Past marijuana convictions can be erased, but it could take years
There was a time when getting caught with three handfuls of marijuana could cost a person a job, an apartment, an education and a professional license.
That's no longer the case with possession of up to 30 grams of marijuana now legal in Illinois. But what about those who have convictions for drug crimes that, as of Wednesday, no longer exist?
Those records now can be expunged, or erased in the eyes of the law. But it isn't always automatic and it isn't always easy. Up to 800,000 cases are eligible for review, which could take years.
On Tuesday, Gov. J.B. Pritzker issued 11,017 pardons for people with marijuana offenses. In December, Cook County State's Attorney Kim Foxx filed motions to clear 1,000 low-level marijuana convictions under the new law, which allows for the expungement of minor marijuana arrests and for some misdemeanor and Class 4 felony convictions.
Some advocates say the expungement provision is overdue.
“When you apply for a job, housing or certain licensing, a criminal record can be a barrier,” said Tom Verdun, director of legal services for the Moran Center for Youth Advocacy, an Evanston legal aid organization that helps people clear their criminal records.
Expungement removes that barrier by erasing arrests and convictions. Unlike sealing of criminal records, which hides arrests and convictions from the public but allows certain groups to see the records under certain circumstances, expungement permanently removes them.
Misdemeanor arrest records (for the possession of 30 grams or less of marijuana or the sale of up to 10 grams) that did not result in conviction might be eligible for internal, automatic expungement by the Illinois State Police.
However, the process — which is limited to marijuana arrests not accompanied by violent crimes — could take up to five years. Arrest records for offenses that occurred between Jan. 1, 2013, and Jan. 1, 2020, will be expunged by Jan. 1, 2021. Records for offenses that occurred between Jan. 1, 2000, and Jan. 1, 2013, will be expunged by Jan. 1, 2023. And records for offenses that occurred before Jan. 1, 2000, will be expunged by Jan. 1, 2025.
The Illinois State Police Bureau of Identification has identified about 116,000 convictions eligible for expungement — also involving no more than 30 grams and no violent offenses — and has forwarded them to the Prisoner Review Board, which will make expungement recommendations to the governor. He decides whether to grant a pardon and authorize expungement.
If he does, the attorney general petitions the circuit courts to expunge the records.
Help is available
But when it comes to misdemeanor and felony convictions for possessing 30 to 500 grams of marijuana or selling 10 to 30 grams, the process is more complicated.
That's where Verdun and other legal aid attorneys can help. Volunteers, most of them retired criminal defense attorneys, provide free assistance from 10 a.m. to noon Tuesday and Thursday at the Moran Center help desk at Cook County's second municipal district courthouse in Skokie.
“We are open to anyone who walks into the courthouse, no residency requirements,” Verdun said. “It's important that if you are eligible to expunge or seal your records, you should do that.”
There are conditions, however. A marijuana conviction can't be expunged if a person was convicted of another, non-marijuana offense on the same case, or if the person has not completed the conditions of the marijuana conviction. Those conditions might include incarceration, probation and parole.
State's attorneys can file motions to vacate misdemeanor and Class 4 felony convictions for possession of up to 500 grams and for the manufacture and intent to deliver up to 30 grams, which is what Foxx did in the 1,000 cases.
In Cook County, prosecutors are partnering with the firm Code for America to automatically clear eligible marijuana convictions. After the record is removed, the circuit court clerk will notify individuals of the expunged convictions by email or letter to their last known address.
DuPage County
Like his Cook County counterpart, DuPage County State's Attorney Robert Berlin will review the state police's list of arrests and convictions eligible for expungement and determine if he objects to any of the requests. However, he says his office will not proactively seek expungements because he doesn't have the staff or resources.
Unlike Foxx in Cook County, Berlin will not hire a data firm to review eligible records. And he does not plan to hire people to handle the anticipated increased expungement requests, which he anticipates will be in the thousands.
“I believe we will be able to handle it,” Berlin said.
Kane County
The Kane County state's attorney's office will handle expungements case by case.
“We don't have any plans currently to create a new policy/procedure to address them,” Clint Hull, chief judge of the 16th Judicial Circuit, wrote in an email. “We have an expungement process that is currently in place that, until proven otherwise, should be able to accommodate future expungement requests. If we learn otherwise we will be adapt as needed.”
McHenry County
McHenry County State's Attorney Patrick D. Kenneally said his office will file a motion to expunge all marijuana-related convictions for possession of 30 grams or less.
“That should be a considerable amount of cases. We're going back decades,” said Kenneally, who estimates eligible expungement cases will number in the hundreds and possibly the thousands.
As for the remaining cases — misdemeanor manufacture and delivery cases and class 4 felonies — Kenneally says his office will await state police findings before responding, noting prosecutors have a right to object to the expungement of marijuana cases involving felonies.
“We want to take a more careful look at those. But for the most part, the vast majority of those will be expunged as well,” he said.
Lake County
Lake County prosecutors will review individual cases and flag arrests associated with violence or involving the sale of marijuana to minors, said State's Attorney Michael Nerheim. He says his office is coordinating with Lake County Clerk of the Circuit Court Erin Cartwright's office to determine the most efficient way to go about expungements.
“The process is complicated due to the constraints of the current Lake County case management system,” Nerheim said. The system is outdated, he said, and it's unlikely updates will be completed in time to handle anticipated requests.
“We also do not have the monetary resources to hire new staff to aid in the implementation of this, so we will need to divert staff from existing projects,” he said.
“Whenever there is a matter this large, we expect snags,” Cartwright said.
She said additional clerks are being trained to handle expungement requests and her office is working with prosecutors and judges to manage the heavy court calls that will likely result.
“This is not an easy task, but we are as ready as we can be,” said Cartwright, who says the Association of Illinois Courts “estimates approximately 800,000 cases will be reviewed.”
Addressing the past
There's no time limit on expungement appeals. People can apply to expunge criminal records from decades ago or as recently as last year, so long as they meet the conditions, according to a spokesman from Illinois Legal Aid Online.
They say that while the assistance of a lawyer isn't necessary for such cases, it can be helpful to consult someone with expertise in this area.
Former legal aid attorney Beth Johnson supports state officials' expungement efforts.
Policy changes, like the one legalizing recreational marijuana, require addressing the past, she said.
“We should never forget folks who've gone through the system,” said Johnson, a partner in Chicago's Rights and Restoration Law Group.
Expungement “is not only fixing the future, it's repairing the harm that was done to others,” she said.
• The Associated Press and staff writers Susan Sarkauskas and Harry Hitzeman contributed to this report.