Advancing Equal Justice Under Law for People with Criminal Records: Uniform Standards for Assessing Occupational Licensing Applications

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					Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING


ABSTRACT
The State of Illinois should empower - rather than exclude - qualified people with “a past” to
work in substantive employment. For people with criminal records, the licensing and
substantive employment standards and evaluation process for truck drivers, employment
counselors, barbers, nail technicians or realtors should be no less uniform or transparent than
the “character and fitness standards” for bar applicants with “past bad conduct red flags” or
criminal records who seek a law license.


“Equal Justice under Law” appears across the top of the United Stated Supreme Court building
and on countless courthouses across America. In practice, it is an abused if not nearly ignored
concept. But it is also not so impractical or hard to achieve if lawmakers have the courage to do
what is right and use common sense. Despite their self-inflicted status, people with criminal
records suffer from legalized discrimination more than any other class of Americans. They also
experience various forms of political and economic disenfranchisement, especially in
occupational licensing and substantive employment. It is not only wrong and unjust for a state
to have no standardized, uniform method for assessing the occupational license and state
employment applications of people with criminal records, but it is also against the economic
and social interests of the common good.


Assessment of license and state employment applications of people with criminal records
should be subject to uniform statewide standards that regulators and personnel administration
should apply in a transparent process. It is in no one’s interest to encourage recidivism by
relegating people with criminal records to the cyclical vagaries of lower level and often
unsustainable, minimum wage employment.


This paper proposes the “Illinois Uniform Standards in State Employment and Occupational
Licensing Act” to evaluate people with criminal records. Since the Illinois Judiciary Branch uses
clear standards that assess and sometimes permit those with criminal records to practice law,
then to practice “Equal Justice Under Law,” Illinois’s state personnel administration, and the
licensing agencies statewide should apply similar standards for other professions and
occupations in the same uniform and transparent manner.



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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

         "Equal Justice Under Law" is one of America's most firmly embedded and widely
         violated legal principles. It is a rhetorical flourish commonly encountered in
         ceremonial rhetoric and occasionally even constitutional decisions. But it comes
         nowhere close to describing the justice system in practice. While this is not, of
         course, the only legal context in which rhetoric outruns reality, it is one of the
         most disturbing, given the fundamental nature of the rights at issue.
                          -
                              Deborah Rhode, director of the Stanford Center on Ethics, Ernest W.
                              McFarland Professor of Law at Stanford University1



    I.       INTRODUCTION

         “Equal Justice Under Law” is like obscenity. It can be difficult to
                                                         2
define but we know it when we see it.                        “Doing the right thing” and using

common sense, however, are not as difficult to define, so they make useful




* Public Policy Liaison, Safer Foundation, Chicago. Adjunct Legal Studies Professor, Heller College of
Business, Roosevelt University (2003-2010). Staff Editor, Journal of Legal Studies Education; Reviewer,
Journal of Legal Studies in Business; American Business Law Journal. JD, 1986; De Paul College of Law;
Managing Editor of Lead Articles, De Paul Law Review, 1985-86, BA, Economics, 1980; University of
California, Santa Cruz.

Melissa McClure, Loyola, M.A. Criminal Justice, 2008, provided valuable assistance in preparation of this
paper.
1
  Deborah L. Rhode, Access to Justice, New York, NY: Oxford University Press, 2004; Deborah Rhode,
Ethics at Lunch time. http://www.scu.edu/ethics/publications/submitted/rhode/equal-justice.html
2
  There is famous legal precedent for using the colloquial expression "I know it when I see it" in
determining what the law should be. The phrase describes an early legal threshold of obscenity that is not
protected First Amendment free speech. The phrase appeared in Justice Potter Stewart’s famous
concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964), regarding possible obscenity in The Lovers:

         I shall not today attempt further to define the kinds of material I understand to be embraced
         within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed
         in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is
         not that.



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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

guidelines for achieving “Equal Justice Under Law” if we don’t trap

ourselves in the extremes of either reason or passion.3

          The familiar notion of equal access to justice often arises in

discussions of whether various measures of elitism are good or bad.4                               The

debate usually examines who has the most money to hire lawyers or

lobbyists to advance and protect rights or private interests, and whether

doing so is too “elitist”5 or insufficiently egalitarian.                   Perhaps

surprisingly, these considerations and assumptions in the context of

empowering people with criminal records are partly unnecessary and

sometimes fallacious. With some thought and the correct political will,

through legislation that costs little if anything to implement, administer or

enforce, it is entirely possible to achieve “Equal Justice Under Law.”

There are solutions that benefit the common good6 by empowering the

3
  Sophocles, Antigone. Creon would not listen to common sense when considering what his laws should
be, or how to enforce them. Antigone’s downfall was her passion.
4
    Henry III, W. (1994). In Defense of Elitism. NY: Doubleday.
5
  Marc Galanter, "Why the Haves Come Out Ahead? Speculators on the Limits of Legal Change," 9 Law
and Soc'y Rev. 95 (1974).
6
  Amitai Etzioni, A 308. “Communitarianism,” Encyclopedia of Community: From the Village to the
Virtual World, Vol 1, A-D, Karen Christensen and David Levinson, eds. (Sage Publications, 2003) pp. 224-
228. “Communitarianism is a social philosophy that maintains that society should articulate what is
good–that such articulations are both needed and legitimate. Communitarianism is often contrasted with
classical liberalism, a philosophical position that holds each individual should formulate the good on his
or her own. Communitarians examine the ways shared conceptions of the good (values) are formed,
transmitted, justified, and enforced. Hence their interest in communities (and moral dialogues within


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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

most vulnerable communities who most need the benefits and protections

of such legislation.

        For people with criminal records,7 who despite their self-inflicted

status are among America’s most vulnerable communities, there are

essentially only three options available to criminal justice administrators.

Two of these rarely deter crime, are financially untenable, and both are

politically problematic: the death penalty and long-term warehousing of

prisoners.       The third option adds to, rather than detracts from public

coffers: employment for those who have paid their dues and have returned

to society.


        II.     THE CASE FOR UNIFORM STANDARDS IN EVALUATING PEOPLE
        WITH CRIMINAL RECORDS.

        There is little direct law governing access to occupational licensing

and substantive employment for people with criminal records.                                 For the

most part, people with criminal records are not a protected class under


them), historically transmitted values and mores, and the societal units that transmit and enforce values
such as the family, schools, and voluntary associations (social clubs, churches, and so forth), which are all
parts of communities.”
7
  “Person with a criminal record” is neutral and more appropriate than terms like “ex-offender,” “ex-
con,” or “felon,” because “person with a criminal record” first literally acknowledges and dignifies the
person, and describes one of the person’s many attributes, i.e., “with a criminal record.” Whereas, “ex-
offender,” “ex-con” and “felon” operate as one-dimensional, societal cattle brands that define the person
as bad rather than a person who committed a bad act.



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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

federal civil rights or state human rights legislation.8                    Discriminatory

barriers to employment that would be actionable or illegal as civil rights or

human rights violations if suffered by people without criminal

records are with some exceptions, legal to inflict upon people who do have

criminal records.         This is so despite the following language in the Illinois

Constitution:

           All penalties shall be determined both according to the seriousness
           of the offense and with the objective of restoring the offender to
           useful citizenship...9


And so it is the concept of “Equal Justice Under Law,” which is engraved

across the top of the United States Supreme Court building and countless

courthouses throughout America, is largely a practical fiction.

           The finite part of felony is the direct consequence: the criminal

sentence (e.g., incarceration, parole, home confinement, probation).                             The

indefinite punishments that do everything but restore people “to useful

citizenship”10 are the collateral consequences of conviction:11 all the post-

8
  With some exceptions, America's federal civil rights laws, and most of the fifty states' human rights or
fair employment laws, and a few municipal ordinances, allow employers to refuse employment to people
with criminal records - who have paid their dues to society - for no other reason than their past criminal
convictions; no matter how unrelated to a potential job one's conviction may be, and without regard for
whether something like a one-time non-violent offense was committed in one's youth or long ago.
9
     Illinois Constitution, SECTION 11. LIMITATION OF PENALTIES AFTER CONVICTION.
10
     Id, at fn 9.


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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

sentence de facto penalties that people with criminal records endure, long

after their sentences have terminated.

        Historically, the American public has been disposed to provide little

if any access to meaningful employment for people with criminal records,

of whom there are perhaps 65 – 70 million12; approximately 700,000

annually who return from prisons and nearly nine million who return from

local jails.13 Mostly, the American experience concerning “Equal Justice

Under Law” for people with criminal records has been the opposite of

equal. It certainly has not been civil or human when it comes to rights. The

collective attitude and practice has been for the US Congress and state


11
   See e.g., Kelly Salzmann & Margaret Colgate Love, Internal Exile: Collateral Consequences of
Conviction in Federal Laws and Regulations (ABA 2009), available at
http://www.abanet.org/cecs/internalexile.pdf. See also Jeremy Travis, Invisible Punishment: An
Instrument of Social Exclusion, in Invisible Punishment: The Social Costs of Mass Imprisonment 16, 19
(Meda Cesney-Lind & Marc Mauer eds., 2002); Nora V. Demleitner, Preventing Internal Exile: The Need
for Restrictions on Collateral Sentencing Consequences, 11 Stan. L. & Pol’y Rev. 153 (1999); Bureau of
Justice Statistics, U.S. Dep’t of Justice, Use and Management of Criminal History Record Information: A
Comprehensive Report 25 (1993)). See also, Hynes, C. (2010). After release: The Challenge of Successful
Reentry. Criminal Justice. 24:4.
12
  According to a 2003 report of the Department of Justice, nearly 25% of the entire population (some 71
million people) had some kind of a criminal record. United States Department of Justice, Office of Justice
Programs, Attorney General Ashcroft Announces Nationwide Effort To Reintegrate Offenders Back Into
Communities, www.reentry.gov/ashcroftpr.html.
13
  “A ‘felon class’ of more than 16 million felons and ex-felons, representing 7.5 percent of the adult
population...” Uggen, C., Manza, J. & Thompson, M. (2006). Citizenship, Democracy, and the Civic
Reintegration of Criminal Offenders. The ANNALS of the American Academy of Political and Social Science
2006; 605. http://ann.sagepub.com/cgi/reprint/605/1/281. See also, Allen J. Beck, “The Importance of
Successful Reentry to Jail Population Growth” (presentation at The Jail Reentry Roundtable of the Urban
Institute, Washington, DC, June 27, 2006).



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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

legislatures nationwide to avoid the impolitic and re-election squashing

appearance of coddling criminals.                  The failed approach has been to create

untold collateral consequences of conviction, among which are significant

statutory and administrative barriers to occupational licensing and
                                     14
substantive employment.

        This is end-of-the line thinking, because unemployed people with

criminal records pose a greater risk to public safety than those who are

employed.15 Therein lies the simplest case for “Equal Justice Under Law”

for people with criminal records. People with criminal records for the most

part are not a protected class for civil rights or human rights purposes,

because the federal civil rights and state human rights laws have not

progressed that far (except in rare and limited exceptions).                          But this lack of

“protected class” status does not mean that for people with criminal

records there should not be “Equal Justice Under Law.”




14
   Andrew von Hirsch & Martin Wasik, Civil Disqualification Attending Conviction: A Suggested
Conceptual Framework, 56 Cambridge L.J. 599, 605 (1997). cited in Margaret Colgate Love, “Starting Over
With a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code,” 30 Fordham Urban Law
Journal 101 (2003).
15
   Anonymous. Policies and Resolutions. (2009). Corrections Today, April 1, 87-92.; Krienert, J. & Fleisher,
M. (2001). Economic rehabilitation: A reassessment of the link between employment and
crime. Corrections Management Quarterly, 5(4), 5. Pogarsky, G. (2006). Criminal records, employment, and
recidivism. Criminology & Public Policy. 5:3.



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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

          Anyone can sell hot dogs or sweep floors. But low level or minimum

wage jobs are essentially unsustainable roads to nowhere. They do nothing

to allow a person with a criminal record to get any kind of foothold for

advance themselves, let alone put food on the table, pay child support,

pursue ones education part-time, and the like. These types of jobs for

people with criminal records do not protect the public from recidivism,

because an employment environment where dead end jobs are the norm

for people with criminal records is a recipe for crime16.   It’s hard to lift

oneself up by the bootstraps when worrying about the next meal.

          This paper and the legislation urged here are reminders that we need

not abandon our aspirations for “Equal Justice Under Law” when it comes

to smart public policy for people with criminal records who must work or

will most likely recidivate. The objective of this paper is, using the State of

Illinois as an example, to explore the outlines of one small but serious

commitment to “equal justice” that would cost state treasuries virtually

nothing: legislated uniform standards in assessing the occupational license

and state employment applications of people with criminal records. It’s the

right thing to do and it’s common sense.


16
     Ibid. Pogarsky, G.



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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

        When people commit crimes, serve their sentences and return to their

communities as the vast majority do17, we expect them to live and behave

as productive and law-abiding citizens.                    But these expectations are

unreasonable and unjust when we perpetuate economic

disenfranchisement of people with criminal records because post-

conviction access to employment is increasingly limited.                            While we may

say one’s rights are “restored” after they serve their sentence, this is often

untrue regarding obtaining occupational licenses or meaningful and

sustainable employment.

        The preamble to the Illinois Constitution contains meaningful,

germane language that directly supports the notion that the State of Illinois

personnel administration, the Illinois Department of Financial and

Professional Regulation (IDFPR), the Secretary of State, Department of

Labor, and any other license regulator should be required to apply uniform

standards when evaluating people with criminal records.

        We, the People of the State of Illinois … to provide for the health,
        safety and welfare of the people; eliminate poverty and inequality;
17
   “The number of state and federal inmates released from prison more than quadrupled between 1980
and 2005, from about 148,000 individuals to over 698,000.” Hynes, C. (2010). After release: The challenge
of successful reentry. Criminal Justice. 24:4.; “More than 95 percent of incarcerated people will eventually
be released from prison…” Owens, C. (2009). Social symbols, stigma, and the labor market experiences of
former prisoners. Journal of Correctional Education. 60:4.



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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

          assure legal, social and economic justice; provide opportunity for the
          fullest development of the individual; … - do ordain and establish
          this Constitution for the State of Illinois. 18
For people with criminal records, the denial of access to employment,

education, housing and other social and welfare benefits long after

completion of their criminal sentence breeds recidivism. These collateral

consequences deprive those who need them most of the means and

opportunities to reestablish themselves as honorable, law abiding, and tax-

paying human beings.19




III.      A MODEST PROPOSAL FOR ILLINOIS: INFUSING REASON IN STATE
          EMPLOYMENT AND LICENSING PRACTICES.


          In Illinois, even some people with past bad acts, including those who

are charged with or who have felony convictions, can become lawyers.                           A

criminal conviction is not an absolute obstacle to bar admission. There is no

vagueness or lack of clarity in the process. The Character and Fitness

Questionnaire and analysis are the same for all similarly situated bar


18
     Preamble to the Illinois Constitution.
19
  Fruqan Mouzon, Forgive us our Trespass: The Need for Federal Expungement Legislation, 39 U
MEM. L. REV. 1, 4 (Fall 2008) citing ABA STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL
SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS R-4 (3D ED.
2003)



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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

applicants, and it is extremely detailed.                   So if the process of assessing

people with criminal records for bar admission is uniform and equal, why

is it not equal for all other people with criminal records who seek other

Illinois licenses or state employment?



        A.     The Illinois Supreme Court Assures Equal Justice for Bar
        Applicants with “Past Conduct Red Flags.”


        The Illinois Supreme Court, its Board of Admissions to the Bar, the

Committee on Character and Fitness, and every other Supreme Court and

committee analog in the United States, have exclusive responsibility for

regulation of lawyers and the administration of licensing assessment for

admission to the bar for new lawyers or lawyers from other jurisdictions.20

        In sum, it’s a three-step bar admission process as set forth below. (1)

Does the applicant meet the essential eligibility requirements?21 (2) If the


20
  Illinois Supreme Court Rules 701, 704 and 708 govern and contain the Character and Fitness
Committee’s inquiry and assessment standards for determining the moral character and general fitness of
applicants to the Illinois bar.
21
   Rule 6.3. The essential eligibility requirements for the practice of law include the following: (1) the
ability to learn, to recall what has been learned, to reason, and to analyze; (2) the ability to communicate
clearly and logically with clients, attorneys, courts, and others; (3) the ability to exercise good judgment in
conducting one’s professional business; (4) the ability to conduct one self with a high degree of honesty,
integrity, and trustworthiness in all professional relationships and with respect to all legal obligations; (5)
the ability to conduct oneself with respect for and in accordance with the law and the Illinois Rules of
Professional Conduct; (6) the ability to avoid acts that exhibit disregard for the health, safety, and welfare
of others; (7) the ability to conduct oneself diligently and reliably in fulfilling all obligations to clients,


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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

applicant discloses any “past conduct red flags,” of which the list is

exhaustive and thorough, 22 then (3) the Character and Fitness Committee

engages in a substantial “rational relationship analysis” to determine,

essentially, if the applicant’s questionable past conduct is sufficiently

attenuated from the person, i.e., has the applicant become fit to practice

law? It is precisely this type of “rational relationship analysis” which the

IDFPR and other regulators and all state employment gatekeepers should

be required by law to conduct and document for every applicant with a

criminal record.

        Importantly, the language of the “rational relationship analysis” rule

for lawyers begins with the presumption that bad conduct does not create a

per se obstacle or disqualification:


attorneys, courts, creditors, and others; (8) the ability to use honesty and good judgment in financial
dealings on behalf of oneself, clients, and others; (9) the ability to comply with deadlines and time
constraints; and (10) the ability to conduct oneself properly and in a manner that engenders respect for
the law and the profession.
22
   Rule 6.4. The revelation or discovery of any of the following should be treated as cause for further
detailed inquiry before the Committee decides whether the law student registrant or applicant possesses
the requisite character and fitness to practice law: (a) unlawful conduct; (b) academic misconduct; (c)
making false statements, including omissions; (d) misconduct in employment; (e) acts involving
dishonesty, fraud, deceit or misrepresentation; (f) abuse of legal process; (g) neglect of financial
responsibilities; (h) neglect of professional obligations; (i) violation of an order of a court; (j) evidence of
conduct indicating instability or impaired judgment; (k) denial of admission to the bar in another
jurisdiction on character and fitness grounds; (l) disciplinary action by a lawyer disciplinary agency or
other professional disciplinary agency of any jurisdiction; (m) acts constituting the unauthorized practice
of law; (n) failure to comply with the continuing duty of full disclosure to the Board and the Committee
subsequent to the date of registration or application. (emphasis added)



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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING

        Rule 6.5. In determining whether to recommend to the Board that the present
        character and fitness of a registrant or applicant qualifies him or her for
        admission to the practice of law, the Committee shall consider the following
        factors in assigning weight and significance to prior misconduct (a) age at the
        time of the conduct; (b) recency of the conduct; (c) reliability of the information
        concerning the conduct; (d) seriousness of the conduct; (e) factors underlying the
        conduct; (f) cumulative effect of the conduct; (g) ability and willingness to accept
        responsibility for the conduct; (h) candor in the admissions process; (i)
        materiality of any omissions or misrepresentations; (j) evidence of rehabilitation;
        and (k) positive social contribution since the conduct.

        Imagine if this detailed process for lawyers was as vague as it is for

non-lawyers almost everywhere else throughout Illinois government,

which regulates over 100 occupations and professions that require state

granted licenses, together with thousands of state jobs annually.23 The

Illinois bar application process is not vague and non-uniform for lawyers

because lawyer-regulators and law license applicants are all trained to

make and expect decisions based upon due process, reason and analysis.

        The Illinois Supreme Court would never countenance a character and

fitness process that was vague and left to a regulator’s non-transparent

discretion. That would be intellectual and legal chaos.                        Neither law license

applicants nor anyone else in the legal profession would tolerate an

approach that for the most part lacks uniformity, substantive and

23
   There is one section of the Illinois Criminal Code (730 ILCS 5/5-5-5) that facially requires some
“rational relationship” analysis in limited licensing circumstances. But, as discussed below, some of the
most important operative terms and standards in that Code section are left undefined and vague, which
in the author’s view render the entire section meaningless and subject to the whim or caprice of a license
regulator.


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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

procedural due process, and that would lack “Equal Justice Under Law”

when similarly situated bar applicants come up for review.

        Essentially, the approach of the Illinois Judiciary Branch to licensing

aspiring lawyers with a “past” or a “background” resembles and integrates
                                            24
into Illinois’s “law of lawyers”                 some of the long-standing policies of the

federal Equal Employment Opportunity Commission (EEOC).25                                      The

Illinois Supreme Court’s Character and Fitness “analysis” for bar

applicants protects an applicant with “past conduct red flags” or a

conviction record from automatic rejection from bar membership.

Likewise, EEOC policy protects job applicants from being denied

employment based solely on his or her prior conviction.

        In interpreting Title VII of the Civil Rights Act, courts have held that

a policy of disqualifying applicants on the basis of conviction records may

disproportionately exclude some minority groups.26                            An employer can


24
  The Illinois Constitution gives the Judiciary branch of government, i.e., the Illinois Supreme Court, the
exclusive power to make the “law of lawyers.” Cite Constitution.
25
   The EEOC enforces, among other laws, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq. (Title VII). Title VII prohibits employment discrimination on the bases of race, color, sex,
religion, and national origin. Title VII bars use of an employment policy that appears to be neutral but
that disproportionately excludes protected groups, unless the policy is job related and consistent with
business necessity.
26
   See, e.g., Green v. Missouri Pacific Railroad Company, 523 F.2d 1290 (8th Cir. 1975), appeal after
remand, 549 F.2d 1158 (8th Cir. 1977). The EEOC Policy Statement on the Issue of Conviction Records
asserts that an employer's policy or practice of excluding individuals from employment on the basis of
their conviction records has an adverse impact on African American and Latino workers in light of


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AND LICENSING

justify such a policy only if it can show either that: (a) the policy does not

have the exclusionary effect in his or her workforce, or (b) the employer has

a business need to bar employees with conviction records from the job

being sought.         The following three factors are weighed in determining

whether such a business need exists:

                1.       The nature and gravity of the offense or offenses for

                         which the applicant was convicted;

                2.       The time that has passed since the conviction and/or

                         completion of the sentence; and

                3.       The nature of the job held or sought.

The foregoing analyses employed by the Illinois Supreme Court and the

EEOC are precisely the types of analyses that should be mandated by

statute across and throughout Illinois in its dual role as (a) an employer,

and (b) a licensor of private sector professionals and trades people.




statistics showing that they are convicted at a disproportionately higher rate than their representation in
the population. Refusing to hire people with conviction records can have a disparate impact, and may
therefore be unlawful under the federal Civil Rights Act of 1964.



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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING

      B.    Illinois’ State Employment and Licensing Methods Lack
      Safeguards to Achieve Equal Justice for People with Criminal
      Records.


      Currently, if and when the State of Illinois considers the employment

application of a person with a criminal record (as opposed to rejecting the

applicant solely because of the criminal record), there are no statutes,

administrative rules, regulations, standards or procedures for assessing

that person’s criminal record as it relates to the job he or she seeks. Unlike

the Illinois Supreme Court’s rules and procedures, the State of Illinois as an

employer is free to assess a person’s criminal record as it relates to a job

application any way the State chooses – or not at all.    There is no

explanation required for a rejection nor is there any appeal or other

recourse.

      This lack of standards exists not only within the State of Illinois in its

role as an employer, but also in its role as regulator and licensor of many

trades people and non-attorney professionals. As explained below, there

are slight licensing exceptions to the complete lack of standards, but where

there are any standards at all, they are stated in problematic and largely

undefined or overly broad terms that can lead to the same lack of

accountability and transparency as having no standards at all.


                                                                                   16
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

          For example, people with criminal records who seek a commercial

truck driving license or a commercial truck driver instructor’s license from

the Secretary of State face an impossible trick bag.                      There the inquiry boils

down in most cases to whether                   - all things being equal – the applicant has

“good moral character.”               While the statutes governing licensing of

commercial truck drivers nowhere say that a felony conviction

automatically means the applicant lacks good moral character, this is

precisely how the Secretary of State currently interprets and applies the

statute.27 The applicable statutes in fact say simply that a conviction is one

factor to be considered.28             However, if an applicant has a conviction, the

rejection letter comes back stating that the conviction proves the lack of

good moral character to drive trucks or teach truck driving.29 There is no

factual inquiry, no opportunity to present evidence in support of the

applicant’s qualifications and character, and no opportunity for a hearing.

27
  TITLE 92: TRANSPORTATION, CHAPTER II: SECRETARY OF STATE, PART 1060 COMMERCIAL
DRIVER TRAINING SCHOOLS,    SECTION 1060.20 REQUIREMENTS FOR SCHOOL LICENSES.
28
     E.g., Section 1060.20. Requirements for School Licenses a) The Secretary of State shall not issue, or
           shall deny, cancel, suspend or revoke, a driver training school license unless:

                  4)     The applicant is of good moral character as required pursuant to IVC Section 6-
                         402(a). In making a determination of good moral character, the Department is not
                         limited to, but may consider, the following:

                           A) Whether the applicant has been convicted of a felony or a misdemeanor.
29
  A copy of an applicant rejection letter based soley on the fact of a felony as “proof” of bad moral
character from the Secretary of State is available upon request from the Author or Safer Foundation.


                                                                                                             17
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

           This is hardly due process.       In fact, this is precisely opposite from

the example set by the Illinois Supreme Court for bar applicants with “a

past.” But the situation is hardly unfixable.



           C.        Precedents for Change and Reform

           The State of New York and the City of Chicago are noteworthy

examples that provide worthy models for Illinois.

           1.         The New York Statute

           The State of New York has a state law that requires “rational

relationship” analysis.30         Article 23a of New York State's Correction Law

prohibits public and private employers from denying employment to

individuals solely because they were previously convicted of one or more

criminal offenses.31 The New York statute requires employers to consider

specific enumerated factors concerning a previously convicted individual's

offense and life circumstances in much the same way the Illinois Supreme

Court considers for bar applicants with a “past.”32 The New York statute

also requires employers to submit a written statement, within 30 days of

30
  NY Code - Article 23-A: LICENSURE AND EMPLOYMENT OF PERSONS PREVIOUSLY
CONVICTED OF ONE OR MORE CRIMINAL OFFENSES. Sec. 753
31
     Id., Sec. 752
32
     Id., Sec. 753.


                                                                                        18
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

request by a previously convicted person, stating the reasons for which the

individual was denied employment.33                 And, employers who violate the

New York statute can be charged with a misdemeanor.34

           2.       City of Chicago Hiring Guidelines

      Like the State of New York, the sole fact of a criminal record does not

automatically disqualify an applicant for employment with the City of

Chicago. The City’s Department of Human Resources maintains “rational

relationship” guidelines for reviewing criminal convictions on a case-by-

case basis. The goal is to ensure that people with criminal records can be

hired into appropriate positions that do not place undue risk upon the City.

The case-by-case review includes these factors:


      •    Nature of specific offense(s) for which the candidate was convicted;
      •    Nature of sentencing;
      •    Number of convictions;
      •    Length of time that has passed since the conviction(s);
      •    Relationship between the criminal act(s) for which the candidate was convicted
           and the nature of the work for which the individual is being considered;
      •    Age of the candidate at the time of the conviction;
      •    Evidence of rehabilitation (i.e. whether candidate has completed a treatment or
           counseling program or received a certification of relief from disabilities or good
           conduct);
      •    Extent to which the individual has been open, honest and cooperative with the
           City in examining his or her background; and

33
     Id., at Sec. 754
34
     Id., at Sec. 755


                                                                                                19
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

      •   Any other information relevant to the candidate’s suitability.

As the City aptly notes, “…[T]hese guidelines will give people with
criminal records a fair shot, though not a leg up at landing a job with the
            35
City.”




D.        Eliminating Illinois’s Irrational “Rational Relationship” Standards.

          To the extent Illinois has any “rational relationship” standards for

assessing people with criminal records for employment or licensing, these

standards are limited and appear nowhere in the Illinois Labor Code or

Illinois Administrative Code (where one might expect to find them).

Rather, they appear in one section of the Illinois Criminal Code.36

          The scope of these standards relates only to the 27 professions

identified therein, which are only a portion of the licenses or certifications

available in Illinois. They are simply the 27 discretionary licenses subject to




35
 http://egov.cityofchicago.org/city/webportal/portalContentItemAction.do?contentOID=536951275&c
ontenTypeName=COC_EDITORIAL&topChannelName=Dept&blockName=Mayors+Office%2FTest%2F
I+Want+To&context=dept&channelId=0&programId=0&entityName=Mayors+Office&deptMainCategor
yOID=-536882061
36
     730 ILCS 5/5-5-5.



                                                                                                  20
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

the Department of Financial and Professional Regulation, together with an

employment agency license under the Department of Labor’s jurisdiction.37

                 The section, 730 ILCS 5/5-5-5, is entitled: !”L!o!s!s! !a!n!d! !R!e!s!t!o!r!a!t!i!o!n! !o!f!

!R!i!g!h!t!s!.!”               The title of this section arguably reveals Illinois’s collective

attitude regarding the treatment of people with criminal records in

licensing and substantive employment: that in application and attitude, a

criminal conviction does presumptively force a forfeiture and loss of rights

which must be restored. This approach is of course, as demonstrated,

directly contrary to the more progressive notion reflected in long-standing

EEOC policy and also by the Illinois Supreme Court, i.e., that a conviction

alone does not cause an automatic forfeiture of access to employment.




37
                !730 ILCS 5/5-5-5 (!1!)! -(27). (1) t!h!e! !A!n!i!m!a!l! !W!e!l!f!a!r!e! !A!c!t!;! !… !(!2!)! !t!h!e! !I!l!l!i!n!o!i!s! !A!t!h!l!e!t!i!c! !T!r!a!i!n!e!r!s! !P!r!a!c!t!i!c!e! !A!c!t!;!
(!3!)! !t!h!e! !B!a!r!b!e!r!,! !C!o!s!m!e!t!o!l!o!g!y!,! !E!s!t!h!e!t!i!c!s!,! !a!n!d! !N!a!i!l! T!e!c!h!n!o!l!o!g!y! !A!c!t! !o!f! !1!9!8!5!;! !(!4!)! !t!h!e! !B!o!i!l!e!r! !a!n!d! !P!r!e!s!s!u!r!e!
!V!e!s!s!e!l! !R!e!p!a!i!r!e!r! R!e!g!u!l!a!t!i!o!n! !A!c!t!;! (!5!)! !t!h!e! !P!r!o!f!e!s!s!i!o!n!a!l! !B!o!x!i!n!g! !A!c!t!;! !(!6!)! !t!h!e! !I!l!l!i!n!o!i!s! !C!e!r!t!i!f!i!e!d! !S!h!o!r!t!h!a!n!d!
 !R!e!p!o!r!t!e!r!s! !A!c!t! o!f! !1!9!8!4!;! !(!7!)! !t!h!e! !I!l!l!i!n!o!i!s! !F!a!r!m! !L!a!b!o!r! !C!o!n!t!r!a!c!t!o!r! !C!e!r!t!i!f!i!c!a!t!i!o!n! A!c!t!;! !(!8!)! !t!h!e! !I!n!t!e!r!i!o!r! !D!e!s!i!g!n! !T!i!t!l!e!
  !A!c!t!;! (!9!)! !t!h!e! !I!l!l!i!n!o!i!s! !P!r!o!f!e!s!s!i!o!n!a!l! !L!a!n!d! !S!u!r!v!e!y!o!r! !A!c!t! !o!f! 1!9!8!9!;! !(!1!0!)! !t!h!e! !I!l!l!i!n!o!i!s! !L!a!n!d!s!c!a!p!e! !A!r!c!h!i!t!e!c!t!u!r!e! !A!c!t! !o!f!
   !1!9!8!9!;! (!1!1!)! !t!h!e! !M!a!r!r!i!a!g!e! !a!n!d! !F!a!m!i!l!y! !T!h!e!r!a!p!y! !L!i!c!e!n!s!i!n!g! !A!c!t!;! !(!1!2!)! !t!h!e! !P!r!i!v!a!t!e! !E!m!p!l!o!y!m!e!n!t! !A!g!e!n!c!y! !A!c!t!;! (!1!3!)!
    !t!h!e! !P!r!o!f!e!s!s!i!o!n!a!l! !C!o!u!n!s!e!l!o!r! !a!n!d! !C!l!i!n!i!c!a!l! P!r!o!f!e!s!s!i!o!n!a!l! !C!o!u!n!s!e!l!o!r! !L!i!c!e!n!s!i!n!g! !A!c!t!;! !(!1!4!)! !t!h!e! !R!e!a!l! !E!s!t!a!t!e! !L!i!c!e!n!s!e!
     !A!c!t! !o!f! !2!0!0!0!;! !(!1!5!)! !t!h!e! !I!l!l!i!n!o!i!s! !R!o!o!f!i!n!g! !I!n!d!u!s!t!r!y! !L!i!c!e!n!s!i!n!g! !A!c!t!;! !(!1!6!)! !t!h!e! !P!r!o!f!e!s!s!i!o!n!a!l! !E!n!g!i!n!e!e!r!i!n!g! !P!r!a!c!t!i!c!e!
      !A!c!t! !o!f! 1!9!8!9!;! !(!1!7!)! !t!h!e! !W!a!t!e!r! !W!e!l!l! !a!n!d! !P!u!m!p! !I!n!s!t!a!l!l!a!t!i!o!n! C!o!n!t!r!a!c!t!o!r!'!s! !L!i!c!e!n!s!e! !A!c!t!;! !(!1!8!)! !t!h!e! !E!l!e!c!t!r!o!l!o!g!i!s!t!
       !L!i!c!e!n!s!i!n!g! !A!c!t!;! (!1!9!)! !t!h!e! !A!u!c!t!i!o!n! !L!i!c!e!n!s!e! !A!c!t!;!(!2!0!)! !I!l!l!i!n!o!i!s! !A!r!c!h!i!t!e!c!t!u!r!e! !P!r!a!c!t!i!c!e! !A!c!t! !o!f! !1!9!8!9!;! (!2!1!)! !t!h!e! !D!i!e!t!e!t!i!c!
        !a!n!d! !N!u!t!r!i!t!i!o!n! !S!e!r!v!i!c!e!s! !P!r!a!c!t!i!c!e! A!c!t!;! !(!2!2!)! !t!h!e! !E!n!v!i!r!o!n!m!e!n!t!a!l! !H!e!a!l!t!h! !P!r!a!c!t!i!t!i!o!n!e!r! !L!i!c!e!n!s!i!n!g! A!c!t!;! !(!2!3!)! !t!h!e!
         !F!u!n!e!r!a!l! !D!i!r!e!c!t!o!r!s! !a!n!d! !E!m!b!a!l!m!e!r!s! !L!i!c!e!n!s!i!n!g! C!o!d!e!;! !(!2!4!)! !t!h!e! !L!a!n!d! !S!a!l!e!s! !R!e!g!i!s!t!r!a!t!i!o!n! !A!c!t! !o!f! !1!9!9!9!;! (!2!5!)! !t!h!e!
          !P!r!o!f!e!s!s!i!o!n!a!l! !G!e!o!l!o!g!i!s!t! !L!i!c!e!n!s!i!n!g! !A!c!t!;! !(!2!6!)! !t!h!e! !I!l!l!i!n!o!i!s! !P!u!b!l!i!c! !A!c!c!o!u!n!t!i!n!g! !A!c!t!;! !a!n!d! (!2!7!)! !t!h!e! !S!t!r!u!c!t!u!r!a!l!
           !E!n!g!i!n!e!e!r!i!n!g! !P!r!a!c!t!i!c!e! !A!c!t! !o!f! 1!9!8!9!.! (!S!o!u!r!c!e!:! !P!.!A!.! !9!3 -!2!0!7!,! !e!f!f!.! !1-!1-!0!4!;! !9!3-!9!1!4!,! !e!f!f!.! !1-!1 -!0!5!;! !9!4 -!1!0!6!7!,! !e!f!f!.! !8-!1-0!6!.!)




                                                                                                                                                                                                                                     21
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

           There are several problems with the drafting and thus apparent

operation of the statute.                            Principally, the statute allows regulators at their

sole discretion to take away precisely what at first blush the statute appears

to provide for people with criminal records.                                                 The statute suffers from the

worst possible but classic “Humpty Dumpty” problem.38 The operative

language and key terminology upon which regulators’ decisions to grant or

deny licenses depend, are entirely undefined and highly subjective. The

key words are “direct relationship” (between a past offense and a sought

after license), “u!n!r!e!a!s!o!n!a!b!l!e! !r!i!s!k! !t!o! !p!r!o!p!e!r!t!y,”! !and ”t!h!e! !s!a!f!e!t!y! !o!r! !w!e!l!f!a!r!e! !o!f!

!s!p!e!c!i!f!i!c! !i!n!d!i!v!i!d!u!a!l!s! !o!r! !t!h!e! !g!e!n!e!r!a!l! !p!u!b!l!i!c!.!”39

           The result is that depending upon whose ox is being gored, on the

“wrong” or “right” day, an Illinois license regulator can decide to grant or

deny a license to a person with a criminal record in the complete absence of

any guidance as to how the decision was made. The words of this statute

can mean anything a regulator wants them to mean.


38
       ‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone,’ it means just what I choose
it to mean, neither more nor less.’

      ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

    ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’ (Through the Looking-
Glass – Chapter Six)
39
     730 ILCS 5/5-5-5(h)(1)-(2)


                                                                                                                                       22
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

           As noted, the statute at first blush appears to track the EEOC notion

that a criminal conviction should not automatically bar access to licensing.

In pertinent part, the 730 ILCS 5/5-5-5(h) states:

!!!!!      (!h!)! !N!o! !a!p!p!l!i!c!a!t!i!o!n! !f!o!r! !a!n!y! !l!i!c!e!n!s!e! !s!p!e!c!i!f!i!e!d! !i!n! !s!u!b!s!e!c!t!i!o!n! !(!i!)! !o!f! !t!h!i!s! !S!e!c!t!i!o!n!
           !g!r!a!n!t!e!d! !u!n!d!e!r! !t!h!e! !a!u!t!h!o!r!i!t!y! !o!f! !t!h!i!s! !S!t!a!t!e! !s!h!a!l!l! !b!e! !d!e!n!i!e!d! !b!y! !r!e!a!s!o!n! !o!f! !a!n! !e!l!i!g!i!b!l!e!
            !o!f!f!e!n!d!e!r! !w!h!o! !h!a!s! !o!b!t!a!i!n!e!d! !a! !c!e!r!t!i!f!i!c!a!t!e! !o!f! !r!e!l!i!e!f! !f!r!o!m! !d!i!s!a!b!i!l!i!t!i!e!s!,! !a!s! !d!e!f!i!n!e!d! !i!n!
             !A!r!t!i!c!l!e! !5!.!5! !o!f! !t!h!i!s! !C!h!a!p!t!e!r!,! !h!a!v!i!n!g! !b!e!e!n! !p!r!e!v!i!o!u!s!l!y! !c!o!n!v!i!c!t!e!d! !o!f! !o!n!e! !o!r! !m!o!r!e!
              !c!r!i!m!i!n!a!l! !o!f!f!e!n!s!e!s!,! !o!r! !b!y! !r!e!a!s!o!n! !o!f! !a! !f!i!n!d!i!n!g! !o!f! !l!a!c!k! !o!f! !"!g!o!o!d! !m!o!r!a!l! !c!h!a!r!a!c!t!e!r!"!
               !w!h!e!n! !t!h!e! !f!i!n!d!i!n!g! !i!s! !b!a!s!e!d! !u!p!o!n! !t!h!e! !f!a!c!t! !t!h!a!t! !t!h!e! !a!p!p!l!i!c!a!n!t! !h!a!s! !p!r!e!v!i!o!u!s!l!y! !b!e!e!n!
                !c!o!n!v!i!c!t!e!d! !o!f! !o!n!e! !o!r! !m!o!r!e! !c!r!i!m!i!n!a!l! !o!f!f!e!n!s!e!s!,! !u!n!l!e!s!s!:!

(emphasis supplied)

But here the word “unless” can potentially “undo” what the statute

purports to provide, because the operative determiners, i.e., “direct

relationship” and “unreasonable risk” are undefined: …Unless

                         (!1!)! !t!h!e!r!e! !i!s! !a! !d!i!r!e!c!t! !r!e!l!a!t!i!o!n!s!h!i!p! !b!e!t!w!e!e!n! !o!n!e! !o!r! m!o!r!e! !o!f! !t!h!e! !p!r!e!v!i!o!u!s! !
                         c!r!i!m!i!n!a!l! !o!f!f!e!n!s!e!s! !a!n!d! !t!h!e! !s!p!e!c!i!f!i!c! !l!i!c!e!n!s!e! !s!o!u!g!h!t!;! !o!r!
!!!!!!!!                 !(!2!)! !t!h!e! !i!s!s!u!a!n!c!e! !o!f! !t!h!e! !l!i!c!e!n!s!e! !w!o!u!l!d! !i!n!v!o!l!v!e! !a!n! u!n!r!e!a!s!o!n!a!b!l!e! !r!i!s!k! !t!o! !
                          p!r!o!p!e!r!t!y! !o!r! !t!o! !t!h!e! !s!a!f!e!t!y! !o!r! !w!e!l!f!a!r!e! !o!f! !s!p!e!c!i!f!i!c! !i!n!d!i!v!i!d!u!a!l!s! !o!r! !t!h!e! !g!e!n!e!r!a!l! !
                          p!u!b!l!i!c!.!

!!!!!                    I!n! !m!a!k!i!n!g! !s!u!c!h! !a! !d!e!t!e!r!m!i!n!a!t!i!o!n!,! !t!h!e! !l!i!c!e!n!s!i!n!g! !a!g!e!n!c!y! !s!h!a!l!l! !c!o!n!s!i!d!e!r! !t!h!e! !
                         f!o!l!l!o!w!i!n!g! !f!a!c!t!o!r!s!:!

(emphasis supplied)

           Before considering the ostensible determinative “following factors,”

it must be noted that the statute’s use of undefined operative statutory

terms like “direct relationship” or “unreasonable risk” is a recipe for


                                                                                                                                                                                     23
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

injustice, unfairness and inequity, especially when such terms are applied

in practice not by a judge but by lay bureaucrats in a licensing agency. The

term “reasonable” has long been a legal hot potato, which itself has many

different and self-evident, tautological definitions.40

         The term “unreasonable risk” as used in the statute relates to the risk

of foreseeable harm (as it does classically in the common law of torts).

While the intent is obviously for the state to protect the public, the lack of

definitions leaves the interpretation subject to whim or caprice.                              What’s

more, the factors the statute exhorts the licensor to use to determine

whether to grant a license are only exhortations; they are without any legal

teeth.

         This is a statute where the King always wins if that’s what the King

wants.41       While the statute does say the regulator “shall consider” the

40
   Here both a modern and old definition of reasonable” are cumbersome as they both use the words
“reason” and “reasonable” to define the word itself.      ``A standard for what is fair and appropriate
under usual and ordinary circumstances; that which is according to reason; the way a rational and just
person would have acted.” Webster's New World Law Dictionary Copyright © 2010 by Wiley Publishing,
Inc., Hoboken, New Jersey. See also, REASONABLE. 1. Conformable or agreeable to reason; just;
rational. 2. An award must be reasonable, for if it be of things nugatory in themselves, and offering no
advantage to either of the parties, it cannot be enforced. 3 Bouv. Inst. n. 2096. Vide Award. A Law
Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.


41
  The outcome is pre-determined and the process then shaped to assure it ahead of time, thus perfectly
adhering to this exchange from Chapter 12 of Alice in Wonderland:

     "Let the jury consider their verdict," the King said, for about the twentieth time that day.


                                                                                                           24
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

“following factors,” the “shall consider” language is in legal parlance

“hortatory,” i.e., nothing more than an exhortation.42 There is no

consequence for failing to consider these factors, nor is there any guidance

as to the weight or significance any of these factors have to one another.

And, most importantly, because the key operative terms “direct

relationship,” “unreasonable risk,” and “welfare of specific individuals or

the general public” are undefined, the “following factors” really are

entirely irrelevant absent any statutory definitions for the operative terms.

                The King really can win every time, because the undefined operative

terms of “direct relationship,” “unreasonable risk” and purported concern

for the “welfare of specific individuals or the general public” circle back on




        "No, no!” said the Queen. "Sentence first -- verdict afterward."

        "Stuff and nonsense!" said Alice loudly. "The idea of having the sentence first!"

        "Hold your tongue!" said the Queen, turning purple.

        "I won’t!" said Alice.

        "Off with her head!" the Queen shouted at the top of her voice.
42
     !h!o!r!t!a!t!o!r!y! a!d!j!.! M!a!r!k!e!d! !b!y! !e!x!h!o!r!t!a!t!i!o!n! !o!r! !s!t!r!o!n!g! !u!r!g!i!n!g!:! !a! !h!o!r!t!a!t!o!r!y! !s!p!e!e!c!h!.!
![!L!a!t!e! !L!a!t!i!n! !h!o!r!t!t!r!i!u!s!,! !f!r!o!m! !L!a!t!i!n! !h!o!r!t!t!u!s!,! !e!x!h!o!r!t!e!d!;! !s!e!e! !h!o!r!t!a!t!i!v!e!.!]!
!
!T!h!e! !A!m!e!r!i!c!a!n! !H!e!r!i!t!a!g!e! !D!i!c!t!i!o!n!a!r!y! !o!f! !t!h!e! !E!n!g!l!i!s!h! !L!a!n!g!u!a!g!e!,! !F!o!u!r!t!h! !E!d!i!t!i!o!n! !c!o!p!y!r!i!g!h!t! !©!2!0!0!0! !b!y!
 !H!o!u!g!h!t!o!n! !M!i!f!f!l!i!n! !C!o!m!p!a!n!y!.! !U!p!d!a!t!e!d! !i!n! !2!0!0!9!.! !P!u!b!l!i!s!h!e!d! !b!y! !H!o!u!g!h!t!o!n! !M!i!f!f!l!i!n! !C!o!m!p!a!n!y!.! !A!l!l! !r!i!g!h!t!s!
  !r!e!s!e!r!v!e!d!.! http://www.thefreedictionary.com/hortatory
!



                                                                                                                                                                                             25
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

themselves when the last of the final “following factors” which the

regulator “shall consider” is:

                   (!8!)! !t!h!e! !l!e!g!i!t!i!m!a!t!e! !i!n!t!e!r!e!s!t! !o!f! !t!h!e! !l!i!c!e!n!s!i!n!g! !a!g!e!n!c!y! i!n! !p!r!o!t!e!c!t!i!n!g!
           !       p!r!o!p!e!r!t!y!,! !a!n!d! !t!h!e! !s!a!f!e!t!y! a!n!d! !w!e!l!f!a!r!e! !o!f! !s!p!e!c!i!f!i!c! !i!n!d!i!v!i!d!u!a!l!s! !o!r!
           !       t!h!e! !g!e!n!e!r!a!l! !p!u!b!l!i!c!.!
So, actually, when read together, the key portions of this statute actually

mean that a criminal conviction can automatically preclude a person with a

criminal record from obtaining a license if:

                   (!1!)! !t!h!e!r!e! !i!s! !a! !d!i!r!e!c!t! !r!e!l!a!t!i!o!n!s!h!i!p! !b!e!t!w!e!e!n! !o!n!e! !o!r! m!o!r!e! !o!f! !t!h!e! !p!r!e!v!i!o!u!s! !
                   c!r!i!m!i!n!a!l! !o!f!f!e!n!s!e!s! !a!n!d! !t!h!e! !s!p!e!c!i!f!i!c! !l!i!c!e!n!s!e! !s!o!u!g!h!t!;! !o!r!
!!!!!!!!           !(!2!)! !t!h!e! !i!s!s!u!a!n!c!e! !o!f! !t!h!e! !l!i!c!e!n!s!e! !w!o!u!l!d! !i!n!v!o!l!v!e! !a!n! u!n!r!e!a!s!o!n!a!b!l!e! !r!i!s!k! !t!o! !
                    p!r!o!p!e!r!t!y! !o!r! !t!o! !t!h!e! !s!a!f!e!t!y! !o!r! !w!e!l!f!a!r!e! !o!f! !s!p!e!c!i!f!i!c! !i!n!d!i!v!i!d!u!a!l!s! !o!r! !t!h!e! !g!e!n!e!r!a!l! !
                    p!u!b!l!i!c!.; and

!                  In! !m!a!k!i!n!g! !s!u!c!h! !a! !d!e!t!e!r!m!i!n!a!t!i!o!n!,! !t!h!e! !l!i!c!e!n!s!i!n!g! !a!g!e!n!c!y! !s!h!a!l!l! !c!o!n!s!i!d!e!r! !t!h!e! !
                   f!o!l!l!o!w!i!n!g! !f!a!c!t!o!r!s!:!

                   (8) t!h!e! !l!e!g!i!t!i!m!a!t!e! !i!n!t!e!r!e!s!t! !o!f! !t!h!e! !l!i!c!e!n!s!i!n!g! !a!g!e!n!c!y! i!n! !p!r!o!t!e!c!t!i!n!g! !p!r!o!p!e!r!t!y!,! !
                   a!n!d! !t!h!e! !s!a!f!e!t!y! a!n!d! !w!e!l!f!a!r!e! !o!f! !s!p!e!c!i!f!i!c! !i!n!d!i!v!i!d!u!a!l!s! !o!r! !t!h!e! !g!e!n!e!r!a!l! !p!u!b!l!i!c!.!

(emphasis supplied)

! !Thus,       the forgoing three passages mean the King can always win, and that

the remaining seven (7) “following factors” can always be rendered

illusory and meaningless.

           While these remaining factors are rooted in progressive EEOC-type

foundations, are potentially important and perhaps well-intended, they are



                                                                                                                                                                               26
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING

unfortunately laden with superficial due process, because the 8th factor is

the King’s trump card.                            The seven other following factors are:

!!!!!!!!         !(!1!)! !t!h!e! !p!u!b!l!i!c! !p!o!l!i!c!y! !o!f! !t!h!i!s! !S!t!a!t!e!,! !a!s! !e!x!p!r!e!s!s!e!d! !i!n! A!r!t!i!c!l!e! !5!.!5! !o!f! !t!h!i!s! !
                  C!h!a!p!t!e!r!,! !t!o! !e!n!c!o!u!r!a!g!e! !t!h!e! !l!i!c!e!n!s!u!r!e! !a!n!d! !e!m!p!l!o!y!m!e!n!t! !o!f! !p!e!r!s!o!n!s! !
                  p!r!e!v!i!o!u!s!l!y! !c!o!n!v!i!c!t!e!d! !o!f! !o!n!e! !o!r! !m!o!r!e! !c!r!i!m!i!n!a!l! !o!f!f!e!n!s!e!s!;!

!!!!!!!!!        (!2!)! !t!h!e! !s!p!e!c!i!f!i!c! !d!u!t!i!e!s! !a!n!d! !r!e!s!p!o!n!s!i!b!i!l!i!t!i!e!s! n!e!c!e!s!s!a!r!i!l!y! !r!e!l!a!t!e!d! !t!o! !t!h!e! !l!i!c!e!n!s!e! !
                 b!e!i!n!g! !s!o!u!g!h!t!;!

!!!!!!!!         !(!3!)! !t!h!e! !b!e!a!r!i!n!g!,! !i!f! !a!n!y!,! !t!h!e! !c!r!i!m!i!n!a!l! !o!f!f!e!n!s!e!s! !o!r! o!f!f!e!n!s!e!s! !f!o!r! !w!h!i!c!h! !t!h!e! !
                  p!e!r!s!o!n! !w!a!s! !p!r!e!v!i!o!u!s!l!y! !c!o!n!v!i!c!t!e!d! !w!i!l!l! !h!a!v!e! !o!n! !h!i!s! !o!r! !h!e!r! !f!i!t!n!e!s!s! !o!r! !a!b!i!l!i!t!y! !
                  t!o! !p!e!r!f!o!r!m! !o!n!e! !o!r! !m!o!r!e! !s!u!c!h! !d!u!t!i!e!s! !a!n!d! !r!e!s!p!o!n!s!i!b!i!l!i!t!i!e!s!;!

!!!!!!!!!        (!4!)! !t!h!e! !t!i!m!e! !w!h!i!c!h! !h!a!s! !e!l!a!p!s!e!d! !s!i!n!c!e! !t!h!e! !o!c!c!u!r!r!e!n!c!e! o!f! !t!h!e! !c!r!i!m!i!n!a!l! !o!f!f!e!n!s!e! !
                 o!r! !o!f!f!e!n!s!e!s!;!

            !    (!5!)! !t!h!e! !a!g!e! !o!f! !t!h!e! !p!e!r!s!o!n! !a!t! !t!h!e! !t!i!m!e! !o!f! !o!c!c!u!r!r!e!n!c!e! o!f! !t!h!e! !c!r!i!m!i!n!a!l! !o!f!f!e!n!s!e! !
                 o!r! o!f!f!e!n!s!e!s!;!

!!!!!!!!!        (!6!)! !t!h!e! !s!e!r!i!o!u!s!n!e!s!s! !o!f! !t!h!e! !o!f!f!e!n!s!e! !o!r! !o!f!f!e!n!s!e!s!;!

!!!!!!!!         !(!7!)! !a!n!y! !i!n!f!o!r!m!a!t!i!o!n! !p!r!o!d!u!c!e!d! !b!y! !t!h!e! !p!e!r!s!o!n! !o!r! p!r!o!d!u!c!e!d! !o!n! !h!i!s! !o!r! !h!e!r! !
                  b!e!h!a!l!f! !i!n! !r!e!g!a!r!d! !t!o! !h!i!s! !o!r! !h!e!r! !r!e!h!a!b!i!l!i!t!a!t!i!o!n! a!n!d! !g!o!o!d! !c!o!n!d!u!c!t!,! !
                  i!n!c!l!u!d!i!n!g! !a! !c!e!r!t!i!f!i!c!a!t!e! !o!f! !r!e!l!i!e!f! !f!r!o!m! !d!i!s!a!b!i!l!i!t!i!e!s! !i!s!s!u!e!d! !t!o! !t!h!e! !a!p!p!l!i!c!a!n!t!,! !
                  w!h!i!c!h! !c!e!r!t!i!f!i!c!a!t!e! !s!h!a!l!l! !c!r!e!a!t!e! !a! !p!r!e!s!u!m!p!t!i!o!n! !o!f! !r!e!h!a!b!i!l!i!t!a!t!i!o!n! !i!n! !r!e!g!a!r!d! !t!o! !
                  t!h!e! !o!f!f!e!n!s!e! !o!r! !o!f!f!e!n!s!e!s! !s!p!e!c!i!f!i!e!d! !i!n! !t!h!e! !c!e!r!t!i!f!i!c!a!t!e!;!


            It should be clear that Illinois lacks any meaningful mandated

procedures that would effectively and fairly grant occupational licenses to

applicants with criminal records, that are truly accountable to the public, or

from which there is any appeal or remedy. The current state of affairs is

flawed, because it is not designed for justice. It’s not designed for injustice

either, but that’s no answer to the problem.                                                           Amending the Illinois

                                                                                                                                                                                   27
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

Administrative Code, specifically 20 ILCS 2105-40, is one remedy for

solving many of these fundamental problems.

          The solution is rather simple: definitions for operative language and

key terms are required, as are standard methods for evaluating people with

criminal records, as well as a viable appeal process.



          IV.     The Uniform Standards in State Employment and
                  Occupational Licensing Act and Rehabilitation and Fitness
                  Questionnaire.

          The proposed Illinois Uniform Standards in State Employment and

Occupational Licensing Act43 (Act) as presented here, is accompanied by a

Rehabilitation and Fitness Questionnaire.44 The Act is one solution to the

issues that plague Illinois’s current applicant review process. The use of the

word “plague” is not hyperbole when the issue is a lack of equal justice.

The Act proposes needed definitions, and a standardized process and

methodology by which the State as employer and regulator can and should

review applicants with criminal records. The proposed Act is fair and




43
  Appendix A, draft proposed “Uniform Standards” legislation. Amendment to Civil Administrative
Code of Illinois 20 ILCS 2105/40.
44
     Appendix B. Rehabilitation and Fitness Questionnaire.


                                                                                                  28
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING

unbiased, because it would be uniform, transparent and remediable. And it

would greatly advance equal justice for people with criminal records.

          The primary goal of the Act is to ensure that applications for state

employment and licenses by persons with criminal records are never

denied solely based on the existence of a criminal record.                          As long as

having a criminal record is not expressly a per se bar for employment of a

given license, the Act proposes that state employment or licensure cannot

be denied without standardized evaluation and clear evidence describing

the human resource administrator’s or license regulator’s reasoning any

time he or she does deny state employment or a license to a person with a

criminal record.

          For example, currently, without any articulated standards, people

with criminal records can be deemed to lack “good moral character” and

may be denied licensure.45                Therefore, it is easy for applicants with felony

convictions to be immediately disqualified without receiving a fair and

complete evaluation, because regulators can and do equate a felony

conviction with “bad moral character.”46


45
     Statutory citations for “good moral character” found in Appendix E for each profession.
46
  See Blumstein, A. and Nakamura, K. (2009). Redemption in the presence of widespread criminal
background checks. Criminology. 47:2. See Harris, P. and Keller, K. (2005). Ex-offenders need not apply:
The criminal background check in hiring decisions. Journal of Contemporary Justice.


                                                                                                           29
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

          The Act would ensure that, as law license applicants with felonies do,

every applicant receives a thorough evaluation for state employment or

licensing by raising the standard for denial based on sole and secret

discretion, to a concrete standard removing the bias and judgment of

someone’s “moral character” based solely or fundamentally on a criminal

conviction.



          While the Act proposes increased equality and consideration for

people with criminal records, this does not mean the nature of a felony

conviction is taken less seriously.       The State has high standards to

maintain to ensure that state jobs and licenses are reserved for suitable

applicants who will handle themselves in a responsible and reliable

manner.          While the existence of a criminal record should not

automatically disqualify an applicant, such a record will be taken into

consideration.           By applying the proposed uniform standards and

completing the proposed Rehabilitation and Fitness Questionnaire,47 the

State human resource leaders or Illinois icense regulators can determine if

the applicant’s criminal record bears directly on the tasks and


47
     See infra, Appendix B.



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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING

responsibilities of the license for which the person is applying, and whether

there is any real risk to the public.



      A.     “Direct Relationship,” Defined.

      The proposed Act defines “direct relationship,” so if it is found that

the criminal conviction does “directly relate” to the nature of the sought job

or license, the State of course has the right to deny the job or license.       But

the proposed definition itself is narrow and limited, and protects the

applicant as much as the overall statute protects the public:

      “Direct relationship” means the nature of past criminal conduct for which the
      person was convicted and served a sentence has a demonstrably immediate or
      demonstrably probable bearing on his or her present fitness or ability to
      perform one or more of the duties or responsibilities necessarily related to the
      license, opportunity, or nature of employment in question, and further, such past
      conduct raises a presently identifiable and presently imminent safety risk to
      specific identifiable property, specific identifiable persons or the general
      public. The State must prove the “direct relationship” based on clear and
      convincing, objectively verifiable evidence which would be admissible in a
      court of law.


Thus, the statute incorporates the concept of “unreasonable risk” and

protecting the public in the way it defines “direct relationship.”



      B.     Elimination of the “Unreasonable Risk” Standard.

      Under the Act, the manner in which “direct relationship” is defined

makes it unnecessary to ponder and apply vague notions of what is an

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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING

“unreasonable risk.” The Act’s definition of “direct relationship” expressly

connects a person’s conviction with what the State must show by clear and

convincing, admissible evidence is a “demonstrably immediate or

demonstrably probable bearing” on the applicant’s fitness for the job or

license because of a “presently identifiable and presently imminent safety

risk” to specific identifiable property or person, not just generally to the

public.          If the State cannot meet this burden and standard of proof, then

there is no “direct relationship” between the conviction and the job or

license sought.



                       C.            Elimination of the King’s Trump Card.

          In the present Illinois Loss and Restoration of Rights statute,48 the

King’s Trump card is the provision that allows unfettered denial of a license

based on a criminal conviction, despite that the statute purports not to

allow such a denial.                           The King’s Trump Card presently allows denial

based on

          8) t!h!e! !l!e!g!i!t!i!m!a!t!e! !i!n!t!e!r!e!s!t! !o!f! !t!h!e! !l!i!c!e!n!s!i!n!g! !a!g!e!n!c!y! i!n! !p!r!o!t!e!c!t!i!n!g! !p!r!o!p!e!r!t!y!,! !
          a!n!d! !t!h!e! !s!a!f!e!t!y! a!n!d! !w!e!l!f!a!r!e! !o!f! !s!p!e!c!i!f!i!c! !i!n!d!i!v!i!d!u!a!l!s! !o!r! !t!h!e! !g!e!n!e!r!a!l! !p!u!b!l!i!c!.!

The King’s Trump Card under the present statute gives no guidance as to

48
     730 ILCS 5/5-5-5.



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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING

what the legitimate interest of the licensing agency (of the State) actually is.

Accordingly, under the proposed Act, there is no King’s Trump Card.

There absolutely remains an analogous provision that still allows the State

to deny employment or a license based on the State’s legitimate interest,

but the legitimate interest is circumscribed by the definition and a

demonstration by the State of a now defined “direct relationship” between

the conviction and the job or license.




      (10) The legitimate interest of the State of Illinois or the licensing agency in
      protecting property, and the safety and welfare of specific individuals or the
      general public; provided, however, that the State can demonstrate a “direct
      relationship” as defined herein between a criminal conviction and a particular
      job or license sought by the applicant. (emphasis added)

This new provision functions as the necessary check on unfettered State

power from which the present Loss and Restoration statute suffers.



      D.     Mandatory Documentation and Explanation of Denials, and
             Rights of Review.


      Under the proposed Act, any denial of employment or a license must

be documented and clearly explained by the reviewing human resource

leader who rejects a state job applicant, or by the regulator(s) who deny a



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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING

license.   The documentation requirement provides the transparency and

accountability by the State to the applicant and to the public that is

presently lacking under current law.

             (g)    The State of Illinois as employer, or its licensing agency,
             department or office shall specify and certify in writing each and every
             reason, conclusion, determination, assessment, analysis and indicia of
             evidence which forms the basis for any denial of employment or a license
             to an applicant with a criminal record of any kind, together with the
             names of each and every employee of the State or licensing body who
             participated in the decision to deny a license to such applicant.

Similarly, to implement a standardized system of review for applicants

with criminal records, the Act provides appeal rights:

             (h)    Every applicant for whom the State or licensing body denies an
             application for a license shall have thirty (30) days to review such denial
             by commencing a declaratory judgment action in the circuit court where
             they reside. The standard of review shall be de novo.


      To support transparency, accountability and to give meaning to the

appeal rights and for a court properly to consider an appeal, the proposed

Act includes a standardized “Rehabilitation and Fitness Questionnaire” to

be used by the human resource interviewer, or regulatory agent. This

Questionnaire requires applicants to reveal all convictions within the last

ten years plus discussion of the seriousness, the nature, and the dates of




                                                                                           34
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING

each offense49 in addition to the impact the offense had on the person’s life

- socially and financially.             The Questionnaire requires the applicant to

report the sentence for the conviction and reveals whether the applicant

applied for a Certificate of Relief from Disabilities or a Certificate of Good

Conduct.50             Taking into consideration any psychiatric or vocational

training as well as any voluntary community service, the Questionnaire is a

well-rounded investigative tool for the State to consider every aspect of the

applicant’s life – not just the criminal record, as well as the applicant’s

personal growth and the understanding of the seriousness of the

committed offense.

         The Act and the Rehabilitation and Fitness Questionnaire would be a

much needed public policy enhancements.                           They would advance equal

justice for people with criminal records, and would be an important

leadership step by the State of Illinois toward truly fair and just

employment and licensing practices.51

49
   Carnegie Mellon University researchers recently conducted a study which concluded that the amount
of time post-conviction that an ex-offender remains crime free is directly related to the declining
likelihood of his/her reoffense, eventually reaching the same level of risk as a non-offender. Blumstein,
A. and Nakamura, K. (2009). Redemption in the presence of widespread criminal background checks.
Criminology. 47:2.
50
   As a result of the passing of Senate Bill 1050 to law, effective January 1, 2010, Certificates of Relief of
Disabilities and Certificates of Good Conduct issued by the circuit courts to eligible candidates are proof
of rehabilitation post-sentence for those convicted of a felony charge.
51
     See supra, n.8.


                                                                                                                 35
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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING



        V.         KEY COLLATERAL BENEFITS OF THE UNIFORM STANDARDS ACT.

             There are three key collateral benefits of a truly uniform approach

to assessment of people with criminal records who seek state employment

or occupational licensure: (A) reductions in recidivism through successful

employment, (B) economic advantages, and (C) departmental effectiveness

and efficiency.

        A.      Reduction of Recidivism through Successful Employment.

        The Act demonstrates that it is, among other things, common sense to

have uniforms employment and licensing standards, if not for everyone,

then at least for people with criminal records. Increasing employment in

Illinois is a noble goal and one that benefits every citizen.                     As a result of

increasing employment, the Bill would allow Illinois to reach another of its

goals: the reduction of the recidivism rate52.                 “The recidivism rate…in

Illinois is 51.3 percent…and we must continue to reduce this number,”

states the Illinois Department of Corrections in expressing the necessity




52
   “IDOC continues to stand strong in its commitment to the successful reentry of inmates by…building
partnerships to reduce recidivism and increase the likelihood that inmates become productive citizens”.
IDOC 2008 Annual Report. (2008). Illinois Department of Corrections.
http://www.idoc.state.il.us/subsections/reports/annual_report/FY08%20DOC%20Annual%20Rpt.pdf



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and desire to find solutions to reducing crime in Illinois.53                        Illinois has

made a commitment to reduce crime and recidivism, and it is proven that

successful employment is the most effective method by which to reach this

goal.54     By expanding the pool of eligible applicants for employment

licenses, and by removing the vagueness around the denial of applicants

with criminal records, the State of Illinois has the opportunity to create real

progress and to increase public safety by increasing employment.

        With more licensed people in the workforce, the more recidivism and

overall crime will be reduced.55               By expanding fair employment statutes

and “support[ing] legislation encouraging the employment of offenders

during and beyond their period of correctional supervision”56 more people

will be eligible for licensing and can have meaningful employment rather

than relapse back to crime.

53
   Illinois Department of Corrections. (2009).
http://www.idoc.state.il.us/subsections/dept_overview/dept_overview.shtml.
54
   Anonymous. Policies and Resolutions. (2009). Corrections Today, April 1, 87-92.; Krienert, J. & Fleisher,
M. (2001). Economic rehabilitation: A reassessment of the link between employment and
crime. Corrections Management Quarterly, 5(4), 5.; Krienert, J. & Fleisher, M. (2001). Employment and
crime: An overview and redefinition of critical issues. Corrections Management Quarterly, 5(4).; Solomon,
A., K. Johnson, J. Travis and E. Cincotta McBride. 2004. From prison to work: The employment
dimensions of prisoner reentry. Washington, D.C.: The Urban Institute Press.
http://www.urban.org/UploadedPDF/411097_From_Prison_to_Work.pdf
55
   See Blumstein, A. and Wallman, J. (2006). The recent rise and fall of American violence. The Crime Drop
in America, Ch. 3. New York: Cambridge University Press. See Bushway, S. (1998). The impact of an arrest
on the job stability of young white American men. Journal of Research in Crime and Delinquency. 35.
56
   Anonymous. Policies and Resolutions. (2009). Corrections Today, April 1, 87-92.



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        Employment is generally accepted as the most successful factor in

reducing recidivism for several reasons, beginning at the individual level

and then translated to the societal level.57               These benefits, which begin at

the personal level, include increased self-worth, knowledge of marketable

skills, and increased job experience.               Gaining these attributes, the person

becomes more confident and thus more productive in the work force,

bringing money and labor to the larger society.                    Consequently, it is

essential to empower as many eligible applicants as are available to apply

for state employment or occupational licenses.                    By standardizing the

employment and licensing selection process, more people with criminal

records will be able to prove to themselves, their communities, and to

society that they are capable of being productive “normal” citizens.



        B.      Economic Considerations.

        In addition to reducing recidivism, one timely concern derives from

the struggling national and state economies.                   In the current state of our

country’s financial situation, and Illinois’s disastrous finances, it is

irresponsible not to support the return of able, appropriate people back to

57
  Solomon, A., K. Johnson, J. Travis and E. Cincotta McBride. 2004. From prison to work: The
employment dimensions of prisoner reentry. Washington, D.C.: The Urban Institute Press.



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EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

the workforce once they have completed their criminal sentences.

Recidivism costs taxpayers money to keep cycling offenders through the

criminal justice system.58 “[R]ather than draining community resources,

safety, and morale, prisoners who return to the community with support

systems in place can become productive members of society, thus saving

resources, strengthening family and community ties, and expanding the

labor force and economy.”59




        With the massive budget cuts that each state is presently

experiencing, corrections departments have felt severe belt tightening.60

With money cut from corrections departments, it is essential that the State

of Illinois create truly fair and reasonable, and equal access to employment

and licensing for qualified candidates with criminal records.                          Legislating

new employment and licensing practices that include standard regulations

58
 King, R. & Mauer, M. (2002). State Sentencing and Corrections Policy in an Era of Fiscal Restraint.
Washington, DC. The Sentencing Project.
59
   Solomon, A., K. Johnson, J. Travis and E. Cincotta McBride. 2004. From prison to work: The
employment dimensions of prisoner reentry. Washington, D.C.: The Urban Institute Press.; Pogarsky, G.
(2006). Criminal records, employment, and recidivism. Criminology & Public Policy. 5:3.
60
  Engel, L., J. Larivee, and R. Luedeman. (2009). Reentry and the Economic Crisis: An Examination of
Four States and Their Budget Efforts. Corrections Today, 42-45.; Hynes, C. (2010). After release: The
Challenge of Successful Reentry. Criminal Justice. 24:4.



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ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
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AND LICENSING

for processing applicants with criminal records will make it possible to

identify people who can succeed in legitimate employment,61give back to

the economy, and who will stop costing taxpayers money.                                 It makes little

sense not to build a statutory framework that will help avoid returning
                                                                                                       62
people to a prison system that we already cannot afford to administer.




        C.      Departmental Efficiency and Effectiveness.

        As previously mentioned, there are numerous occupational in Illinois

that require licenses.             Of these professions, over half have discretionary

disqualifications for people with felony convictions and at least ten carry

absolute bars against employment for people with a felony conviction.63


61
   Blumstein, A. and Nakamura, K. (2009). Redemption in the presence of widespread criminal background checks.
Criminology. 47:2. This study provides one proven method on how to identify and manage the risk of people with
prior criminal records.
62
   Travis, J., Crayton, A., & Mukamal, D... (2009). A New Era in Inmate Reentry. Corrections
Today, 71(6), 38-41; Anonymous. (1994). National Recidivism Study of Released Prisoners. Bureau of
Justice Statistics. “Of the 272,111 persons released from prisons in 15 states in 1994, an estimated 67.5%
were rearrested for a felony or serious misdemeanor within 3 years, 46.9% were reconvicted, and 25.4%
resentenced to prison for a new crime.” (1994). National Recidivism Study of Released Prisoners. Bureau of
Justice Statistics.
63
  Appendix C & D (Professions with Absolute Barriers from Licensure and Professions Subject to
Discretionary Disqualification)



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Under the current statute, applicants with criminal records are subject to

licensing denial for professions ranging from barber to interior designer to

real estate agent.   Given these examples, it is clear that the qualifications

for licensing must vary greatly from profession to profession.       Without

considering the applicant’s skill set, and by focusing entirely or

predominantly on the criminal record, many applicants may be denied

access to a profession that may be completely unrelated to his or her past

offense.   This disconnect between the implications of one’s offense and the

skills required for certain professions highlights inefficiencies and the

ineffectiveness which the proposed Act can help eliminate.

      Without a standard method for reviewing applicants, for state jobs,

too) it is possible that certain applicants are granted jobs or licenses while

others with similar criminal records are denied based on many

incongruities, including the biases of the reviewer, lack of attention paid to

the specifics of the criminal record, and inappropriate or vague linking of

the criminal offense to the nature of the job or license.   These

inconsistencies do not allow the State of Illinois to function at its highest

level of efficiency, potentially wasting time and resources to the exclusion

of qualified candidates.

      In addition to these inefficiencies, the lack of a standardized method

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of review also results in decreased effectiveness of the State.    One of the

main tasks of the State as an employer or licensor is to grant employment

or licenses to qualified applicants so that they can work, earn and pay

taxes. However, if the State as employer or regulator is able to disqualify

candidates based on one factor (i.e., the criminal record), how can the

public be confident that the people who are the most qualified and capable

are the people who receive state jobs and licenses?       If every candidate

were subject to disqualification because of one negative aspect of his or her

application, it would be rare that jobs or licenses would be granted at all.

      The Act’s proposed Rehabilitation and Fitness Questionnaire is an

essential tool to ensure that candidates will be examined from every angle

– and evaluated based on the same process.



VI.   CONCLUSION.

      Consistent with “Equal Justice Under Law,” it is clear that adoption

of the Illinois Uniform Standards in State Employment and Occupational

Licensing Act would be an important step.         Augmenting fair employment

laws and licensing standards not only allows for the equal treatment of

people with criminal records, but also supports our nation’s economy and

governmental efficiency.      The discussions presented here describe how

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the standardization of occupational state employment and licensing

evaluation is a reasonable and attainable method by which to promote

justice for one of the most disenfranchised segments of our society.




APPENDIX A:

“ILLINOIS UNIFORM STANDARDS IN STATE EMPLOYMENT AND

OCCUPATIONAL LICENSING ACT”


EXECUTIVE BRANCH

(20 ILCS 2105/) Civil Administrative Code of Illinois.

Sec. 2105-4564. EMPLOYMENT, LICENSURE AND CERTIFICATION OF PERSONS
PREVIOUSLY CONVICTED OF ONE OR MORE CRIMINAL OFFENSES.

64
     This section number is hypothetical.


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(a) Applicability.

    The provisions of this Section shall apply to any person who has previously been
convicted of one or more criminal offenses in this State or in any other jurisdiction, and
who is an applicant for (1) employment by the State of Illinois, or (2) a license,
certificate, or authorities of persons exercising the respective professions, trades, or
occupations authorized under any licensing statute, regulation or rule administered by
any agency or department in the State of Illinois, except where a mandatory forfeiture,
disability or employment bar is imposed by law, and which has not been removed or
forgiven by an executive pardon and expungement order, or relieved by a Certificate of
Rehabilitation, i.e., a Certificate of Relief from Disabilities or Certificate of Good
Conduct issued in Illinois or in another jurisdiction.

(b) Definitions.     As used in this Section:

       “Applicant” means any person who requests to be considered for employment
by the State of Illinois or for any certificate, license, permit, authorization or grant of
permission required by the State of Illinois as a condition for the lawful practice of any
occupation, employment, trade, vocation, business, or profession.

       “Direct relationship” means the nature of past criminal conduct for which the
person was convicted and served a sentence has a demonstrably immediate or
demonstrably probable bearing on his or her present fitness or ability to perform one or
more of the duties or responsibilities necessarily related to the license, opportunity, or
nature of employment in question, and further, which raises a presently identifiable and
presently imminent safety risk to specific identifiable property, specific identifiable
persons or the general public. The State must prove the “direct relationship” based on
clear and convincing, objectively verifiable evidence which would be admissible in a
court of law.

        “License” means any certificate, license, permit or grant of permission required
by the laws of the State of Illinois, its political subdivisions or instrumentalities as a
condition for the lawful practice of any occupation, employment, trade, vocation,
business, or profession. Provided, however, that “license” does not, for purposes of
this Section, include any license or permit to own, possess, carry, or fire any explosive,
pistol, handgun, rifle, shotgun, or other firearm.

       “Disability” means any obstacle to licensing, certification or employment
deriving from a misdemeanor or felony conviction.

(c) Discrimination against persons previously convicted of one or more criminal
offenses prohibited.


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   No application for any employment by the State of Illinois, or license or certificate in
a profession or occupation regulated by any agency or department within any branch of
government within this State, shall be denied or acted upon adversely by reason of the
applicant having been previously convicted of one or more criminal offenses, or by
reason of a finding of lack of “good moral character,” when such finding is based upon
the fact the applicant has previously been convicted of one or more criminal offenses,
unless:

       (1) There is an express statutory or administrative per se disability or bar from
the specific employment, license or certification sought by the applicant because of a
criminal conviction for which the applicant has not yet obtained a Certificate of Relief
from Disabilities or Certificate of Good Conduct; or

       (2) There is a direct relationship between one or more of the previous criminal
offenses and the specific employment, license or certification sought by the individual.

(d) The State of Illinois as employer or the State agency, department or office
responsible for regulation of the license or certification sought by the applicant shall
consider the following factors when analyzing the previous criminal conviction(s) of the
applicant, and when making a determination pursuant to paragraph (c) of this chapter:

       (1) As the primary means of avoiding or reducing recidivism, it is the public
policy of the State of Illinois to promote appropriate employment and licensure of
people with criminal records wherever and whenever possible, and specifically when
such person’s offenses, convictions and criminal records do not pose a demonstrably
immediate or demonstrably probable risk to the public safety or a property.

       (2) The nature and seriousness of the offense or offenses underlying a conviction.

      (3) Whether the offense was an isolated, multiple or repeated incident, and if
multiple or repeated, whether the offenses were the same or different.

        (4) The specific duties and responsibilities necessarily related to the employment
or license sought by the applicant.

       (5) The bearing, if any, the offense for which the applicant was previously
convicted will have on his or her present fitness or ability to perform one or more of the
duties or responsibilities required by the employment or license sought by the
applicant.

       (6) The time which has elapsed since the occurrence of the offense, conviction,
and termination of the applicant’s sentence.


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      (7) The present age of the applicant, and the applicant’s age when he or she
committed the offense, age at the time of the conviction, and age upon termination of
the applicant’s sentence.

       (8) Evidence presented by the applicant of all circumstances concerning the
offense, including mitigating circumstances or social conditions surrounding the
commission of the offense, and whether the applicant was incarcerated or received
probation.

        (9) Any evidence of rehabilitation, including but not limited to: (i) an order of
discharge, release, or other documentation showing the completion of the applicant’s
sentence, probation, parole or supervision, or compliance with conditions of probation,
parole, or supervision; (ii) good conduct in prison or in the community; (iii) counseling
or psychiatric treatment received; (iv) academic or vocational training received; (v)
voluntary community service or involvement; or (vii) the recommendation of persons
who have had the applicant under their supervision or of persons who can otherwise
attest credibly and reliably as to the applicant’s attributes, skills and character and
fitness for employment or licensure.

       (10) The legitimate interest of the State of Illinois or the licensing agency in
protecting property, and the safety and welfare of specific individuals or the general
public; provided, however, that the State can demonstrate a direct relationship between
a criminal conviction and a particular job or license sought by the applicant.

(e) In making a determination pursuant to paragraph (c) of this Section, the State of
Illinois, or its licensing agencies, department or agencies shall consider a Certificate of
Relief from Disabilities or a Certificate of Good Conduct issued to the applicant after
January 1, 2010 as conclusive proof of rehabilitation or good moral character regarding
the offense or offenses specified therein. And applicant who is the holder of such a
Certificate shall be evaluated for employment or licensure as if he or she had no
criminal record.

(f) The State of Illinois as employer, or its licensing agency, department or office, shall,
in writing, offer every applicant with a criminal record the choice of appearing for a
personal interview with at least one State or Department personnel who shall have
decision making authority in connection with the application. Such interview shall be
videotaped and maintained for safekeeping by the State or Department in the same
manner as the State or Department keeps other application-related documentation or
evidence. The Department shall not use an applicant’s decision to forego an interview
in any manner adverse to the applicant. Also, the Department shall inform every
applicant that should he or she choose to appear for an interview, he or she has the


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right to be accompanied by an attorney. The Department shall draw no negative or
prejudicial inferences or make such conclusions if an applicant chooses to be
accompanied to the interview by an attorney.

(g)    The State of Illinois as employer, or its licensing agency, department or office
shall specify and certify in writing each and every reason, conclusion, determination,
assessment, analysis and indicia of evidence which forms the basis for any denial of
employment or a license to an applicant with a criminal record of any kind, together
with the names of each and every employee of the State or licensing body who
participated in the decision to deny a license to such applicant.

(h)    Every applicant for whom the State or licensing body denies an application for a
license shall have thirty (30) days to review such denial by commencing a declaratory
judgment action in the circuit court where they reside. The standard of review shall be
de novo.




Appendix B: REHABILITATION AND FITNESS QUESTIONNAIRE:

FOR USE BY THE STATE OF ILLNOIS AND THE ILLINOIS LICENSING
AGENCIES IN ASSESSING OCCUPATIONAL LICENSE APPLICATIONS BY
PEOPLE WITH CRIMINAL RECORDS



Primary Preliminary Inquiry to Assess Rehabilitation

1.      Prior Convictions.

     A. List all prior felony convictions within the last 10 years.

     B. List all prior felony convictions beyond the last 10 years



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2.     Explain the nature of the offense(s):



3.     Explain the seriousness of the offense (i.e. class/degree of felony):



4.     Time elapsed since the conviction and completion of the sentence:



5.     Age at time of offense:



6.     Explain the social conditions surrounding the commission of the offense (i.e.,

employment status, financial status, education level, familial support):



7.    Explain any other circumstances surrounding the commission of the offense. (i.e.
substance abuse, family violence, criminal gang involvement):



8.     Have you applied for a Certificate of Relief from Disabilities or Certificate of

Good Conduct? If so, was one granted?



9.   If no, list reasons for not applying for a Certificate of Relief or Certificate of Good
Conduct:



Other Evidence of Rehabilitation

10.    Have you received an order of discharge, release order, or other documents

showing completion of sentence, probation, parole, or supervision?




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11.   If not yet discharged from probation, parole or supervision, describe any indicia
of compliance with conditions of probation, parole, or supervision:



12.   Explain any evidence of good conduct during prison sentence or in the

community after prison:



13.   Explain any counseling or psychiatric treatment received following the

conviction:



14.   Explain any academic or vocational training received following the conviction:



15.   Explain any evidence of voluntary community service or involvement following
conviction:



16. List any letters of recommendation or of character references available following the
conviction



17. Explain any evidence of sobriety, if appropriate:



18. Explain any other relevant evidence of rehabilitation and present fitness:




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Appendix C: Professions with Absolute Barriers to Licensure



1.   Child Care Provider--Child Care Act of 1969 (225 ILCS 10/4.2)

“In addition to the other provisions of this Section, no applicant may receive a license
from the Department and no person may be employed by a child care facility licensed
by the Department who has been declared a sexually dangerous person under "An Act
in relation to sexually dangerous persons, and providing for their commitment,
detention and supervision", approved July 6, 1938, as amended, or convicted of
committing or attempting to commit any of the following offenses stipulated under the
Criminal Code of 1961...”

       “In addition to the other provisions of this Section, beginning January 1, 2004, no
new applicant and, on the date of licensure renewal, no current licensee may operate or
receive a license from the Department to operate, no person may be employed by, and
no adult person may reside in a child care facility licensed by the Department who has
been convicted of committing or attempting to commit any of the following offenses or
an offense in any other jurisdiction the elements of which are similar and bear a
substantial relationship to any of the following offenses...”



2.   Commercial Driver’s Licenses-- Illinois Vehicle Code     (625 ILCS 5/6‑514)

“A person shall be disqualified from driving a commercial motor vehicle for a period of
not less than 12 months for the first violation of:

(i) Driving a commercial motor vehicle or, if

the driver is a CDL holder, driving a non CMV while under the influence of alcohol, or
any other drug, or combination of drugs to a degree which renders such person
incapable of safely driving; or

(ii) Knowingly and willfully leaving the scene of an accident while operating a
commercial motor vehicle or, if the driver is a CDL holder, while driving a non CMV; or

(iii) Driving a commercial motor vehicle or, if the driver is a CDL holder, driving a non
CMV while committing any felony; or




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(iv) Driving a commercial motor vehicle while the person's driving privileges or driver's
license or permit is revoked, suspended, or cancelled or the driver is disqualified from
operating a commercial motor vehicle; or

(v) Causing a fatality through the negligent operation of a commercial motor vehicle,
including but not limited to the crimes of motor vehicle manslaughter, homicide by a
motor vehicle, and negligent homicide.”



   “A person is disqualified for life for a second conviction of any of the offenses
specified in paragraph (a), or any combination of those offenses, arising from 2 or more
separate incidents.”



3.   Foster Parent--Child Care Act of 1969 (225 ILCS 10/4.2)

       “In addition to the other provisions of this Section, no applicant may receive a
license from the Department and no person may be employed by a child care facility
licensed by the Department who has been declared a sexually dangerous person under
"An Act in relation to sexually dangerous persons, and providing for their commitment,
detention and supervision", approved July 6, 1938, as amended, or convicted of
committing or attempting to commit any of the following offenses stipulated under the
Criminal Code of 1961…”

            “In addition to the other provisions of this Section, beginning January 1,
2004, no new applicant and, on the date of licensure renewal, no current licensee may
operate or receive a license from the Department to operate, no person may be
employed by, and no adult person may reside in a child care facility licensed by the
Department who has been convicted of committing or attempting to commit any of the
following offenses or an offense in any other jurisdiction the elements of which are
similar and bear a substantial relationship to any of the following offenses…”



4.   Horse Meat Dealer--Illinois Horse Meat Act (225 ILCS 635/3.2)

“The following persons are ineligible for licenses:… A person who has been convicted
of a felony;…a person who has been convicted of a crime or misdemeanor opposed to
decency and morality.”




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5. Optometric Practice-- Illinois Optometric Practice Act of 1987 (225 ILCS 80/14)
(225 ILCS 80/24)


      “A person shall be qualified for initial licensure as an optometrist if that person
has applied in writing in form and substance satisfactory to the Department and who:
               (1) has not been convicted of any of the provisions of Section 24 of this
Act which would be grounds for discipline under this Act…”

       “The Department may refuse to issue or to renew, or may revoke, suspend, place
on probation, reprimand or take other disciplinary action as the Department may deem
proper, including fines not to exceed $10,000 for each violation, with regard to any
license for any one or combination of the following causes: Conviction of or entry of
a plea of guilty to any crime under the laws of any U.S. jurisdiction thereof that is a
felony or that is a misdemeanor of which an essential element is dishonesty, or any
crime that is directly related to the practice of the profession.”



6. Private Detective--Private Detective, Private Alarm, Private Security, Fingerprint
Vendor, Locksmith Act of 2004 (225 ILCS 447/15‑10)

        “A person is qualified for licensure as a private detective if he or she meets all of
the following requirements…:”

“Has not been convicted of any felony in any jurisdiction or at least 10 years have
elapsed since the time of full discharge from a sentence imposed for a felony
conviction…(and) is of good moral character. Good character is a continuing
requirement of licensure. Conviction of crimes other than felonies may be used in
determining moral character, but shall not constitute an absolute bar to licensure.”



7. Professional Geologist-- Professional Geologist Licensing Act (225 ILCS 745/50)
(225 ILCS 745/80)

“The Department may issue a license to practice as a licensed professional geologist to
any applicant who meets the following qualifications…:”

“The applicant is of good ethical character, including compliance with the Code of
Professional Conduct and Ethics under this Act, and has not committed any act or
offense in any jurisdiction that would constitute the basis for disciplining a professional
geologist licensed under this Act…”

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        “The Department may refuse to issue or renew, or may revoke, suspend, place
on probation, reprimand, or take other disciplinary action as the Department may deem
appropriate, including fines not to exceed $5,000 for each violation, with regard to any
license for any one or combination of the following:… Conviction of any crime under
the laws of the United States or any state or territory of the United States that is a felony
or that is a misdemeanor, an essential element of which is dishonesty, or of any crime
that is directly related to the practice of the profession.”



8.   River Boat Gamer--Riverboat Gambling Act         (230 ILCS 10/7)

“A person, firm or corporation is ineligible to receive an owners license if:

(1) the person has been convicted of a felony under the laws of this State, any other
state,

 or the United States;

(2) the person has been convicted of any violation of Article 28 of the Criminal Code of

 1961, or substantially similar laws of any other jurisdiction.”



9.   Safe Deposit Box Operator-- Safety Deposit License Act (240 ILCS 5/19)



“No applicant shall be issued a license who: …has been convicted of a felony.”



10. Speech Language Pathologist and Audiologist-- Illinois Speech-Language
Pathologist and Audiology Practice Act (225 ILCS 110/8) (225 ILCS 110/16)

  “The Department shall require that each applicant for a license to practice speech
language pathology or audiology shall: …not have violated any provisions of Section 16
of this Act.”

       “The Department may refuse to issue or renew, or may revoke, suspend, place
on probation, censure, reprimand or take other disciplinary or non‑disciplinary action
as the Department may deem proper, including fines not to exceed $10,000 for each
violation, with regard to any license for any one or combination of the following


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causes… Conviction of or entry of a plea of guilty or nolo contendere to any crime that
is a felony under the laws of the United States or any state or territory thereof, or that is
a misdemeanor of which an essential element is dishonesty, or that is directly related to
the practice of the profession.”



11.   Business with the State (only contractors or business owners)



12.   Doctor, Medical Practice (225 ILCS 60/22)



13.   School Bus Driver




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Appendix D: Professions subject to Discretionary Disqualifications



1.   Athletic Trainer--Illinois Athletic Trainers Practice Act (225 ILCS 5/16)

“Refusal to issue, suspension, or revocation of license. The Department may refuse to
issue or renew, or may revoke, suspend, place on probation, reprimand, or take other
disciplinary action as the Department may deem proper, including fines not to exceed
$5,000 for each violation, with regard to any licensee for any one or combination of the
following…Conviction of any crime under the laws of the United States or any state or
territory thereof that is (i) a felony, (ii) a misdemeanor, an essential element of which is
dishonesty, or (iii) of any crime that is directly related to the practice of the profession.”



2. Barber, Cosmetology, Esthetics, and Nail Technician--Barber, Cosmetology,
Esthetics, and Nail Technology Act of 1985 (225 ILCS 410/4-7)

“The Department may refuse to issue or renew, and may suspend, revoke, place on
probation, reprimand or take any other disciplinary action as the Department may
deem proper, including civil penalties not to exceed $500 for each violation, with regard
to any license for any one, or any combination, of the following causes…Conviction of
any crime under the laws of the United States or any state or territory thereof that is (i) a
felony, (ii) a misdemeanor, an essential element of which is dishonesty, or (iii) a crime
which is related to the practice of the profession.”



3.   Professional Boxer--Professional Boxing Act (225 ILCS 105/11)

“Qualifications for license…In determining good moral character, the Department may
take into consideration any violation of any of the provisions of Section 16 of this Act
and any felony conviction of the applicant, but such a conviction shall not operate as a
bar to licensure.”



4. Certified Shorthand Reporter--Illinois Certified Shorthand Reporters Act of 1984
(225 ILCS 415/11) (225 ILCS 415/23)

“A person shall be qualified for certification as a certified shorthand reporter if…that
person has applied in writing in form and substance to the Department; and is of good


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moral character, the determination of which shall take into account but not be totally
based upon any felony conviction of the applicant.”

“The Department may refuse to issue or renew, or may revoke, suspend, place on
probation, reprimand or take other disciplinary action as the Department may deem
appropriate, including fines not to exceed $5,000 for each violation, with regard to any
license for any one or combination of the following…: Conviction of any crime under
the laws of the United States or any state or territory thereof which is a felony or which
is a misdemeanor, an essential element of which is dishonesty, or of any crime which is
directly related to the practice of shorthand reporting.”



5.   Interior Designer--Interior Design Title Act (225 ILCS 310/13)

“Refusal, revocation or suspension of registration. The Department may refuse to issue,
renew, or restore or may revoke, suspend, place on probation, reprimand or take other
disciplinary action as the Department may deem proper, including fines not to exceed
$5,000 for each violation, with regard to any registration for any one or combination of
the following causes…Conviction in this or another state, or federal court, of any crime
which is a felony, if the Department determines, after investigation, that such person
has not been sufficiently rehabilitated to warrant the public trust.”

**this act mentions registration, not licensing.



6. Professional Land Surveyor--Illinois Professional Land Surveyor Act of 1989 (225
ILCS 330/27)

“The Department may refuse to issue or renew a license, or may place on probation or
administrative supervision, suspend, or revoke any license, or may reprimand or take
any disciplinary or non‑disciplinary action as the Department may deem proper,
including the imposition of fines not to exceed $10,000 per violation, upon any person,
corporation, partnership, or professional land surveying firm licensed or registered
under this Act for any of the following reasons…conviction of, or entry of a plea of
guilty or contendere to, any crime that is a felony under the laws of the United States or
any state or territory thereof or that is a misdemeanor of which an essential element is
dishonesty, or any crime that is directly related to the practice of the profession.”




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7. Landscape Architect--Illinois Landscape Architecture Act of 1989 (225 ILCS
315/18.1)

“The Department may refuse to issue or to renew, or may revoke, suspend, place on
probation, reprimand, or take other disciplinary or non‑disciplinary action as deemed
appropriate including the impositions of fines not to exceed $10,000 for each violation,
as the Department may deem proper with regard to any license for any one or
combination of the following…Conviction of or plea of guilty or nolo contendere to any
crime under the laws of the United States or any state or territory thereof that is a
felony, or that is a misdemeanor, an essential element of which is dishonesty, or of any
crime that is directly related to the practice of the profession.”



8. Marriage and Family Therapist--Marriage and Family Therapy Licensing Act (225
ILCS 55/85)

“The Department may refuse to issue or renew, or may revoke a license, or may
suspend, place on probation, fine, or take any disciplinary or non‑disciplinary action as
the Department may deem proper, including fines not to exceed $10,000 for each
violation, with regard to any licensee for any one or combination of the following
causes…Conviction of or entry of a plea of guilty or nolo contendere to any crime that is
a felony under the laws of the United States or any state or territory thereof or a
misdemeanor of which an essential element is dishonesty or that is directly related to
the practice of the profession.”



9. Professional Counselor--Professional Counselor and Clinical Professional
Counselor Licensing Act (225 ILCS 107/80)

“The Department may refuse to issue, renew, or may revoke, suspend, place on
probation, reprimand, or take other disciplinary action as the Department deems
appropriate, including the issuance of fines not to exceed $1000 for each violation, with
regard to any license for any one or more of the following…Conviction of any crime
under the laws of the United States or any state or territory thereof that is a felony, or
that is a misdemeanor, an essential element of which is dishonesty, or of any crime
which is directly related to the practice of the profession.”




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10. Real Estate Agent--Real Estate License Act of 2000 (225 ILCS 454/5-25) (225 ILCS
454/20-20)

“When an applicant has had his or her license revoked on a prior occasion or when an
applicant is found to have committed any of the practices enumerated in Section 20‑20
of this Act or when an applicant has been convicted of or enters a plea of guilty or nolo
contendere to forgery, embezzlement, obtaining money under false pretenses, larceny,
extortion, conspiracy to defraud, or any other similar offense or offenses or has been
convicted of a felony involving moral turpitude in any court of competent jurisdiction
in this or any other state, district, or territory of the United States or of a foreign
country, the Board may consider the prior revocation, conduct, or conviction in its
determination of the applicant's moral character and whether to grant the applicant a
license. In its consideration of the prior revocation, conduct, or conviction, the Board
shall take into account the nature of the conduct, any aggravating or extenuating
circumstances, the time elapsed since the revocation, conduct, or conviction, the
rehabilitation or restitution performed by the applicant, and any other factors that the
Board deems relevant. When an applicant has made a false statement of material fact on
his or her application, the false statement may in itself be sufficient grounds to revoke
or refuse to issue a license.”



“The Department may refuse to issue or renew a license, may place on probation,
suspend, or revoke any license, reprimand, or take any other disciplinary or non‑
disciplinary action as the Department may deem proper or impose a fine not to exceed
$25,000 upon any licensee under this Act or against a licensee in handling his or her
own property, whether held by deed, option, or otherwise, for any one or any
combination of the following causes…The conviction of, plea of guilty or plea of nolo
contendre to a felony or misdemeanor, an essential element of which is dishonesty or
fraud or larceny, embezzlement, or obtaining money, property, or credit by false
pretenses or by means of a confidence game, in this State, or any other jurisdiction.



11.   Roofer--Illinois Roofing Industry Licensing Act (225 ILCS 335/9.1)

“The Department may refuse to issue or to renew, or may revoke, suspend, place on
probation, reprimand or take other disciplinary or non‑disciplinary action as the
Department may deem proper, including fines not to exceed $10,000 for each violation,
with regard to any license for any one or combination of the following
causes…conviction or plea of guilty or nolo contendre of any crime under the laws of

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the United States or any state or territory thereof that is (i) a felony or (ii) a
misdemeanor, an essential element of which is dishonesty or that is directly related to
the practice of the profession.”



12. Animal Welfare Inspector --Animal Welfare Act (225 ILCS 605/5) (225 ILCS
605/10)

“Applications by individuals for original licenses…shall include, but need not be
limited to information concerning age, citizenship, present residence, location of the
business licensed under this Act, including the location of all foster homes, description
of facilities to be used, present and previous business connections and experience, bank
and professional references, whether any license of the applicant under this Act or any
federal, state, county or local law, ordinance or regulation, relating to dealing in or
handling dogs or cats, ever was suspended or revoked and whether the applicant ever
has been convicted of a felony. Such felony conviction may be taken into consideration
by the Department in determining qualifications for licensing but shall not operate as a
bar to licensing.”

“Grounds for discipline. The Department may refuse to issue or renew or may suspend
or revoke a license on any one or more of the following grounds…Conviction of any
crime an essential element of which is misstatement, fraud or dishonesty or conviction
of any felony, if the Department determines, after investigation, that such person has
not been sufficiently rehabilitated to warrant the public trust.”



13. Boiler and Pressure Vessel Repairer--Boiler and Pressure Vessel Repairer
Regulation Act (225 ILCS 203/65)

“Licensees are subject to disciplinary sanctions enumerated in this Act if the State Fire
Marshal finds that a licensee is guilty of any of the following…Conviction of any crime
by a licensee that has a substantial relationship to his or her practice or an essential
element of which is misstatement, fraud, dishonesty, or conviction in this or another
state of any crime that is a felony under the laws of Illinois or conviction of a felony in a
federal court, unless such licensee demonstrates that he or she has been sufficiently
rehabilitated to warrant the public trust.

**this act does not mention possible denial of licensing because of a prior felony
conviction.



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14. Farm Labor Contractor--Illinois Farm Labor Contractor Certification Act (225
ILCS 505/6)

“After reasonable notice and a fair hearing pursuant to regulations prescribed by the
Department, the Director may refuse to issue, revoke, suspend, or refuse to renew a
certificate of registration to any farm labor contractor if the Director finds that such
contractor…has been convicted of violating any provision of State or federal law,
including any applicable orders of any State or federal court.”



15.   Employment Agency Counselor – Department of Labor, not IFDPR



16. Professional Engineer--Professional Engineering Practice Act of 1989 (225 ILCS
325/24)

“The Department may, singularly or in combination, refuse to issue, renew, or restore a
license or may revoke, suspend, place on probation, reprimand, or take other
disciplinary or non‑disciplinary action with regard to a person licensed under this Act,
including but not limited to, the imposition of a fine not to exceed $10,000 per violation
upon any person, corporation, partnership, or professional design firm licensed or
registered under this Act, for any one or combination of the following
causes…Conviction of or entry of a plea of guilty or nolo contendere to any crime that is
a felony under the laws of the United States or any state or territory thereof, or that is a
misdemeanor, an essential element of which is dishonesty, or any crime that is directly
related to the practice of engineering.”



17.   Electrologist--Electrologist Licensing Act (225 ILCS 412/30) (225 ILCS 412/75)

“A person shall be qualified for licensure as an electrologist if that person has met all of
the following requirements… [And] has not violated any of the provisions of Section 75
of this Act or the rules promulgated under this Act. The Department shall take into
consideration any felony conviction of the applicant, but a conviction shall not operate
as an absolute bar to licensure.”




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“The Department may refuse to issue or renew and may revoke or suspend a license
under this Act, and may place on probation, censure, reprimand, or take other
disciplinary action with regard to any licensee under this Act, as the Department may
consider proper, including the issuance of fines not to exceed $5,000 for each violation,
for one or any combination of the following causes…Conviction of any felony under the
laws of any .S. jurisdiction, any misdemeanor an essential element of which is
dishonesty, or any crime that is directly related to the practice of the profession.”



18.   Water Well and Pump Installation Contractor--Water Well and Pump Installation

       Contractor's License Act (225 ILCS 345/15)

“The Department may refuse to issue or renew, may suspend or may revoke a license
on any one or more of the following grounds…Conviction of any crime an essential
element of which is misstatement, fraud or dishonesty, conviction in this or another
State of any crime which is a felony under the laws of this State or the conviction in a
federal court of any felony.”



19.   Auctioneer--Auction License Act (225 ILCS 407/10-27) (225 ILCS 407/20‑15)

“The Department may refuse to accept a registration which is incomplete or not
accompanied by the required fee. The Department may impose a civil penalty not to
exceed $10,000 upon any Internet auction listing service that intentionally fails to
register as required by this Section, and may impose such penalty or revoke, suspend,
or place on probation or administrative supervision the registration of any Internet
auction listing service that…is convicted of any crime, an essential element of which is
dishonesty, fraud, larceny, embezzlement, or obtaining money, property, or credit by
false pretenses or by means of a confidence game; or is convicted in this or another state
of a crime that is a felony under the laws of this State; or is convicted of a felony in a
federal court.”



“The Department may refuse to issue or renew a license, may place on probation or
administrative supervision, suspend, or revoke any license or may reprimand or take
other disciplinary or non‑disciplinary action as the Department may deem proper,
including the imposition of fines not to exceed $10,000 for each violation upon anyone
licensed under this Act for any of the following reasons…Conviction of or entry of a


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plea of guilty or nolo contendere to any crime that is a felony under the laws of the
United States or any state or territory thereof, or that is a misdemeanor, an essential
element of which is dishonesty, or any crime that is directly related to the practice of the
profession.”



20.   Architecture Practice--Illinois Architecture Practice Act of 1989 (225 ILCS 305/22)

“The Department may, singularly or in combination, refuse to issue, renew or restore,
or may suspend, revoke, place on probation, or take other disciplinary or non‑
disciplinary action as deemed appropriate, including, but not limited to, the imposition
of fines not to exceed $10,000 for each violation, as the Department may deem proper,
with regard to a license for any one or combination of the following causes…conviction
of or plea of guilty or nolo to any crime that is a felony under the laws of the United
States or any state or territory thereof or that is a misdemeanor, an essential element of
which is dishonesty, or any crime that is directly related to the practice of the profession
of architecture.”




21. Dietetic and Nutrition Services--Dietetic and Nutrition Services Practice Act (225
ILCS

       30/95)

“The Department may refuse to issue or renew, or may revoke, suspend, place on
probation, reprimand, or take other disciplinary action as the Department may deem
proper, including fines not to exceed $1000 for each violation, with regard to any license
or certificate for any one or combination of the following causes…Conviction of any
crime under the laws of the United States or any state or territory thereof that is (i) a
felony; (ii) a misdemeanor, an essential element of which is dishonesty; or (iii) a crime
that is directly related to the practice of the profession.”



22. Environmental Health Practitioner--Environmental Health Practitioner Licensing
Act (225

       ILCS 37/35)



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“The Department may refuse to issue or renew, or may revoke, suspend, place on
probation, reprimand, or take other disciplinary action with regard to any license issued
under this Act as the Department may consider proper, including the imposition of
fines not to exceed $5,000 for each violation, for any one or combination of the following
causes…Conviction of any felony under the laws of any U.S. jurisdiction, any
misdemeanor an essential element of which is dishonesty, or any crime that is directly
related to the practice of the profession.”



23. Funeral Directors and Embalmers--Funeral Directors and Embalmers Licensing
Code (225

       ILCS 41/15‑75)

“Each of the following acts or actions is a violation of this Code for which the
Department may refuse to issue or renew, or may suspend or revoke any license or may
take any disciplinary action as the Department may deem proper including fines not to
exceed $1,000 for each violation….2) Conviction in this State or another state of any
crime that is a felony or misdemeanor under the laws of this State or conviction of a
felony or misdemeanor in a federal court.”



24.   Land Sales



25.   Professional Geologist--Professional Geologist Licensing Act (225 ILCS 745/80)

“The Department may refuse to issue or renew, or may revoke, suspend, place on
probation, reprimand, or take other disciplinary action as the Department may deem
appropriate, including fines not to exceed $5,000 for each violation, with regard to any
license for any one or combination of the following…Conviction of any crime under the
laws of the United States or any state or territory of the United States that is a felony or
that is a misdemeanor, an essential element of which is dishonesty, or of any crime that
is directly related to the practice of the profession.”



26.   Public Accountant--Illinois Public Accounting Act (225 ILCS 450/20.01)




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“The Department may refuse to issue or renew, or may revoke, suspend, or reprimand
any registration or registrant, any license or licensee, place a licensee or registrant on
probation for a period of time subject to any conditions the Department may specify
including requiring the licensee or registrant to attend continuing education courses or
to work under the supervision of another licensee or registrant, impose a fine not to
exceed $5,000 for each violation, restrict the authorized scope of practice, or require a
licensee or registrant to undergo a peer review program, for any one or more of the
following…Conviction of any crime under the laws of the United States or any state or
territory of the United States that is a felony or misdemeanor and has dishonesty as an
essential element, or of any crime that is directly related to the practice of the
profession.”



27.   Structural Engineer--Structural Engineering Practice Act of 1989 (225 ILCS 340)

“The Department may refuse to issue or renew, or may revoke a license, or may
suspend, place on probation, fine, or take any disciplinary or non‑disciplinary action as
the Department may deem proper, including a fine not to exceed $10,000 for each
violation, with regard to any licensee for any one or combination of the following
reasons…Conviction of, or entry of a plea of guilty or nolo contendere to, any crime that
is a felony under the laws of the United States or of any state or territory thereof, or that
is a misdemeanor an essential element of which is dishonesty, or any crime that is
directly related to the practice of the profession.”



28. Hazardous Waste Operator (of a waste facility) -- Environmental Protection Act
(415 ILCS

5/22.5)



“By July 1, 1984, the Board shall adopt standards for the certification of personnel to
operate refuse disposal facilities or sites. Such standards shall provide for, but shall not
be limited to, an evaluation of the prospective operator's prior experience in waste
management operations. The Board may provide for denial of certification if the
prospective operator or any employee or officer of the prospective operator has a
history of…




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(i) repeated violations of federal, State or local laws, regulations, standards, or
ordinances regarding the operation of refuse disposal facilities or sites;

(ii) conviction in this or another State of any crime which is a felony under the laws of
this State or conviction of a felony in a federal court…”



29.   Clinical Psychologist--Clinical Psychologist Licensing Act. (225 ILCS 15/15)

“The Department may refuse to issue, refuse to renew, suspend, or revoke any license,
or may place on probation, censure, reprimand, or take other disciplinary action
deemed appropriate by the Department, including the imposition of fines not to exceed
$10,000 for each violation, with regard to any license issued under the provisions of this
Act for any one or a combination of the following reasons:…Conviction of, or entry of a
plea of guilty or nolo contendere to, any crime that is a felony under the laws of the
United States or any state or territory thereof or that is a misdemeanor of which an
essential element is dishonesty, or any crime that is directly related to the practice of the
profession.”



30. Nursing Home Administrator--Nursing Home Administrators Licensing and
Disciplinary Act (225 ILCS 70/17)

“The Department may impose fines not to exceed $10,000 or may refuse to issue or to
renew, or may revoke, suspend, place on probation, censure, reprimand or take other
disciplinary or non‑disciplinary action with regard to the license of any person, for any
one or combination of the following causes:       Conviction of or entry of a plea of guilty
or nolo contendere to any crime that is a felony under the laws of the United States or
any state or territory thereof or a misdemeanor of which an essential element is
dishonesty or that is directly related to the practice of the profession of nursing home
administration.”



31.   Pharmacist--Pharmacy Practice Act (225 ILCS 85/30)

“The Department may refuse to issue or renew, or may revoke a license or registration,
or may suspend, place on probation, fine, or take any disciplinary or nondisciplinary
action as the Department may deem proper, including fines not to exceed $10,000 for
each violation, with regard to any licensee or registrant for any one or combination of
the following causes: The applicant or licensee has been convicted in state or federal

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court of or entered a plea of guilty, nolo contendere, or the equivalent in a state or
federal court to any crime which is a felony or any misdemeanor related to the practice
of pharmacy or which an essential element is dishonesty.




32. Professional Counselor--Professional Counselor and Clinical Professional
Counselor

       Licensing Act (225 ILCS 107/80)



“The Department may refuse to issue, renew, or may revoke, suspend, place on
probation, reprimand, or take other disciplinary action as the Department deems
appropriate, including the issuance of fines not to exceed $1000 for each violation, with
regard to any license for any one or more of the following: Conviction of any crime
under the laws of the United States or any state or territory thereof that is a felony, or
that is a misdemeanor, an essential element of which is dishonesty, or of any crime
which is directly related to the practice of the profession.”



33.   Respiratory Care Practice-- Respiratory Care Practice Act (225 ILCS 106/95)



“The Department may refuse to issue, renew, or may revoke, suspend, place on
probation, reprimand, or take other disciplinary action as the Department considers
appropriate, including the issuance of fines not to exceed $5,000 for each violation, with
regard to any license for any one or more of the following: Conviction of any crime
under the laws of the United States or any state or territory thereof that is a felony or a
misdemeanor, an essential element of which is dishonesty, or of any crime that is
directly related to the practice of the profession.”



34.   Wholesale Drug Distributor-- (225 ILCS 120/55)




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“The Department may refuse to issue, restore, or renew, or may revoke, suspend, place
on probation, reprimand or take other disciplinary action as the Department may deem
proper for any of the following reasons…Conviction of or entry of a plea of guilty or
nolo contendere by the applicant or licensee, or any officer, director, manager or
shareholder who owns more than 5% of stock, to any crime under the laws of the
United States or any state or territory of the United States that is a felony or a
misdemeanor, of which an essential element is dishonesty, or any crime that is directly
related to the practice of this profession.”




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Appendix E:    Good moral character requirements



Professions subject to discretionary disqualifications

   1. Professional Boxer--Professional Boxing Act (225 ILCS 105/11)

   2. Certified Shorthand Reporter—Illinois Certified Shorthand Reporters Act of 1984
      (225 ILCS 415/11)

   3. Professional Land Surveyor--Illinois Professional Land Surveyor Act of 1989 (225
      ILCS 330/12)

   4. Real Estate Agent--Real Estate License Act of 2000—decription of good moral
      character: (225 ILCS 454/5-25), Leasing Agent: (225 ILCS 454/5-10), Salesperson:
      (225 ILCS 454/5-26), Broker: (225 ILCS 454/5-27), Managing Broker: (225 ILCS
      454/5-28)

   5. Water Well and Pump Installation Contractor--Water Well and Pump Installation
      Contractor's License Act (225 ILCS 345/9)

   6. Architecture Practice--Illinois Architecture Practice Act of 1989 (225 ILCS 305/13)

   7. Funeral Directors and Embalmers--Funeral Directors and Embalmers Licensing
      Code (225 ILCS 41/12-10)

   8. Structural Engineer--Structural Engineering Practice Act of 1989 (225 ILCS
      340/11)

   9. Pharmacist--Pharmacy Practice Act (225 ILCS 85/9.5)



Professions with absolute barriers from licensure

   1. Private Detective--Private Detective, Private Alarm, Private Security, Fingerprint
      Vendor, Locksmith Act of 2004---Private Detective: (225 ILCS 447/15-10), Private
      Detective Agency: (225 ILCS 447/15-10), Private Alarm Contractor (225 ILCS
      447/15-10), Private Alarm Contractor Agency (225 ILCS 447/20-15), Private
      Security Contractor: (225 ILCS 447/25-10), Private Security Contractor Agency:
      (225 ILCS 447/25-15), Locksmith: (225 ILCS 447/30-10), Locksmith Agency: (225
      ILCS 447/30-15), Fingerprint Vendor: (225 ILCS 447/31-10), Fingerprint Vendor
      Agency: (225 ILCS 447/31-15)


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Copyright 2010. All Rights Reserved. Michael Sweig, JD*

ADVANCING “EQUAL JUSTICE UNDER LAW”: UNIFORM STANDARDS WHEN
EVALUATING PEOPLE WITH CRIMINAL RECORDS FOR SUBSTANTIVE EMPLOYMENT
AND LICENSING

   2. Speech Language Pathologist and Audiologist-- Illinois Speech-Language
      Pathologist and Audiology Practice Act (225 ILCS 110/8.5)

   3. Doctor, Medical Practice (225 ILCS 60/9)




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Description: "Equal Justice Under Law"requires that states apply the same standards for evaluating applications by people with criminal records as they do for people who have bad past facts or felonies when they apply for a law license.