CBA Sept.-Oct. 2020

PRO BONOWEEK 2020 – EXTRAORDINARY TIMES CALL FOR EXTRAORDINARY COMMITMENT

the Illinois Department of Agriculture.

Cannabis Control Act concerning not more than 30 grams of any substance containing cannabis , provided the violation did not include a penalty enhancement under Sec- tion 7 of the Cannabis Control Act and is not associated with an arrest, conviction or other disposition for a violent crime as defined in subsection (c) of Section 3 of the Rights of Crime Victims andWitnesses Act.” 20 ILCS 2630/5.2(a)(1)(G). Category 1: Automatic Expungement of Law Enforcement Records Over the next five years, the Illinois State Police and law enforcement agencies will review their records to identify all “minor cannabis offenses’’ that did not result in conviction. 20 ILCS 2630/5.2(i)(1) . This includes arrests where charges were not filed; court cases that resulted in a dismissal or acquittal; and sentences of supervision or qualified probation that were satisfactorily terminated. The agencies will “automatically expunge” and destroy these records per the statutorily enacted timetable: • Records created between 1/1/13 and 6/25/19 shall be expunged before 1/1/21; • Records created between 1/1/00 and 12/31/12 shall be expungedbefore 1/1/23; • All records created prior to 1/1/00 shall be expunged by 1/1/25. This category of expungement relief does not expunge the non-conviction court records; it only addresses the police records. Individuals will still be required to affirma- tively file a petition to expunge through the traditional court process to request those records be removed from public view. Category 2: Automatic Expunge- ment of Minor Cannabis Conviction Records This category of automatic expungement requires the coordination of multiple state agencies to address “minor cannabis offenses” resulting in conviction. 20 ILCS 2630/5.2(i)(2) . The only difference in this definition is that the cannabis conviction cannot be associated (in the same case) with

a conviction for a violent offense, unlike in Category One, when it could be a mere arrest. The Illinois State Police were given 180 days from enactment to identify all records in the statewide repository that met this definition and provide a list to the Prisoner Review Board. The Prisoner Review Board in turn is required to pro- vide notice to the State’s Attorney in the county of conviction, as there is a sixty-day window to object to the eligibility of the Class 4 felony conviction. The PRB then makes a confidential, non-binding recom- mendation to the Governor whether or not a pardon authorizing expungement should be granted. If the Governor grants the pardon, the Attorney General’s Office is charged with filing a petition to expunge in the appro- priate jurisdiction to have a court order issued granting the expungement. The challenge with this category of relief is the speed in which this automatic relief can happen. While Governor Pritzker granted 11,017 pardons on December 31, 2019, it is reported by state officials that over 116,000 potentially eligible records were provided by the Illinois State Police to the Prisoner Review Board. However, noth- ing prohibits an individual who may fall in this automatic category from pursuing relief sooner through the process outlined in Category Three. Category 3: Process to Vacate and Expunge Cannabis Convictions This final category of newly expungable cannabis convictions requires a petition to be filed in the county of conviction. 20 ILCS 2630/5.2(i)(3) . Any misdemeanor or qualifying Class 4 felony convictions under Sections 4 (possession) or Section 5 (manu- facture/delivery) of the Cannabis Control Act are eligible for relief. These records are not subject to the 30-gram limitation or other exclusionary factors. A person can file a petition to vacate and expunge in the circuit court of conviction. The legislation also authorizes a state’s attorney’s office to file these motions on behalf of individuals, and specifically states civil legal aid agencies CBA RECORD 23

Expungement Relief The legislation also directly addressed the harm caused by the criminalization of cannabis by creating avenues for expunge- ment relief of past cannabis arrests and convictions. And there are thousands of records. The Illinois Sentence Policy & Advisory Council identified 691,000 cases that could be eligible for this newly created expungement relief. Expungement is a legal remedy that removes barriers to employment, housing, education, and other life opportunities that are taken away when a background check reveals past arrests and convictions. The expungement provisions of the Criminal Identification Act do not allow a person to expunge a conviction unless the convic- tion was reversed, vacated, or a person was granted a gubernatorial pardon allowing for expungement. While sealing is available for most conviction records, the CRTA amended the Act to provide new avenues for expungement (and in certain cases, vacating) of eligible cannabis conviction records. The CRTA created three different categories of expungement relief. Two of the avenues provide for an “automatic” expungement, and the third requires affir- mative action on behalf of the individual with the cannabis record. While two of the avenues are considered “automatic,” there is no magic button that expunges records. The automatic process still requires action by multiple state and law enforce- ment agencies. The process is more aptly described as a method of expungement by which the person gaining relief is not required to initiate action or otherwise take affirmative steps. Expungement eligibility is determined based on the type and disposition of the cannabis case. The definition of a “minor cannabis offense” is important to under- standing the avenues for relief under the automatic process: A “minor cannabis offense” is “a violation of Section 4 [pos- session] or 5 [manufacture/delivery] of the