SPRINGFIELD — Criminal record expungement language in a bill legalizing recreational marijuana in Illinois might be unconstitutional. That is the warning one chief county law enforcement official gave to the State Journal-Register fora story first published online Monday.
At issue is the General Assembly’s legal authority to erase criminal records for those previously convicted of possession crimes.
Robert Berlin, president of the Illinois State’s Attorneys Association, said the Legislature can create a process by which people can petition to have their records wiped. But the language in question “provides for an automatic expungement.”
“The issue is a separation of powers issue,” he said.
The first draft ofSenate Bill 7, which is scheduled for a committee hearing Wednesday, details an expungement procedure and schedule for state and local law enforcement agencies, state’s attorneys and courts to follow.
It is a “critical” component of the legalization measure, Chicago Democratic Rep. Kelly Cassidy said. She is the bill’s sponsor in the House, and spent more than two years working with Sen. Heather Steans, a Democrat from Chicago, negotiating the pieces of a potential recreational program.
“We’ve always said that the language about how this gets done is a work in progress,” Cassidy said in an email Tuesday. “We have been talking to the prosecutors and law enforcement from day one.”
The bill instructs law enforcement to comb through its records and identify everyone convicted of a possession charge that would be eligible for “automatic expungement,” according to the legislation. A list is sent to state’s attorneys, who then submit it to a court for a judge’s approval.
The provision is included in the measure because if recreational marijuana becomes legal in Illinois, the individuals’ conviction would become “legally invalid,” the bill states.
It is additionally part of an initiative by Democratic Gov. J.B. Pritzker to focus on “equity,” he said Tuesday.
“Expungement is also part of something that I said from the very beginning, which is that this needs to be about equity as much as anything — that we need to focus on the criminal justice reform aspects of it, the safety aspects of it — and indeed lots of that was included in the bill,” the governor said.
Berlin said the proposal does not allow for oversight on each of the cases, or give judges enough discretion before erasing individuals’ records. Some cases, for example, could have a reduced charge because the individual took a plea bargain, he said.
“The problem I see is it requires the states’ attorneys to actually present this list to a judge and it tells a judge to sign it,” Berlin said.
Instead, he proposes leaving the current expungement process in place — let those convicted of marijuana possession petition a court to have their record wiped clean. A state’s attorney would have time to respond to such a request and a judge the time to review the details of each case.
“Our criminal justice system is built around judges being able to make these decisions,” Berlin said. “Give the judge the power and the authority and the discretion to grant a petition for expungement. I think that system works very well.”
Ann Lousin, a constitutional a professor at the John Marshall Law School in Chicago, helped draft Illinois’ governing document at the Constitutional Convention five decades ago. She said only the governor can make pardons or commutations.
Alternatively, she said, the cleanest way to handle this constitutional challenge would be for Pritzker to announce he would issue a blanket pardon for Illinoisans convicted of possessing marijuana, and for the General Assembly to remove the expungement component from the recreational marijuana legislation.
The last time a governor exercised his ability to commute a large number of sentences was in 2003, when then-Gov. George Ryan mitigated the sentences of Illinoisans on death row. The attorney general challenged the action and the state’s highest court issued an opinion agreeing the governor had the authority.
“The grant of this essentially unreviewable power carries with it the responsibility to exercise it in the manner intended,” the court wrote. “Our hope is that governors will use the clemency power in its intended manner — to prevent miscarriages of justice in individual cases.”
If the language remains as is, Lousin added, the state’s attorneys would probably file a legal challenge.
Berlin said the State’s Attorneys Association has taken a neutral position on the bill as a whole, but added members of the group have had “a very good dialogue” with Cassidy and Steans over the past few weeks.
“They’ve taken all of our input,” he said. “May 31 is approaching and there’s still a lot of work to be done.”
Steans said changes will be made to the proposal, and the hearing scheduled for Wednesday is to allow members of the public to hear reaction from stakeholders on the current version. But expungement has been a “strong goal” of the bill and there are “compelling reasons” why it needs to be achieved.
“One thing we’re finding is that some folks are just against expungement but need a fig leaf – any fig leaf – to hide their objection to the idea,” Cassidy said in an email.
Chicago Democratic Sen. Kimberly Lightford, the chairwoman of the Legislative Black Caucus, said erasing the records of individuals is a “key provision” to the bill moving forward.
“I believe the automatic expungement of nonviolent marijuana convictions is imperative to this legislation. It’s not an area that we’re willing to ignore,” she said. “Conversations are still taking place. We want to have a strong law. We want it to be a law that is constitutional, but we want to make sure it is also fair.”