment,” DiIulio wrote in a 2010 joint amicus brief to the U.S. Supreme Court. DiIulio acknowledged in that brief that his earlier research and predictions regarding the rise of juvenile superpredators was wrong.

But as the concept was popularized, Clarke and Vollen-Katz say every state in the country began to pass laws in anticipation of a juvenile criminal uprising.

Among the changes Illinois lawmakers made to the Juvenile Court Act was in how the police interacted with juvenile offenders, Clarke says. Prior to the law’s rewrite, the police could take a juvenile offender into custody but not actually arrest him or her. That changed, Clarke says.

It was also during this time when lawmakers began to require law enforcement agencies to share their juvenile court and arrest records with the state police.

Since then, juvenile justice reformers have been chipping away at the changes Illinois lawmakers made in the 1990s, Clarke and Vollen-Katz say.

“We have these periods in the late ’80s and ’90s of tough on crime,” Vollen-Katz says. “What has that done? We’re sort of looking back at a period of time when we thought incarceration and incapacitation was necessary to keep most communities safe. What we are now seeing is the fallout from that.”

Another piece of this fallout, the commission says, is that many parties have a legal right to see a person’s juvenile record under the Juvenile Court Act — including the general public.

And the law does not penalize any individuals from illegally sharing these juvenile records. While the commission does not list any specific figures as to how widespread this problem is, at least 60 percent of the people the commission interviewed for its report say they were aware of this practice.

Adding to this is the fact that both former offenders and people within the criminal justice system do not always know who has access to see these records.

For instance, people with juvenile criminal records think their records are confidential because they are “sealed,” meaning no one can see them. Meanwhile, the commission found some of the police officers it interviewed believed juvenile court and arrest records become public when they turn 18 — they don’t.

In its report, the commission recommends restricting the number of parties that have access to juvenile arrest and court records and improving the automatic expungement process through an amendment to the Juvenile Court Act. The report includes legislative language lawmakers can wholly adopt and place into legislation.

This amendment, the commission says, would clarify that a juvenile adjudication is not a conviction, eliminate instances in which records can be shared with the general public and strengthen the definition of “sealing.” The report also proposes eliminating the fees related to expunging records and expanding the conditions under which a person can expunge their record.

However, with the report’s late April publication, Timberlake says he thinks it came too late for lawmakers to consider and enact any changes during the spring session.

Timberlake says he does not know if lawmakers are drafting legislation in response to the commission’s report, although he says he received positive reviews and follow-ups from certain lawmakers after its publication.

Lawmakers in Springfield are already considering a number of bills this year that would affect juvenile court and arrest records.

One such bill is HB 5017, which would allow juveniles under the age of 18 to expunge their records under certain circumstances.

The bill, authored by Rep. Barbara Wheeler, R-Crystal Lake, sailed out of the House on April 20 and the Senate on May 24. The bill is currently awaiting the governor’s signature as of press time.

Wheeler says she first learned about the expungement issue when she heard from a 15-year-old constituent who was worried about his chances to go to college after being arrested for retail theft and drug possession.

“If people hold that — especially with young kids — if they hold that against them with education and employment, we’re really not moving the needle at all in regard to criminal justice reform,” Wheeler says. “Kids make mistakes, they make bad choices, oftentimes under the influence. When they really want to have a fresh start and move forward, they should be provided every opportunity.”

“Otherwise, it’s just this vicious cycle,” she adds.

Michelle’s record was expunged in January. She is now a pharmacy technician in training, and she is going to school to become a health information technologist — someone who builds and codes websites for hospitals and insurance providers.

Andrea just graduated from Northeastern University with a degree in social work and is planning to become a probation officer. She last expunged a record in December 2015, leaving only one remaining in the system. She has a certified disposition from the court stating the arrest in question occurred when she was a juvenile, and it should not be held against her.

Andrea says she is not worried about her last outstanding juvenile record: “I know how to advocate for myself.”