770,000 Reasons Legal Weed States Should Be Like Illinois

When Illinois became the 11th state to legalize recreational marijuana, state legislators included provisions that opened the door for some 770,000 residents, previously convicted of possession of less than one ounce of weed, to have those criminal records expunged.

Given that Illinois’ population is around 12.75 million, and that children under 18 make up about 27 percent of the U.S. population, my math says nearly 4 percent of Illinois citizens have been arrested on pot-related charges at least once and are likely eligible for expungement.

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This startling fact alone should underline the urgent need to visit this issue at a national level. Just two weeks ago, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held historic hearings. Entitled “Marijuana Laws in America: Racial Justice and the Need for Reform,” it was believed to be the first congressional hearing in history to examine cannabis in the context of ending the federal government’s prohibition of the plant.

If you want to put a face to the numbers, Howard Hogue, 42, is one of the 770,000. Married with children, a lifelong resident of Chicago’s South Side, he recently began a new job working a swing shift at a dog kennel.

Since 1998, Hogue has been arrested nine times for marijuana possession.

He’s been convicted once — for misdemeanor possession of 2.5 grams.

That's not much weed. If I call up my local Southern California marijuana delivery service, I can order a plastic tube containing two pre-rolled joints, a net weight of one gram of weed, for $8 plus about 30 percent tax and fees. Delivery in under 45 minutes is free, so long as I spend more than $50, otherwise it’s $5 extra. Tip is also extra. (May the universe bless the drivers who bring the sacrament while I’m watching the tube.)

Over the years, Hogue has worked as a fast-food cook, dog-walker, farmhand, security guard and union representative. He says he believes his marijuana conviction for carrying about $20 worth of weed (plus tax) has hindered or limited his job prospects.

“There’s always that place on a job application that says: ‘Have you been convicted of a crime?’ What can you do but answer honestly? I know for a fact that’s the reason I’ve been turned down on occasion. They’re like, ‘Okay, thank you but no thank you.’”

Forty-four states plus the District of Columbia allow recreational and/or medical marijuana. The Illinois law is the first to be initiated and passed by a legislature, rather than by a ballot initiative. Carried by a bipartisan majority, Illinois’ statute is seen as socially progressive, leading even California with the expungement plan. Out here in the Golden State, there’s been a lot of talk, but no action yet.

"Illinois lawmakers have gone the farthest so far to ensure that expungement and equity are part of the plan to legalize adult use from the get-go,” says CannabisWire.com co-founder Alyson Martin, known in weed circles as the Queen of the Cannabis Beat.

“As we've seen in other states that have legalized, rulemaking can be unpredictable, and if lawmakers don't prioritize provisions like expungement, there's no guarantee what shape those policies will take," Martin says.

Interestingly, the Illinois bill evolved from a two-year effort by a self-appointed, four-woman team of legislators known publicly as the "Marijuana Moms."

“Among ourselves we say Canna-bitches,” says Rep. Kelly Cassidy, during a wide-ranging background interview. I got the idea that being a media-savvy politician, she wouldn’t have given me that saucy tidbit if she didn’t want me to use it. Sometimes I interview pols who talk and act like real people. Rep. Cassidy seems to be one.

Legally called House Bill 1438: The Cannabis Regulation and Tax Act, the statute allows licensed growth, sales, possession and consumption of cannabis for adults 21 and over. It includes components that address social equity (creating opportunities for minority business owners to capitalize on the new industry) and criminal justice (addressing decades of racial disparities in the prosecution of drug crimes). Principle among the last is expungement, which permits the state to automatically grant clemency to residents who were convicted for possessing up to 30 grams of cannabis.

Expungement is a court-ordered process in which the legal record of an arrest or a criminal conviction is "sealed," or erased in the eyes of the law. When a conviction is expunged, the process may also be referred to as "setting aside a criminal conviction."

According to the ACLU, between 2001 and 2010, more than 8 million weed-related arrests took place in the U.S. That’s one bust every 37 seconds — and hundreds of thousands of citizen stoners ensnared in the criminal justice system. Even if not charged, there can be a night in jail; plus time and expensive legal fees.

The new law provides for automatic expungement for non-convictions (arrest records) and convictions of minor cannabis offenses involving up to 30 grams of cannabis.

Class 4 felony convictions for cannabis possession, manufacture, delivery, and or possession with intent to deliver 30 grams or less of cannabis will also be eligible for automatic expungement.

More universally, Hogue says, Illinois’ new law might contribute to a different attitude by police in neighborhoods like his. If weed is legal, he figures, the cops will have one less cause to stop people on the streets.

In an ACLU report entitled “The War on Marijuana in Black and White,” researchers found the weed use is roughly equal among blacks and whites, yet blacks are 3.73 times as likely to be arrested for marijuana possession.

“Racial disparities in marijuana possession arrests exist in all regions of the country, in counties large and small, urban and rural, wealthy and poor, and with large and small black population. Indeed, in over 96 percent of counties with more than 30,000 people in which at least 2 percent of the residents are black, blacks are arrested at higher rates than whites for marijuana possession,” the report says.

This is not something you have to tell Hogue, who was introduced to me by Cabrini Green Legal Aid, established in 1973 to serve the legal needs of low-income folks who run afoul of the criminal justice machine. Over the last four or five decades, weed has figured prominently.

“Racial profiling is still a big thing in the city of Chicago,” Hogue says. “Especially when you have a certain look. The cops just roll the dice. They figure they’re gonna get you for something.”

Just last week, Hogue says, he was riding his bicycle on a busy South Side street when he was nearly sideswiped by a motorist. Swerving to recover, and seeking safety, Hogue rode up onto the nearest sidewalk — which he knew very well is illegal in Illinois, but hey, he’d just had a brush with death.

As luck would have it, a police car appeared around a corner. The two cops inside spotted a grown man with dreadlocks riding a bicycle on the sidewalk. Hogue was immediately pulled over, which enabled a search of his person. This time he was clean.

Both officers were black men. When Hogue complained to them for sweating him—after all he’d nearly been hit ... and anyway, he was just about to pull back into the street when he was stopped — one of them said, frankly: “Man, when we pull over brothers like you with dreadlocks, three out of five times, we're going to get drugs or guns. We just didn't get it on you."

A couple days later, Hogue cut off his dreads. “Just doing what I must to survive in this land,” he explained in his world weary but mellifluous tone.

So when it comes to all this talk of expungement, and the government making an effort to bend over backward and notifying you by official mail when they’ve cleaned your record—forgive him if he takes a little bit of a wait-and-see attitude.

“I’ve reached a certain point my life where I’m skeptical, you know what I’m saying? I’ll believe it when I get that letter in my mailbox."

Mike Sager is a bestselling author and award-winning reporter. His work has appeared in Esquire, Rolling Stone, GQ and the Washington Post. Many of his stories have been optioned for or have inspired films or documentaries. He has been called "the Beat poet of American journalism, that rare reporter who can make literature out of shabby reality."

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