It seems a bit counterintuitive that in Illinois, a person who is merely arrested, but not formally charged with a crime (i.e., this person is “released without charging”, or “RWOC”) must proactively seek to have his/her arrest expunged or sealed. After all, with regard to felonies, if the arresting officer(s) had presented the State’s Attorney’s Felony Review Unit with ample evidence that the suspect did in fact commit the crime in question, that suspect would have been formally charged with the crime, thus beginning the criminal charging “process”. Instead, the Assistant State’s Attorney involved in the felony review process must have either determined that the evidence against the suspect was insufficient to warrant felony charges, or alternatively, that no felony offense was at issue. Moreover, in a situation where the State’s Attorney’s Felony Review Unit has rejected felony charges against a suspect, the police still have the authority to charge that suspect with a misdemeanor is they so choose. Again, if there is not sufficient evidence to charge that suspect with even a misdemeanor offense, he/she is released from police custody most likely thinking that is the end of the ordeal.
It therefore surprises many of my clients that this mere arrest and subsequent release without charging remains on his or her criminal record. I’ve seen numerous instances where an individual has honestly forgotten all about the arrest and RWOC, as many years may have passed without that person having any interaction with the law. In terms of obtaining employment, there are some protections afforded by our state laws with regard to what an employer or employment agency may consider regarding to a person who has been arrested but not charged, but ultimately, it is in that person’s best interest to petition the court for either expungement or sealing of the arrest record at issue. The basic rules surrounding expungement and sealing eligibility that I’ve discussed in previous blog entries still apply in this type of situation. (See also 20 ILCS 2630 et seq.) So, practically speaking, a person with just one or more arrests that result in dispositions of “release without charging” will be eligible for expungement relief, but a person who has an arrest and RWOC, plus any conviction for an unrelated crime will only be eligible for sealing.
Under Article 2, Section 103 of the Illinois Human Rights Act, it is a civil rights violation for any employer, employment agency or labor organization to either inquire into or use the “mere fact of an arrest” as a basis to refuse to hire an individual. See 775 ILCS 5/2-103(a). However, this “prohibition” against an employer or other agency using the “fact of an arrest” does not disallow such an entity from obtaining or using “other information” indicating that a person actually engaged in the conduct for which he or she was arrested. See 775 ILCS 5/2-103(b). So, essentially, even though it is considered discriminatory for an employer to rely on only an arrest record as a basis on which to deny an individual a job, if that same employer is able to obtain any independent information which tends to support the arrest at issue, it may rightfully deny an individual employment as a result. Practically speaking. what many times ends up happening is that the employer runs a criminal background check on a prospective employee, sees that the person has been arrested, but not charged for one or more offenses, then continues searching for self-sustaining information about such arrest(s). In this era where none of us truly enjoys total privacy (think about what you can find out about a person via the Internet), an employer is likely able to obtain the information it needs to legally deny an individual employment not “technically” because of that person’s previous criminal arrest(s), but in reality, because of that person’s criminal arrest(s).
In order to give yourself the best chance possible at obtaining employment in this tough economic time, it is definitely in your best interest to get everything you can either expunged or sealed from your criminal record, even if it’s just an arrest record. Contact an experienced criminal records attorney to assist and guide you in this intricate and sometimes complicated process.