In Illinois; Clemency Available for 0 to 30 Grams, Expungement Available for Convictions of 30 to 500 Grams

By Stephen M. Komie ©

On June 25, 2019, Governor JB Pritzker signed into law a revision of the Illinois Cannabis Control Act, 720 ILCS 550.1 et seq. Commencing January 1, 2020, Illinois residents will be authorized to possess up to 30 grams of cannabis for usage as they desire. Non-residents do not have the same exception from the criminal penalties. Non-residents are limited to 15 grams. Between now and January 1, 2020 the law remains in effect prohibiting possession of marijuana except for persons who have Illinois Medical Marijuana Cards.

Illinois has an estimated 770,000 marijuana related criminal records which are now eligible for clemency by Governor Pritzker. Prior to January 1, 2020 expungements remain in effect for persons who received court supervision, or were not convicted, or had their case dismissed after a motion to suppress, or the prosecution declined to proceed. Those expungements remain available in the normal manner.

Executive clemency is not an expungement. Executive clemency is the power of the governor to exonerate or forgive persons who have committed crimes. Persons who have had arrests for 30 grams or less will have the Illinois State Police and local police agencies examine their arrests over a 6-month period after January 1, 2020. The police agencies will have 6 months to find those records. For all who were convicted of 30 grams or less the state and local police are required to send those records within 6 months to the Governor's Prisoner Review Board. The law charges the Prisoner Review Board with the obligation to review each case for eligibility for clemency. The criteria to be employed is 1) is it the same person as reported arrested; 2) is the record a correct record; and 3) there must be an absence of any violent offense involved with the arrest. Once cleared by the Prisoner Review Board, the Prisoner Review Board will make a recommendation to Governor Pritzker.

It is expected that Governor Pritzker is most likely to issue hundreds of thousands of pardons during the remainder of his four-year term in office. The Governor has announced that it will be a very streamlined process. This, of course, remains to be seen. After a pardon is issued, Attorney General of Illinois Kwame Raoul acting on behalf of the Prisoner Review Board will appear before a circuit judge to seek expungement for the cases where clemency is granted by the Governor. It is expected that hundreds of thousands of persons will be relieved of their criminal record which prevented them from receiving government benefits such as housing and welfare.

For people who were arrested with 30 to 500 grams the expungement process remains in effect. Except for the first-time offenders, those persons may request the court to vacate their conviction and expunge the records.

This reform is unprecedented in Illinois law and will be a first. The arresting police agency can object to the request to vacate the conviction and expunge the record. The law directs the court to consider the defendant's age at the time of the offense, the current age of the defendant, and any adverse consequences which would accompany denial of the expungement.