Convicted of an IL Cannabis Offense? You Might Be Able to Expunge It
When Illinois legalized small amounts of cannabis last year it, in effect, invalidated a handful of misdemeanor and felony cannabis convictions. That said, individuals still need to ask a court to vacate and expunge their cases.
Even though this benefit contained in the cannabis law received much publicity in the months leading up to its effective date (Jan. 1, 2020), to date few people have had their convictions vacated and expunged -- setting aside those low-level misdemeanor convictions that have been pardoned by Governor Pritzker.
Factors Contributing to Few Cannabis Expungements
Several factors contribute to the small number of expungements. For one thing, Illinois courts were forced to close their doors in mid-March due to COVID-19 and did not reopen until July. During this time, only legal matters requiring immediate court attention could be heard. Consequently, expungement requests weren’t being filed.
Even after the courts reopened, widespread confusion as to what forms had to be filed to vacate/expunge these convictions caused further processing delays.
Statewide forms (to vacate/expunge cannabis convictions) – scheduled for release this year by the Administrative Office of the Illinois Courts – will hopefully establish uniform filing procedures for these requests. With no preprinted forms available, attorneys have had to draft their own, leading to mixed results.
Only one petition I filed last year was granted (in Lake County). All the other petitions I filed (in Cook County) stalled. It seems that Dorothy Brown’s office received no guidance from above on how to handle these new requests.
Cook, McHenry County Prosecutors Advance Expungements
A recent article in the Chicago Tribune highlighted how few counties have responded to the Illinois legislature’s clarion call to help Illinois residents eliminate their cannabis convictions, as well as the accompanying adverse consequences of having a criminal record.
In 2019, Cook County State’s Attorney Kim Foxx was the only county prosecutor to announce that her office would assume responsibility for filing the paperwork for vacating/expunging these convictions. The initial batch of cases she sought to vacate/expunge consisted of low-level misdemeanor cannabis convictions (up to 30 grams). In late 2020, Foxx’s office returned to court, asking to vacate/expunge the remaining eligible misdemeanor and Class 4 felony cannabis convictions for years 2013 to 2020.
According to the Chicago Tribune article, the only other county prosecutor to follow Foxx’s lead thus far has been Patrick Kenneally, the McHenry County State’s Attorney.
Pro Bono Expungement Assistance Available Statewide
If you have a cannabis conviction but don’t know whether it qualifies (to be vacated and expunged), there is an easy and cost-free way to find out.
You can apply for legal assistance through the Illinois Legal Aid Online website. From there, you’ll be referred to one of 20 legal aid agencies sprinkled throughout the state. These agencies have received state funding to provide pro bono (free) services in helping to vacate and expunge these cases.
Non-Citizens Beware: Benefits of Cannabis Law May Not Apply to You
If you have a cannabis conviction (or were sentenced to supervision) but are not a U.S Citizen (i.e., a legal resident, visa holder), I urge you to consult an immigration attorney before pursuing this expungement action.
Because cannabis remains a controlled substance under federal law, the fact that Illinois and a dozen other states (plus D.C.) have legalized it has not eliminated the severe consequences non-citizens face when convicted of a drug offense.
In a separate blog posting, I address the legal complexities non-citizens will encounter when determining if there is any benefit in vacating their cannabis conviction under federal immigration law.