This week, The Chicago Reporter exposed how the Illinois State Police (ISP) has refused to carry out thousands of court-ordered expungements and sealings of individual criminal records. They found that, contrary to judges’ orders, at least 2,700 unwitting Illinois citizens still have a criminal offenses on their records.

In a press release yesterday, Attorney General Lisa Madigan responded with appropriate outrage, describing ISP’s conduct as “an unbelievable defiance of the law.” Indeed, as Roosevelt University legal studies professor Michael Sweig pointed out to the Reporter, the underlying statute was only as good as the people enforcing it:

“You can have all the legislation in the world, but if you’re going to have an agency like the police that’s going to second guess the court, I don’t know how you’re going to stop it and I don’t know how you’re going to guard against it,” he said. “If you can’t get the king to follow the court, that’s a problem.”

So how did ISP manage to ignore so many court orders? The Reporter explains:

The agency took its cue from this passage in the Criminal Identification Act, added in 1991: “Any court order contrary to the provisions of this Section is void.” Police believed this so-called void-order provision mandated their defiance. “A void order may be attacked at any time and in any court—either directly or collaterally,” said an October 2008 court brief.

Disputes between the police and judges increased after the 2005 amendment, in part, because the amendment is dense and complicated. It contains clauses that say, for instance, convictions are sealable when “at least 4 years have elapsed since the last such conviction or term of any sentence, probation, parole, or supervision, if any, whichever is last in time.” Most judges interpreted this waiting period to mean that living crime-free for four years entitles ex-offenders to seal any eligible offense. Police said it meant eligible offenses could only be sealed if they are at least four years apart.

State Rep. Constance Howard (D-Chicago) and Sen. Kimberly Lightford (D-Westchester) have introduced HB 3961, which seeks to clarify the expungement process laid out in the Criminal Identification Act. The bill sets a 60-day timetable for filing a response to relevant court-orders. It would also heighten oversight of the ISP decisions by requiring the agency to generate additional reports for the Governor, General Assembly, Attorney General’s office, and the Illinois State Appellate Defender’s office to review.

Meanwhile, Judge Paul Biebel, head of the Criminal Division of the Cook County Circuit Court -- whose orders were ignored by ISP roughly 13 percent of the time in 2007 alone -- has taken on the job of sorting this mess out. Madigan is also working with a team of pro-bono attorneys -- from the Legal Assistance Foundation of Metropolitan Chicago, the Chicago Legal Clinic-Austin Circle Law Center, and the Cabrini Green Legal Aid Clinic -- to make sure the situation is rectified.

This team will try to obtain an audit detailing exactly how many court orders ISP has skirted. Advocates are also hoping for a court-directive for compliance that would mandate the review thousands of cases -- some dating back to 1991 -- and then figure out an outreach plan to help identify those in limbo between the court’s orders and ISP's actions.