The Governor of Maryland announced plans to pardon more than 175,000 people with convictions for cannabis possession. This joins a larger trend both federally and among many states (including Illinois) to forgive and help those with low level cannabis cases as the public perception of the drug moving more towards acceptance.

Unfortunately for those in Maryland, these pardons do not also expunge the cases from their record. In Illinois, cases that receive a pardon can also be expunged so that the former conviction does not continue to come up on background checks.

By: Bryant Chavez and Hannah Garst

On June 25, 2019, Gov. J.B. Pritzker signed into law HB 1438, which will end cannabis prohibition and replace it with a system to tax and regulate cannabis for adults 21 and over. Beginning on January 1, 2020, adults (21 and older) may possess and/or purchase cannabis products in licensed stores. Possession is limited to:

• 30 grams of raw cannabis;
• Cannabis-infused product or products containing no more than 500 mg of THC; and
• Five grams of cannabis product in concentrated form.

In addition to legalizing possession and use for adults, it allows for expungement for cannabis offenses. If you were convicted of possession of between 30 and 500 grams of marijuana, we can petition the Court for an expungement. The Court will weigh many factors, including facts of the underlying offense, when considering whether to grant the petitions to vacate and expunge your record. It is up to us to convince the Court that the remedy is appropriate for you.
Automatic Expungement of Criminal Records Involving Marijuana (Cannabis) Convictions of less than 30 grams
Individuals with qualifying offenses and records are not required to take any action to have their records automatically expunged. However, if you would like to have your record expunged as soon as possible, we can petition the Court to vacate and expunge the conviction without waiting for the Prisoner Review Board and Governor.

• Arrests Not Resulting in Criminal Charges: These cases are currently eligible to be expunged. However, starting on January 1, 2020, expungements will be automatic for arrests involving up to 30 grams of marijuana as long as at least one calendar year has passed since the date of arrest and no subsequent criminal charges were filed related to the arrest. Automatic expungement will start according to the date of the original arrest (see below).
• Arrests Resulting in Criminal Charges Not Resulting in a Conviction: These cases are currently eligible to be expunged. If you would like to have your record expunged as soon as possible, contact us today to start this process. Automatic expungement will start according to the date of the original arrest (see below).
• Convictions Involving Possession of Marijuana 30 Grams or Less: Starting on January 1, 2020, convictions involving up to 30 grams of marijuana will be eligible for automatic expungement. The violation must not have involved delivering marijuana to a child under the age of 18 who was at least 3 years younger than the defendant and did not involve a violent crime. The Illinois State Police will automatically identify all eligible conviction records and forward them to the Prisoner Review Board. After the Prisoner Review Board reviews the records, it will go to the governor with a recommendation for pardon. Once the governor grants a pardon, the state attorney general will petition the court to expunge the record.
• Timetable for Automatic Expungements

The schedule (and deadlines) for law enforcement agencies to automatically expunge qualifying offenses and records is based upon the initial date of arrest.

• Records created between January 1, 2013 and January 1, 2020, shall be automatically expunged prior to January 1, 2021
• Records created between January 1, 2000, and December 31, 2012, shall be automatically expunged prior to January 1, 2023
• Records created before to January 1, 2000 shall be automatically expunged prior to January 1, 2025.

Individuals with qualifying offenses and records are not required to take any action to have their records automatically expunged. However, if you wish to start the expungement process today, contact the Bryant Chavez Law Office, LLC.
 
The automatic expungement mandate does NOT apply to marijuana related arrests and convictions associated with arrests and/or convictions for:

• Violent sexual offenses
  
• Sexual offenses against a minor
• Stalking offenses
• Any offense resulting in a court order to register as a Sex Offender
• Animal abuse offenses

Violations of local ordinances

Governor Rauner signed a bill today that expands the number of cases eligible for sealing in Illinois. Previously, most misdemeanors and only a select few felonies were eligible for sealing. If you were convicted of a low-level felony that wasn't specifically eligible, then you likely could petition the Prisoner Review Board to gain sealing eligibility. For anyone not eligible for this relief, the only option was to seek clemency from the Governor.

But now with the change in the law, most felony convictions become eligible for sealing without the need for special approval. The new law takes effect immediately. If you have a case the was previously only eligible for a pardon, contact my office to see if the new law applies to you.

According to Michael Sneed of the Chicago Sun-Times, former U.S. Attorney General Eric H. Holder Jr. recently sent a letter to Chicago Ald. Anthony Beale (9th) criticizing Beale’s proposed ordinance to add regulation for rideshare companies Uber and Lyft. Beale’s proposed ordinance would, among other things, mandate drivers for Uber and Lyft to submit to fingerprint background checks.
 
Holder posits that the fingerprint-based background check can have a discriminatory impact on communities of color. He notes that the FBI records from which the fingerprint checks are drawn are often incomplete and do not always show the results of the arrest. Because people of color are statistically more likely to pick up an arrest, their communities would be disproportionately impacted, even when (as is often the case) those arrests do not result in a conviction.
 
I support Holder’s criticisms. In my work, people often come to me with their FBI records looking for an expungement or sealing. It is actually relatively rare for the records to comprehensively contain all the information about what happened in a case. They can be a good starting point for me to figure out what is on a person’s record, but they are mostly worthless for determining eligibility to expunge or seal because they so often don’t list the outcomes of the cases.
 
The ironic part of this is that Uber and Lyft already perform background checks on potential drivers. Many clients have come to me needing to expunge or seal their record specifically because they didn’t pass the background check for these companies. The difference though is that those background checks are designed for employment purposes and therefore typically obtain the disposition information.

Tuesday is primary election day in Illinois, and here in Chicago one candidate is dealing with the same struggle many of my clients face—trying to obtain or keep a job despite the stigma of a criminal record. In a hotly contested race for the 5th District Illinois Assembly Seat, voters received campaign mailers featuring an old mugshot photo of incumbent Rep. Ken Dunkin. The date stamp indicates the photo is nearly 20 years old. In addition to the mugshot, the Sun-Times reported that the mailer listed information about the alleged crimes that may be incomplete and inaccurate.

Dunkin’s opponent, Juliana Stratton, insists her campaign had no involvement with sending the mailer. Nonetheless, she has failed to denounce the scare-mongering tactic. She told the Sun-Times that while she’s “an advocate for a second chance” she believes candidates for public office should be held to “a higher standard.”

While there may be some validity to her point, a mailer that paints a candidate in broad strokes as a criminal thug clearly seeks to provoke a knee-jerk disgusted reaction from voters. This type of labelling of individuals as criminals or felons without any explanation or context for their mistakes is what we at the Bryant Chavez Law Office fight against every day. For a politician like Dunkin, it’s one issue among many that citizens will use to decide whether to vote for him. For ordinary people applying for jobs, it often means outright and immediate rejection. Dunkin is lucky he has a public platform for explaining himself. Regular people with criminal records do not, which is why it’s so important that we have opportunities for reformed individuals to expunge or seal their old cases.

One common expungement misconception that I often hear is the notion that, after a certain length of time, the criminal record will automatically expunge.  This is not the case, no matter how old a case may be.  However, that may change for certain juvenile records.  Under a new bill proposed by Rep. Arthur Turner, arrest records of juveniles will automatically expunge when the juvenile reaches 18 years old.  The automatic expungement would only be for juveniles that were arrested and released without being charged in court.

This is a good bill because it protects juveniles that may not be well-informed of the judicial process.  Most juvenile records are eligible for expunging after a certain length of time, depending on the details of the case.  For those juveniles that are arrested and charged in court, they will be informed of their ability to expunge during the adjudication.  Their defense attorneys or the judge will be there to explain when and how the juvenile can expunge the case from her criminal record.  But if a juvenile is arrested and released right away, she may not ever speak with an attorney to learn her eligibility.  She may not even realize that a record of the arrest is made and kept.

According to the Chicago Sun-Times, about 75% of juvenile arrests in Cook County do not result in charges.  These juveniles shouldn’t be punished for their cases not being as severe as those for whom a delinquency petition was filed.  Otherwise they may only learn of their need for an expungement after a job/opportunity was already lost.

In the course of my work as pardon/expungement attorney, I occasionally encounter individuals that argue that my clients should not get to clear their criminal records.  It’s a do-the-crime-do-the-time argument where “the time” extends beyond the formal sentence into any future repercussions of their offense, regardless of proportionality.  Aside from the general vindictiveness of that mentality, this position also does a disservice to society as a whole. 

That is why I enjoyed reading Neil Steinberg’s recent article in the Chicago Sun-Times, which takes up the defense of a University of Illinois instructor who previously served time in federal prison.  The instructor had been part of a group that had committed several felonies, including a bank robbery in which a person was killed.  The article goes on to examine his life after the events of that case, and argues that his rehabilitation should carry more weight than his mistakes.

The lesson here is that even smart, creative people make mistakes.  While it is great that this instructor was still able to succeed, there are many for whom the burden of a criminal record is a life sentence.  Right now, there are young folks with world-class potential to become professors, doctors, scientists, etc. and are picking up criminal records.  Many of them will face so many roadblocks from their conviction that they never realize this potential.  You can extend this reasoning further and find that there are many hard-working, rehabilitated people that are unemployed or underemployed because of background checks finding a mistake they made long ago.  Most might not even realize that they have options to clear their criminal records.  When as a society we allow for great reservoirs of talent to go untapped, we all lose.

By now you’ve probably heard at least one story of someone who was released from prison after serving time – sometimes many years – for a crime they didn’t commit. The exonerations often come through updated DNA tests and the diligent efforts of Innocence Project groups. This work is certainly commendable. Although it must be a huge relief for individuals to have their conviction overturned, many may not realize that their criminal record still remains.

As the New York Times has reported, exonerated individuals often have a hard time assimilating back into society. In particular, it’s difficult to find a job. Unfortunately, many employers discard all applicants who have anything on their criminal record, regardless of the severity of the offense or whether the charges resulted in a conviction. The best way to improve your chances is to request that your state expunge the case from your record.

Some states have difficult requirements for getting a record cleared. In Alaska, for example, you actually have to prove your innocence in order to get a record sealed. This is a bigger hurdle than proving the state did not have sufficient evidence to convict.

Thankfully, in Illinois, it’s a relatively quick and straightforward process to get your record expunged after you’ve been exonerated. If your case occurred in Illinois, contact us at the Bryant Chavez Law Office for a free consultation.