Beyond marijuana legalization: ending the war on drugs and meeting social equity promises

While the state’s cannabis regulation bill raises the bar nationally on expungement and ensuring diversity in the new industry, there’s a long way to go in repairing the damage caused by prohibition.

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Photo by Olivia Obineme

Gov. J.B. Pritzker and officials including State Rep. Kelly Cassidy, Cook County State’s Attorney Kim Foxx, Toi Hutchinson, senior adviser to the governor on cannabis control, and Deputy Gov. Christian Mitchell hold a press conference at the Leighton Criminal Courthouse in Chicago after Foxx filed motions to vacate more than 1,000 low-level cannabis convictions on Dec. 11, 2019.

With the legalization of cannabis on Jan. 1, the state of Illinois takes a huge step toward ending the war on drugs and redressing some of the terrible damage it has done to the lives of individuals and the well-being of communities.

A decades-long concern for many social justice activists, the issue has gone mainstream in the last few years, part of a growing consensus around criminal justice reform. Chicago decriminalized possession of small amounts of cannabis in 2012, making it a civil offense punishable by a fine, and Illinois followed suit in 2016. 

But as recent confusion and contention in Chicago over the terms of legalization show, legalization remains controversial. And we still have a long way to go in ending the war on drugs.

Illinois’ Cannabis Regulation and Tax Act makes the sale and possession of cannabis up to 30 grams (roughly an ounce) legal for adults and enacts the most sweeping social equity measures of any state to date. Those include expungement provisions that make relief possible for hundreds of thousands of people, extensive efforts to promote diversity in the cannabis industry, and a fund to ensure revenues from the new legal industry go to communities most harmed by prohibition.

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It represents a major shift in cultural mores and legal standards, and adjustments to the new reality will play out over the coming months and years, said Ali Nagib of the National Organization for the Reform of Marijuana Laws’ Illinois chapter.

That was evident early in December, after the Chicago Police Department said that people caught smoking cannabis on their porches or in their backyards could be ticketed and fined under the new law’s prohibition on consumption in public view. The next day Mayor Lori Lightfoot walked that back, issuing a statement saying such activities would not in fact be targeted by police.

Enforcement of the new law could evolve as cannabis gains cultural acceptance. “We’d really like to see a shifting of priorities by police” to “focus on violent crimes,” said Ben Ruddell of the ACLU of Illinois. Racial disparities in enforcement will be a key issue to watch, he said. African Americans were arrested at far higher rates than whites when cannabis was illegal, and after decriminalization, those racial disparities persisted in tickets issued by police.

Another controversy arose in November, when an ordinance introduced by Lightfoot dramatically reducing fines for minor cannabis violations and eliminating vehicle impoundments for cannabis violations was challenged by members of the City Council Black Caucus. Caucus chair Jason Ervin and other members argued vehicle impoundment was a valuable tool for cracking down on open-air drug markets on the West Side.

That was something of an about-face for Ervin, who at first argued that “if 25 grams is legal, we should not be impounding someone’s car for 25 grams … In the past, these were tools that were used to disenfranchise members of our community. To lessen those burdens based on the state statute is proper.”

Thanks to Ervin’s intervention, any vehicle used in connection with an unlawful attempt to purchase or sell cannabis, including amounts that would otherwise be legal — and including cases where “the person in [the car] is merely looking to buy marijuana” — is still subject to impoundment by police. 

That’s unfortunate. Chicago is notorious for a “uniquely punitive impound system” that “soaks people in fines and fees and deprives them indefinitely of their transportation, whether or not they actually committed an offense,” as Reason magazine has reported. “Even in cases where a defendant beats a criminal charge … they can still be found liable for thousands of dollars in fines and storage fees, and have their cars held until they pay.” According to Reason, “Chicago’s impound code, and its zero-tolerance approach to the drug war, is particularly unforgiving compared to other cities.” And because the city enforces the code through its administrative court system, it’s not even subject to protections in state law.

The City Council’s backtracking “does seem like a missed opportunity” to reduce the harm of cannabis criminalization, Ruddell said, adding that the punishment seems excessive. “At some point you have to compare the magnitude of the penalty with the seriousness of the crime,” he said.

Raising the bar on social equity and expungement

Yet another dispute arose later last month, when Ervin and other Black Caucus members pushed to postpone legalization until July, arguing the January start gave an unfair advantage to overwhelmingly white-owned medical marijuana companies. Already licensed and vetted by the state, medical dispensaries were eligible for the first round of adult-use dispensaries. 

Lightfoot pointed out that delaying legal sales would delay payments by first-round dispensaries into the Cannabis Business Development Fund, which will assist social equity applicants — prospective businesses representing individuals or communities that have been impacted by prohibition — with license fees, loans, and grants. The established dispensaries must also have social equity inclusion plans of their own, requiring them to contribute up to $100,000 or more to support social equity entrepreneurs.

One of the innovations of Illinois’ law is to capture revenues from licensing fees upfront and use them to promote social equity, instead of waiting until tax revenues roll in, said Chris Lindsey, director of government relations at the Marijuana Policy Project.

Ervin got pushback from leading members of the state legislature’s black caucus, who argued that the new law is the most equity-centric legislation in the nation. Two community-based human rights activists, Anton Seals Jr. and Willie J.R. Fleming, also spoke up against postponing legalization, as did a group of minority entrepreneurs. Meanwhile, Ervin’s effort was backed by opponents of legalization

Former State Sen. Toi Hutchinson, senior advisor to the governor for cannabis control, pointed out that the potential market share for future dispensary operators was protected by the limited number of licenses in the first round.

Lindsey said he expects that “all or nearly all” of the 75 new dispensary licenses to be awarded in May will go to social equity applicants. Nagib said Illinois will probably have to expand the number and types of licenses available as legalization rolls out if it is to meet social equity goals, not to mention consumer demand. The state projects that 500 licenses will ultimately be issued. But he said workshops for potential minority applicants are demonstrating considerable interest.

Hutchinson also took on Ervin’s complaint that license applicants who wouldn’t qualify themselves for social equity status can score points by hiring a majority of their workforce from individuals with criminal records related to cannabis prohibition. “I wish I could say our only issue is we don’t have business owners,” she said. “That’s not our only issue. We also don’t have jobs.” One report has projected that the state’s cannabis industry will employ 63,000 people by 2025

The new law has “very, very strong equity provisions” to an extent that “greatly exceeds any other state,” said Lindsey. “Illinois has really raised the bar.”

That includes expungement provisions with far greater reach than other states have enacted, along with support for social equity license applicants. The legislation provides for follow-up studies to determine how well social equity goals have been met and whether rules need to be adjusted. And it also dedicates 25% of cannabis revenues to fund programs developed by community organizations to benefit disadvantaged areas.

“What’s been promised is potentially very powerful,” said Rev. Alexander Sharp of Clergy for a New Drug Policy. “We absolutely have to deliver on the social equity promises that have been made.”

Cook County State’s Attorney Kim Foxx got the expungement ball rolling by filing 1,012 petitions to vacate low-level possession convictions, calling it “the first step in the single largest and most equitable piece of criminal justice reform Illinois has ever seen.” According to the Illinois Sentencing Policy Advisory Council, 572,000 cannabis arrest records — involving possession of 30 grams or less — could be eligible for automatic expungement, along with 34,000 convictions. Another 85,000 cases, involving possession of quantities from 30 to 500 grams, could be eligible for pardon; individuals or prosecutors have to file petitions in those cases.

The state’s attorney’s office said it started with “a small batch” of eligible convictions and will be working to scale up the process, starting with nearly 18,000 stand-alone, low-level cannabis convictions dating back to 1956.

The process will take years: the law requires that cases dating from 2013 to 2020 be expunged by January 2021, cases dating to 2000 will be expunged over the following two years, and cases from before 2000 after that. Expungement can lift barriers to employment, housing, student assistance and other benefits.

“Part of what is exciting and important is how [expungement] is being applied retroactively,” said Alysia Tate, director of strategy for Cabrini Green Legal Aid and a former editor and publisher of The Chicago Reporter, which has long assisted people with expungement. “That is a change in criminal justice reform and an example for future clean-slate laws.”

Tate said that Cook County residents who may be eligible for expungement should register their current street or email addresses with the county clerk’s office so they’ll be informed if their records are processed.

Assistance for those who need to petition for pardons is available from legal assistance groups like CGLA, which operates help desks at the Daley Center and the Markham Courthouse, Tate said.

The case for decriminalization

One area where the new law fell short was in reducing prison sentences for cannabis crimes for amounts larger than what’s now been legalized, said Ruddell. “You would think that when you legalize a substance, the penalties would be adjusted to reflect the new understanding of how you’re treating that substance,” he said. Currently, sentences for possession and cultivation of large quantities max out at 15 years. For selling cannabis, sentences can run as high as 30 years.

You need regulatory enforcement of the new system, Ruddell pointed out, but current sentences are ridiculously high — reflecting the kind of thinking that brought us mass incarceration.

Indeed, the state’s legalization of cannabis could mark a turning point in reassessing the war on drugs as a whole. 

“What is really going to end the war on drugs is decriminalization,” said Sharp. He points to a ballot initiative in Oregon that would make possession of any illegal drug a civil offense subject to citation. It would also establish addiction recovery centers across the state, using funds from cannabis sales taxes and savings from reduced spending on prosecution and incarceration. He also points to an effort in Philadelphia to establish the first supervised injection site in the nation

The next step, according to Ruddell, could be passing SB 1971, sponsored by State Sen. Elgie Sims, which would reduce penalties for possession, manufacture, delivery, and trafficking of drugs including cannabis, cocaine, heroin and methamphetamine — following up on recommendations by the 2016 State Commission on Criminal Justice and Sentencing Reform.

“It’s not radical,” said Ruddell, pointing out that 19 states and the federal government have misdemeanor charges for possession of small amounts of drugs. 

“It’s pretty hard to rectify the harms of the war on drugs when the war is still ongoing,” said Ruddell, who also urged consideration of decriminalization.  “We know that the criminal justice system is not serving people who have substance abuse disorders. We know that it’s a health problem and not a criminal justice problem, and we should treat it like that.”