On May 31, Illinois House Bill 1438, better known as the Cannabis Regulation and Tax Act, passed the Illinois House of Representatives by a vote of 66-47. The Act now awaits the signature of Governor J.B. Pritzker – a vocal supporter of the bill – prior to making Illinois the 11^thstate in the United States to legalize marijuana for recreational purposes. Once the Act is signed, the sale, possession, production (through the licensure system) and recreational use of marijuana by persons 21 years or older will become legal in Illinois, effective January 1, 2020.

In addition to ending the prohibition on marijuana usage in Illinois, the Act also includes sweeping social justice provisions focused on expunging the criminal records of those arrested and/or convicted of non-violent marijuana related offenses. Whether or not an individual is eligible for expungement under the Act, or required to take action in order to have their record expunged, is largely dependent upon the type of crime they were originally arrested for and the date of that offense.

Can My Marijuana Conviction be Expunged?

The short answer to this question is (in most cases), yes.

However, while the Cannabis Regulation and Tax Act’s expungement provisions are expected to impact roughly 770,000 Illinois residents, not all offenses are eligible for expungement. Additionally, under the Act, certain offenses may be subject to automatic expungement while others may require individuals to petition the court in order to be considered for expungement.

Automatic Expungement

The Act mandates the review and automatic expungement (by local state’s attorneys, the state Prison Review Board and Governor’s office) of all “minor cannabis offenses,” so 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.

The Act defines a “minor cannabis offense” as:

“a violation of Section 4 or 5 of the Cannabis Control Act concerning not more than 30 grams of any substance containing cannabis, provided the violation did not include a penalty enhancement under Section 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 and Witnesses Act.”

Under this definition, a majority of non-violent offenses related to the possession, manufacture and distribution of less than 30 grams of marijuana will be eligible for automatic expungement.

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

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

• Records created prior to the effective date of the Act (January 1, 2020), but on or after January 1, 2013, shall be automatically expunged prior to January 1, 2020
• Records created prior to January 1, 2013, but on or after January 1, 2020, shall be automatically expunged prior to January 1, 2023
• Records created prior to January 1, 2000 shall be automatically expunged prior to January 1, 2025

All qualifying offenses are required to be automatically expunged no later than January 1, 2025, five years from the effective date of the Act.

Individuals with qualifying offenses and records are not required to take any action to have their records automatically expunged.

Expungement by Petition

All individuals with records of marijuana offenses related to possession of between 30 and 500 grams of cannabis (misdemeanors or Class 4 felony violations of Sections 4 or 5 of the Cannabis Control Act), while ineligible for automatic expungement, are provided the opportunity to petition the circuit court for expungement (and a vacated conviction) under the Act. Unlike records eligible for automatic expungement, these petitions are not guaranteed to result in expungement (or a vacated conviction), but do create the opportunity for such a result, which did not exist prior to the Act.

This process, as detailed by the Act, allows qualified “petitioners” (individuals seeking expungement) to petition the circuit court for expungement following “the completion of any sentence or condition imposed by the conviction.” This includes all instances of:

• Acquittal, dismissal or release without charges
• Vacated or reversed convictions
• Successfully completed of orders of supervision
• Successfully completed probation

The Act provides time frames (designated waiting periods) for filing a petition to expunge for each categories of petitioner:

• For arrests resulting in acquittal, dismissal, release without charges, a vacated conviction or reversal, there is no waiting period to petition for expungement of those records
• For arrests resulting in an order of supervision for any offenses not specifically outlined by the Act, petitioners must wait 2 years following the satisfactory termination of supervision to petition for expungement of those records
• For arrests related to the listed violations of the Illinois Vehicle and Criminal Codes (Section 3-707, 3-708, 3-710, or 5-401.3 of the Illinois Vehicle Code, Section 11-1.50, 12-3.2, 12-15 of the Criminal Code of 1961 or 2012), petitioners must wait 5 years from the satisfactory termination of supervision to petition for expungement of those records.
• For arrests resulting in an order of qualified probation, petitioners must wait 5 years following the satisfactory termination of probation to petition for expungement of those records

Because these petitions are not guaranteed to result in expungement, the court will take into account the reasons for law enforcement to maintain a petitioner’s records; the petitioner’s age; their age at the time of the offense; the time since conviction; and, the adverse consequences the petitioner would suffer if their petition was denied, prior to making a decision regarding expungement.

The Act also allows the state’s attorney offices of any Illinois country to file motions to expunge records on behalf of any convicted individual whose conviction the office has jurisdiction over.

Questions About Expungement?

For individuals seeking expungement under the Cannabis Regulation and Tax Act, we highly recommend contacting an attorney to discuss your options and eligibility. If you are in need of an attorney for assistance with expungement of marijuana-related offenses or any other criminal defense, post-conviction, or appeals issues, please call Nate Nieman at (309) 623-4831 or email nate@niemanlaw.com to schedule a consultation at one of our convenient locations in the Quad Cities, Chicago, or Des Moines.

In People v. Buffer, 2019 IL 122327, the Illinois Supreme Court reviewed, and ultimately affirmed, an appellate court’s decision to overturn the Cook County circuit court’s dismissal of a pro se post-conviction petition filed by the petitioner, Dimitri Buffer.

The petition asserted that a 50-year prison sentence for a crime committed by a 16-year-old was unconstitutional, as applied to the petitioner. The circuit court of Cook County initially dismissed the petition, yet their dismissal was promptly reversed by the appellate court, who held that the petitioner’s sentence was “imposed without consideration of his youth and its attendant characteristics” Id. at ¶ 1. Thus, the appellate court ruled that the sentence issued by the circuit court of Cook County constituted a violation of the petitioner’s eighth amendment rights guaranteed by the U.S. Constitution. The appellate court vacated the petitioner’s sentence and remanded the case to the circuit court for re-sentencing. Id. at ¶ 2. However, while the Supreme Court did affirm the judgement of the appellate court, the Court’s affirmation was made on different grounds than that of the appellate court. Id. at ¶ 3.

Prior to appeal, a jury found the defendant Buffer guilty of four counts of first degree murder, and specifically found that “defendant personally discharged a firearm that caused the victim’s death.” Id. at ¶ 5. In 2010, at the time of sentencing, Illinois law prescribed a sentencing range of 20 to 60 years for first degree murder and mandated a minimum 25-year additional prison term for personally discharging a firearm that “caused the victim’s death.” The Cook County circuit court merged the four first degree murder counts, sentencing defendant to 25 years for first degree murder with a 25-year mandatory firearm add-on, for an aggregate sentence of 50 years (followed by 3 years of mandatory supervised release). Id. at ¶ 5.

At the time of defendant’s direct appeal, June 2012, the United States Supreme Court decided Miller v. Alabama, 567 U.S. 460 (2012), which held that “imposing on a juvenile offender a mandatory sentence of life without the possibility of parole, without consideration of the defendant’s youth and its attendant characteristics,” violated the eighth amendment. Id. at ¶ 6. Petitioner unsuccessfully filed a motion seeking leave to file a supplemental brief addressing the applicability of Miller to his sentence. However, the court denied defendant’s motion for leave and ultimately affirmed the Cook County circuit court conviction and sentence. People v. Buffer, 2012 IL App (1st) 102411-U, leave to appeal denied, No. 115148 (Ill. Jan. 30, 2013). Id. at ¶ 6.

Following aMarch 2014 opinion by the Supreme Court of the State of Illinois, which held that Miller applied retroactively to cases on collateral review  (People v. Davis, 2014 IL 115595), defendant filed a pro se post-conviction petition in the circuit court, relying on Miller. The petition argued that petitioner’s 50-year sentence violated the eight amendment because it “constituted a de facto life sentence”. Id. at ¶ 7. The Cook County circuit court summarily dismissed the petition as “frivolous and patently without merit.” Id. at ¶ 7.

Defendant appealed from the Cook County circuit court’s dismissal of his post-conviction petition on September 5, 2014. While the appeal was pending, the United States Supreme Court agreed with the conclusion reached in Davis that Miller applied retroactively to cases on collateral review. See Montgomery v. Louisiana, 577 U.S. 136 S. Ct. 718 (2016). During that same period of time, the Supreme Court of the State of Illinois also decided People v. Reyes, 2016 IL 119271, extending Miller’s holding barring juveniles from mandatory natural life sentences to include mandatory de facto sentences. Id. at ¶ 8. The appellate court reversed the Cook County circuit court’s summary dismissal of defendant’s post-conviction petition on the grounds that “(1) pursuant to Reyes, defendant’s 50-year sentence was a mandatory de facto life sentence and (2) the circuit court failed to consider defendant’s youth and its attendant characteristics in imposing sentence.” Id. at ¶ 9. The court determined that Buffer’s sentence violated his eight amendment against cruel and unusual punishment and  vacated and remanded the case to the circuit court for re-sentencing under the juvenile sentencing statute (730 ILCS 5/5-4.5-105 (West 2016)). The State appealed the appellate court’s decision to the Illinois Supreme Court. Id. at ¶ 10.

The Illinois Supreme Court evaluated the State’s appeal and the constitutional issues involved in the original conviction and sentence in three distinct areas: the eighth amendment claim, the de facto life sentence issue, and the proper remedy. Id. at ¶ 11, ¶ 28, and ¶ 43.

As to Buffer’s eighth amendment claim, the court held that, in accordance with the United States Supreme Court view, Miller was a “substantive constitutional rule that applied retroactively.” Id. at ¶ 23. The Court also cited Montgomery as substantive reaffirmation of the holdings of Miller. The Court “concluded that Miller and Montgomery send an unequivocal message: Life sentences, whether mandatory or discretionary, for juvenile defendants are disproportionate and violate the eighth amendment, unless the trial court considers youth and its attendant characteristics.” Id. at ¶ 25. Six months later, the Court held once again, in Reyes, 2016 IL 119271, “that sentencing a juvenile offender to a mandatory term of years that is the functional equivalent of life without the possibility of parole constitutes cruel and unusual punishment in violation of the eighth amendment.” Id. at ¶ 26. As a result, the Court held that in order to “prevail on a claim based on Miller and its progeny, a defendant sentenced for an offense committed while a juvenile must show that (1) the defendant was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence.” Id. at ¶ 27.

As to de facto life sentences, the Court attempted to “to determine when a juvenile defendant’s prison term is long enough to be considered a de facto life sentence without parole.” Acknowledging, and ultimately rejecting, the wide range of opinions on the subject, the Court looked to the General Assembly for guidance as the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Id. at ¶ 34. In accordance with Miller, “the General Assembly has determined that the specified first-degree murders that would justify natural life imprisonment for adult offenders would warrant a mandatory minimum sentence of 40 years for juvenile offenders.” Id. at ¶ 39. As a result, the Court chose to “to draw a line at 40 years” for a de facto life sentence. Id. at ¶ 40. The Court thus stated, “because defendant’s sentence was greater than 40 years, we conclude that defendant received a de facto life sentence” and vacated the sentence as unconstitutional pursuant to Miller, Montgomery, Reyes and Holman. Id. at ¶ 42.

As to the remedy, the Court held that “Based on the particular issue raised in this appeal and in the interests of judicial economy, we agree with the appellate court that the proper remedy is to vacate defendant’s sentence and to remand for a new sentencing hearing.” Id. at ¶ 47.

Buffer is likely to have a significant impact on the development of juvenile sentencing law in the state of Illinois. In fact, just today, the court vacated my client’s 45-year sentence vacated pursuant to Buffer after his successive post-conviction petition was granted.