As of January1, 2020, marijuana use and possession became legal for both medical and recreational use in Illinois. Those with a medical use license are allowed to grow and own up to 5 plants. Recreational users at least 21 years of age and residing in Illinois are allowed to possess up to 30 grams of cannabis, with lower limits for non-residents. Part of the law legalizing cannabis also created ways for you to clear any possession related charges. This is called expungement.
There are different ways to have your record expunged, depending on what type of record you have. Minor infractions (for example, possession charges of less than 30g) are eligible for automatic expungement, but initial numbers were quite low. As awareness increases, more and more people will apply to have their records cleared.
In Illinois, marijuana legalization came with huge plans for wiping away previous criminal charges involving cannabis. This point of the law was such an important factor that Gov. J.B. Pritzker immediately authorized pardoning more than 11,000 people convicted of minor marijuana infractions.
More Expungement Cases Expected
Although that sounds like a lot, there are more than 700,000 cases in Illinois that could qualify for expungement. The process takes time. All police records and court documents need to be cleared for each person. Once completed, people have a clean slate which improves chances of getting a job, enrolling in higher education and finding a place to live.
The vast amount of expungement requests has really slowed down the process. Plus, the COVID-19 shutdowns haven’t helped, leaving fewer employees to handle this enormous amount of work. This resulted in few cannabis cases being cleared. However, officials promise that more expungements will be granted.
The legalization legislation tasked Illinois State Police with identifying convictions since 2013 that qualified for automatic expungement by Jan. 1, 2021. That totaled about 47,000 cases, according to Toi Hutchinson, the governor’s senior adviser on cannabis.
Kim Foxx, State’s Attorney in Cook County, enlisted the help of a nonprofit high-tech company called Code for America to quickly identify and clear 2,200 cases. But the COVID-19 shutdown of courts delayed the process for months. Another 11,000 cases were expunged in early 2021.
In McHenry County, State’s Attorney Patrick Kenneally was also instrumental in quickly clearing about 1,900 cases. But other counties haven’t been as proactive. Many waited months for state police to identify eligible cases.
For example, the state’s attorney in Lake County heard of only two requests to have records expunged. Both requests were granted.
Automatic Expungement Delays
This delay resulted in many people still paying the price for being caught with small amounts of marijuana. Amounts that can now be easily purchased at pot shops. Licensed cannabis companies are pumping out truck loads of the plant in amounts that would have earned the producer a life sentence.
After so many months of delays in the process, partly due to the pandemic, advocates are working hard to reboot plans to clear convictions.
Only misdemeanors and minor offenses are eligible for automatic expungement, that leaves about 71,000 cases that have to go through the full court process to be cleared. Many people don’t know this. They assume all convictions are expunged automatically, so they haven’t come forward to clear their records.
Getting Help With Expungement
This lack of education prompted a program called New Leaf to seek out people with pot convictions and encourage them to come forward to get their records wiped clean. New Leaf has brought together 20 nonprofit organizations to guide people through the complicated process, which sometimes takes months or years. The program is spearheaded by Illinois Legal Aid Online and includes step-by-step instructions. It is funded by taxpayers through the nonprofit Illinois Equal Justice Foundation.
Police forward minor convictions to the Prisoner Review Board. Qualifying cases are sent to Governor Pritzker, who then pardons any recommended case and clears the way for the record to be expunged.
Individuals convicted of up to 500 grams may still apply personally to have their records sealed, but the arresting officers or the prosecutors have the power to object in court if they feel the circumstances of the crime are too grave to be excused.
To apply for expungement, you have to get a copy of your arrest warrant and the court documents from police and court clerk in the county where the offense occurred. You may also have to submit your fingerprints and pay a fee.
Trying to Simplify the Process
Attorney Beth Johnson, who specializes in clearing criminal records, assisted a committee formed to help the Administrative Office of the Illinois Courts author forms that clearly outline the process for judges and clerks. These forms are designed to make the process quicker and easier for everyone. She says having the law isn’t enough. It has to be clear.
Kim Foxx strongly believes the process is vital to righting the wrongs created by the war on drugs, and should therefore be clear and simple for people, police and court clerks to understand. The crackdown on drugs led to the arrests of more Blacks and Hispanics, as a percentage, than whites, in spite of similar circumstances.
In other counties, receiving the database of records eligible for automatic expungement was slow in coming to prosecutors. Lake County State’s Attorney Eric Rinehart waited months for the records, even though he was ready and eager to put a rush on expunging any cases meeting the criteria, part of which requires that the marijuana charges are not associated with any violent offense.
According to spokesman Lee Filas, Mr. Rinehart sought out private funding and grants to help cover the costs of the part of the process within the scope of his office.
Expunging a record is a complicated process. There are many logistics in the records that have to be ironed out. As an example of the obstacles clerks face, Erin Cartwright Weinstein, court clerk in Lake County said the entire case management system had to be modified to expunge only cannabis cases from all of the other convictions. A task which was not only time-consuming, but also quite difficult.
Advocates were generally not aware of the efforts at the county level to clear those records.
Delays Could be the Result of Reluctant Law Enforcement
State Rep. Jehan Gordon-Booth said that not all members of law enforcement are in favor of cannabis legalization or expunging records. I believe there will be state’s attorneys that lean into this issue and state’s attorneys that are moving along a little bit slower,” she said. “We have to raise our voices and make sure and demand that this life-changing tool is available.”
Kim Foxx, however announced that she would like to broaden the scope to include amounts up to 500 grams, which is the lowest class of felony. These cases are now only eligible for expungement if you apply to the court. Foxx is also in favor of forgiving lesser cocaine and heroin crimes.
Her spokesperson, Sarah Sinovic said the idea is to treat such drug offenders as people needing help for substance abuse, and not to punish them as criminals.
FAQ
Q: How does expungement work?
A: The expungement process varies depending on the particulars of your case. If your record is eligible for expungement under the new law and you meet the income guidelines, you will be referred to one of the legal aid partners to receive free representation in court. If you do not meet the income-level requirement, but are still eligible for an expungement, you will be given specific guidance on a path forward and referrals to legal resources.
Q: What services are available through the network?
A: Depending on eligibility and needs, services can include free legal information, self-help instruction, document review and preparation, legal consultation, and if available, referrals to a network of legal aid and pro bono attorneys for in court representation.
Q: How long will the process take?
A: The process and timing will vary depending on details of your record.
Q: Why should I get my record expunged?
A: A criminal record can make it harder to get hired, harder to get into college, and harder to rent an apartment. A clean record can make life easier.