The Effect of Illinois’ Decriminalization of Cannabis on Criminal Records
By Hannah V. Garst, Esq. and Bryant Chavez, Esq.
For the millions of people who have one, a criminal record can have a profound effect on eligibility for employment, volunteer opportunities, licensing, housing options, and some public benefits. Criminal records are created in several different ways. The Illinois State’s Attorney can file a complaint or obtain an indictment through a grand jury, resulting in the issuance of a warrant for one’s arrest. One can receive a ticket, show up to court, and be charged with an offense. One can also be arrested. Each of the foregoing scenarios results in the creation of a criminal record. Regardless of its ultimate adjudication, once a criminal record is created, one must proactively petition for its removal via the applicable statutory processes for sealing or expungement.
For those who have records related to cannabis (also referred to as marijuana), long-awaited relief arrived on June 25, 2019 when Gov. J.B. Pritzker signed into law H.B. 1438, the Cannabis Regulation and Tax Act (“Act”), which will end cannabis prohibition and replace it with a system to tax and regulate it. Beginning on January 1, 2020, adults 21 and older may possess and/or purchase cannabis products in licensed stores. Possession is limited to 30 grams of raw cannabis;1 cannabis-infused product or products containing no more than 500 mg of THC;2 and five grams of cannabis product in concentrated form.3
In addition to legalizing possession and use for adults, the Act allows for the expungement of criminal records pertaining to certain cannabis-related offenses.
First, arrests. For cases involving arrests not resulting in criminal charges, starting on January 1, 2020, expungements will be automatic for arrests involving up to 30 grams of cannabis as long as at least one calendar year has passed since the date of arrest and no subsequent criminal charges were filed related to the arrest.4 Cases involving arrests that resulted in criminal charges but did not result in a conviction are currently eligible to be expunged by filing a petition in the court where one was charged.5 They also may be automatically expunged according to the timeline below.
Second, certain cannabis-related convictions will be eligible for expungement. Starting on January 1, 2020, convictions involving up to 30 grams of cannabis will be eligible for automatic expungement.6While individuals with qualifying offenses and records are not required to take any action to have their records automatically expunged, exceptions to the automatic expungement mandate exist. It does not apply to cannabis-related arrests and convictions associated with arrests and/or convictions for violent sexual offenses; sexual offenses against a minor; stalking offenses; any offense resulting in a court order to register as a sex offender; animal abuse offenses; or violations of local ordinances.7
The Illinois State Police is charged with identifying all eligible conviction records and forwarding them to the Prisoner Review Board. If the Prisoner Review Board clears a record, it will go to the governor for pardon. Once the governor grants a pardon, the state attorney general will recommend the record’s expungement. However, hiring an attorney to file a petition to expunge eligible cannabis-related convictions to ensure the timely removal and destruction of the record of conviction is advised.
The schedule (and deadlines) for law enforcement agencies to automatically expunge qualifying offenses and records is based upon the initial date of arrest, as follows: Records created between January 1, 2013 and January 1, 2020, shall be automatically expunged prior to January 1, 2021; records created between January 1, 2000, and December 31, 2012, shall be automatically expunged prior to January 1, 2023; and records created before to January 1, 2000 shall be automatically expunged prior to January 1, 2025.8
Those with convictions for possession of amounts between 30 and 500 grams of cannabis may separately petition the court for an expungement. The Act expands expungement relief to include amounts up to 500 grams of marijuana.9 Unlike records eligible for automatic expungement, these petitions are not guaranteed to result in expungement (or a vacated conviction), but do create the opportunity for such a result, which did not exist prior to the Act. When considering such a motion to vacate and expunge, a court shall consider the following: the reasons to retain the records provided by law enforcement, the petitioner’s age, the petitioner’s age at the time of offense, the time since the conviction, and the specific adverse consequences if denied.10 An individual may file such a petition after the completion of any sentence or condition imposed by the conviction.11
For those who have drug convictions involving cannabis, the Act’s sweeping changes bring life-altering relief. Whether it is pursuing a new job or better opportunities, there is no reason to wait. Expungement is available beginning on January 1, 2020 and attorneys should be ready to file petitions immediately.
1 . IL H.B. 1438 § 10-10(a) (2019).
4. 20 ILCS 2630/5.2(i)(1) (eff. 1/1/20).
5. 20 ILCS 2630/5/2(b).
6. 20 ILCS 2630/5.2(i)(2) (eff. 1/1/20).
7. 20 ILCS 2630/5.2(i)(2)(a) (eff. 1/1/20).
8. 20 ILCS 2650/5/2(i)(1)(C) (eff. 1/1/20).
9. 20 ILCS 2630/5.2(i)(2), (3) (eff. 1/1/20).
10. 20 ILCS 2630/5.2(i)(3) (eff. 1/1/20).