Bylined Articles

After Legalization: Many Remain Imprisoned For Now-Legal Pot

By Neville M. Bilimoria
July 2019
Chicago Lawyer

Photo of attorney Neville Bilimoria

Neville M. Bilimoria

Imagine for a moment that you are arrested for alcohol possession back when alcohol was illegal. Then, imagine you served a sentence in prison for that possession, perhaps an inordinately severe incarceration sentence. Then imagine that you get out of prison and find it almost impossible to find a job, find housing or obtain a loan due to your criminal record. Then imagine, to make things worse, that alcohol is now legal, yet you are still saddled with this criminal history which leaves you no room for social advancement.

Imagine also that in spite of your lack of chances to obtain a job, that the very illegality you were arrested for not only becomes legal through legislation, but also fosters a burgeoning industry in the prohibited substance, primarily by nondiverse corporate entities and persons. Sounds a little bit like a nightmare, but that is exactly the scenario that is developing around cannabis and medical cannabis across the country.

On May 4, Gov. J.B. Pritzker set forth his plan for legalization of marijuana in Illinois. The first Illinois marijuana legalization bill was sponsored by Sen. Heather Steans, D-Chicago, and eventually, HB 1438, the Cannabis Regulation and Tax Act, was approved on May 31 by both houses of the General Assembly and was signed by Pritzker into law on June 25. Now, effective Jan. 1 , marijuana is legal for recreational use by adults over the age of 21.

Illinois became the 11th state in the country to legalize cannabis for recreational adult use and the first state in the country to have a legislature approve commercial sales. Vermont lawmakers, previously legalized possession, but not yet commercial sales. Approval in other states for recreational cannabis legalization came via voter referendums. But how Illinois passed this monumental legislation is quite extraordinary, and a lesson in effective politics.

Notably, just months earlier, before Pritzker's news conference, the state of New Jersey attempted to legalize marijuana in that state with full support from the governor and most legislators. However, that New Jersey bill never came to pass because of concerns by the black caucus in the New Jersey statehouse. Caucus members claimed that the New Jersey proposal did nothing to rectify past criminal records of predominantly black convicted felons who had trouble finding jobs after their previous marijuana convictions.

The New Jersey black caucus felt that the legalization of marijuana had to focus on social equity issues and to help diverse individuals previously convicted of possession of marijuana in a burgeoning market to legalize marijuana.

Demonstrating his political prowess, Pritzker revealed his details on potential Illinois cannabis legalization. Its cornerstone would revolve around social justice, looking to right past wrongs. Pritzker, perhaps learning from the stalled legalization in New Jersey, notably held his legalization of cannabis news conference at the Black United Fund of Illinois with support of the General Assembly's black caucus.

"Illinois is going to have the most equity-centric law in the nation," Pritzker said. State Sen. Toi Hutchinson, D-Olympia Fields, noted that individuals convicted of low-level marijuana possession cannot get jobs, rental leases or loans. They essentially serve a life sentence, in her words. Pritzker's act would change that by eliminating almost 770,000 low-level marijuana convictions through an expungement process to allow these individuals to lead normal lives on the back of legalized marijuana.

Furthermore, Pritzker, through the act, will offer a plan to provide $12 million in capital loans plus business training available to diverse individuals and businesses looking to ride the legalization wave of marijuana and the business opportunities. If that weren't enough, Pritzker would appoint a marijuana czar to oversee an earmarked fund from proceeds of legalized marijuana to help rebuild disadvantaged communities in Illinois, adding to the social equality element while reaping the rewards of profitable legalization of marijuana in the state.

Whatever your views on marijuana's legalization—and there are opponents out there focusing on the dangers of marijuana addiction, concerns about child habitual use and impaired driving, to name a few - Illinois has certainly set a high standard for marijuana legalization.

Certainly there is a lot of money to be made by marijuana businesses, and state coffers relying on taxation and licensing fees, but certainly the Illinois act attempts to level the playing field and bolster a diverse marijuana business while fostering fiscal responsibility around social equality and social justice.

Neville M. Bilimoria is a partner in the health law practice group at Duane Morris.

Reprinted with permission of Chicago Lawyer.