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About that expungement issue

Tuesday, May 21, 2019

* From the other day

A Republican state senator on Wednesday suggested that Illinois’ Democratic governor issue a mass pardon of all low-level marijuana convictions to relieve legal concerns associated with a bill that would legalize possession and sale of recreational marijuana.

Sen. Jason Barickman of Bloomington said a mass pardon would pave the way for the automatic expungement of hundreds of thousands of past marijuana-related convictions, a goal of the bill’s sponsors to correct for injustices of the “war on drugs.”

Barickman said he is “interested in coming to an agreement” that would allow him to support Senate Bill 7. But he said the expungement process would be “incredibly convoluted” in the state’s 102 counties without a mass pardon by the governor. […]

A mass pardon or individual pardons would avoid the potential of expungements being declared invalid under the Illinois Constitution because the legislature lacks the power on its own to reverse convictions, according to Robert Berlin, president of the Illinois State’s Attorney’s Association.

A couple of thoughts on this.

1) The proposal as currently written also expunges arrest records. The governor can’t do anything about those.

2) The opponents also objected to the proposal’s provision providing for future expungements. But the state already has a similar automatic expungement law on its books, and it hasn’t been challenged in court

Except as otherwise provided in subsection (0.15) of this Section, the Department of State Police and all law enforcement agencies within the State shall automatically expunge, on or before January 1 of each year, all juvenile law enforcement records relating to events occurring before an individual’s 18th birthday…

* From Ben Ruddell, Director of Criminal Justice Policy, ACLU of Illinois…

There is no constitutional reason why the General Assembly can’t pass a law requiring the automatic expungement of criminal records. We already have such laws on the books here in Illinois.

It is our understanding that SB 7 is still a work in progress. The ACLU and other advocates and stakeholders have, at the invitation of the sponsors, submitted comments and suggested changes to these provisions and a host of others. But any suggestion that the legislature can’t constitutionally require the automatic expungement of marijuana convictions is just a red herring.

* But law enforcement interests aren’t the only ones with objections to the bill as written

State Representative Carol Ammons said during a recent interview it will be difficult for her to get behind a proposed bill to legalize cannabis without significant changes to the legislation. The Urbana Democrat said expungement for prior marijuana offenses is chief among her concerns. A summary of the legislation outlines an automatic expungement process for people arrested and convicted of cannabis crimes.

But the summary explicitly excludes individuals who were also charged with other offenses when they were arrested for cannabis crimes. Those individuals could separately petition the courts to have their records expunged, according to the summary.

Ammons said that’s not fair. She believes everyone regardless of what other crimes they may have been charged with should still be able to receive automatic expungement for cannabis offenses.

“If I have a marijuana charge, and I may have robbed a bank and they found a little marijuana on me, and they charged me with that up-charge. Take away the marijuana charge. I’ll still deal with the bank robbery,” she said.

I’m thinking that’s a bit much.

* Related…

* Wolf Signs Bill Sealing Some Criminal Records After Decade: Lower-level, nonviolent crimes in Pennsylvania will automatically be sealed from public review after 10 years under a law signed Thursday, a change designed to lessen the stigma for people seeking jobs or housing.

* Utah Becomes the Second State with Automatic Expungement

- Posted by Rich Miller        

21 Comments
  1. - Sarcastic One - Tuesday, May 21, 19 @ 12:24 pm:

    I’ve said it before and I’ll say it again… If it was illegal when you did it, your charges should not be expunged. You still broke the law.


  2. - Grandson of Man - Tuesday, May 21, 19 @ 12:27 pm:

    Purity people or extremists are potentially harming this historic reform effort. Why not go for what can pass instead of killing the bill? Killing the bill would leave everything as is, with zero expungements, zero home grow, zero businesses in low-income neighborhoods, the black market getting 100% of recreational marijuana sales, no prohibited sale to minors—the things that have made marijuana prohibition such an abysmal failure. Are the babies going to break this legislation because they can’t get everything their way?


  3. - Dave's not here, man - Tuesday, May 21, 19 @ 12:28 pm:

    I favor expungements for all the simple possession, non-dealers.

    I’m harder to convince regarding actual dealers. I know; “cop math” would have anybody caught with a dime bag classified as a dealer. Still, the ones that were selling large amounts (we’re arguing what specifically “large” is) should not get off as easy as users caught with a roach.


  4. - TheInvisibleMan - Tuesday, May 21, 19 @ 12:33 pm:

    ===
    But any suggestion that the legislature can’t constitutionally require the automatic expungement of marijuana convictions is just a red herring.
    ===

    It would seem that the police and prosecuting attorneys have nothing else but these red herrings.

    Makes me wonder how many other aspects of their jobs consist of these red herrings as the go-to reasoning right off the bat.


  5. - NorthsideNoMore - Tuesday, May 21, 19 @ 12:52 pm:

    The Gov can pardon any and all now, but, he might not want to “wear the jacket” if someone that he lets off commits some other crime(s), the Courts can expunge seal etc., the ILGA has no part in the process.


  6. - Rich Miller - Tuesday, May 21, 19 @ 12:54 pm:

    ===The Gov can pardon any and all now===

    He can’t pardon someone who was simply arrested.


  7. - Pundent - Tuesday, May 21, 19 @ 12:55 pm:

    =Are the babies going to break this legislation because they can’t get everything their way?=

    In a word, yes. Because it’s not about getting everything their way, it’s about breaking the legislation. And to do that they’ll use whatever purity argument or scare tactic possible. And when they put their no vote on it they’ll claim that they were all in favor of voting yes but the bill was “flawed.” And these “flaws” be it fear of Chinese cartels, the need for more research, or a perfect expungement process will keep legalization from happening anytime in the near future.


  8. - wordslinger - Tuesday, May 21, 19 @ 1:05 pm:

    The fact that Utah can see it’s way to automatic expungement for low-level arrests and convictions is just another reminder that opponents here are just looking to kill recreational marijuana by any means possible.


  9. - Downstate Illinois - Tuesday, May 21, 19 @ 1:27 pm:

    Too many people want to rewrite history. Past crimes should not be hidden. Next you’ll say that an prospective employer/landlord/spouse has no right to use or consider such information when making a decision. All information should be on the table. Politicians who put the drug dealers who’ve been destroying their communities before the needs of their law abiding residents are probably guilty of far worse. At least that’s been the case throughout the last century.


  10. - Illinois Resident - Tuesday, May 21, 19 @ 1:30 pm:

    Hopefully lawmakers can come together and agree on something. Personally, I prefer very broad expungement reform as long as they are non violent in nature. But some reform is better then none and the goal should be to get something done this session.


  11. - Bourbon Street - Tuesday, May 21, 19 @ 1:34 pm:

    I think the legislators need to agree on definitions of terms in order to avoid confusion. Generally, a “pardon” is forgiveness from a governor for a past conviction. “Expungement” is the sealing or destruction of records and the legislature defines what can be expunged and the conditions attached to an expungement.

    Rich is correct that governors do not issue pardons for arrests.

    I think Senator Barickman is correct in terms of trying to avoid future problems with regard to convictions. His view (as I understand it) is that sealing or destroying a record of a conviction is not the same as pardoning the person for the crime. If the legislature is statutorily trying to pardon people by declaring that an “expungement” has the same legal effect as a “pardon”, then that statute may violate the Illinois Constitution because, as the prosecutors have pointed out, only the Governor can issue a pardon. Pennsylvania and Utah may not have the same constitutional provisions that Illinois has with regard to who can issue pardons.


  12. - Rich Miller - Tuesday, May 21, 19 @ 1:35 pm:

    ===if the legislature is statutorily trying to pardon people by declaring that an “expungement” has the same legal effect as a “pardon”===

    Taking a long way around the bend for that logic. It’s an expungement. Expungements are legal.


  13. - Bourbon Street - Tuesday, May 21, 19 @ 1:49 pm:

    No argument from me on that, Rich. That’s why I wrote “if” with regard to the legislature’s intent. I’m trying to keep up but it appears that some (Barickman and State’s Attorney Berlin and the prosecutors’ association) are interpreting the expungement proposal as a pardon. That’s why I think the legislators need to agree on definitions of terms.


  14. - Rich Miller - Tuesday, May 21, 19 @ 2:00 pm:

    ===are interpreting the expungement proposal as a pardon===

    And they’re doing it for a reason. Try to keep up here.


  15. - I Miss Bentohs - Tuesday, May 21, 19 @ 2:09 pm:

    A nice round number guess anyone to the question: If the Gov grants the pardon, how much money is saved?

    I think making that number sound good should be easy justification for JB.


  16. - Bourbon Street - Tuesday, May 21, 19 @ 2:17 pm:

    I get that they’re trying to slow the process so that nothing happens before the end of the session or scuttle the bill altogether. A way to shut them up is to add a provision defining “expungement” so that it is clear that it is not a pardon. Of course nothing is going to stop opponents from coming up with new arguments, but it may help.


  17. - Rich Miller - Tuesday, May 21, 19 @ 2:23 pm:

    ===A way to shut them up is to add a provision defining “expungement”===

    “Expunge” means to physically destroy the records or return them to the petitioner and to obliterate the petitioner’s name from any official index or public record, or both. Nothing in this Act shall require the physical destruction of the circuit court file, but such records relating to arrests or charges, or both, ordered expunged shall be impounded as required by subsections (d)(9)(A)(ii) and (d)(9)(B)(ii).

    http://ilga.gov/legislation/101/SB/10100SB0007sam001.htm


  18. - P Town Cynic - Tuesday, May 21, 19 @ 2:59 pm:

    Downstate- I would argue that just because it was law or policy before, doesn’t mean it was good law or policy. Was redlining zoning and housing, as well as Jim Crow Laws good policy or laws? Expunge, legalize and move along. We have alot of healing to do in this country, this policy addresses some of those concerns when we look at communities that have been victims of the failed war on drugs. Get this done.


  19. - Bourbon Street - Tuesday, May 21, 19 @ 3:03 pm:

    You are correct that the definition of “expungement” is in the bill—it is not a new definition, but the definition that presently exists in a statute that governs expunging records of arrests and criminal charges not resulting in convictions. Presently, there are certain types of dispositions in criminal cases where, if a defendant successfully completes an order of supervision or a particular kind of probation, no conviction results. The expungement statute addresses these types of dispositions, also.

    Expunging felony convictions is something new in Illinois as far as I know. I am not aware of any present Illinois statute that allows a felony conviction to be expunged. The legislature is adding certain types of cannabis convictions to the present expungement statute.

    Amending the definition of “expungement” to make it clear that an expungement for a conviction is not a pardon is not a task that requires heavy lifting and, if it helps, all the better.


  20. - Bernie Sanders Barber - Tuesday, May 21, 19 @ 3:08 pm:

    When is “social equity” going to address larger problems like wealth disparity and the student loan debt crisis?


  21. - charles in charge - Tuesday, May 21, 19 @ 5:34 pm:

    Why should a person who got a retail theft or criminal damage to property charge at the same time as a cannabis possession arrest be excluded from the bill’s automatic expungement provisions? We know the petition process for expungement is onerous and expensive, and if people are forced to go through that process, then there will be many thousands of people who will never get any relief at all. Even if the Governor was to grant someone a full pardon, the person would still have to go through that petition process unless the bill provides for automatic expungement.


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