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Pot dealers could see records expunged, too, Foxx says as she announces plan to erase thousands of minor convictions

“There will be an entire industry that is set up where people are gonna be able to sell it by the metric ton,” Cook County’s top prosecutor said. “ ... There then has to be some reconciling with those who have had records for selling before.”

Cook County State’s Attorney Kim Foxx announces her pot expungement plan Tuesday, Aug. 27, 2019.
Cook County State’s Attorney Kim Foxx announces her pot expungement plan Tuesday.
Tom Schuba/Sun-Times

Cook County State’s Attorney Kim Foxx announced a sweeping plan Tuesday to automatically expunge tens or hundreds of thousands of minor marijuana cases — but her efforts to reform how her office handles marijuana cases go far beyond petty possession.

In an interview with the Chicago Sun-Times, Foxx said she is also considering wiping clean the records of some convicted weed dealers and individuals caught with more marijuana than will be legally allowed — 30 grams, or just over an ounce — when the prohibition on pot is lifted at the start of next year. Under the pot legalization measure, convictions for possession of up to 500 grams of cannabis and sales of up to 30 grams of marijuana can be cleared, too.

“We certainly recognize … that in Illinois marijuana will be legal — that there will be an entire industry that is set up where people are gonna be able to sell it by the metric ton — [and] that there then has to be some reconciling with those who have had records for selling before,” Foxx said.

“We also recognize that there are those who had amounts that were greater than 30 grams — who may have been involved in sales — who could again be contributors to our society, who could be contributors to our tax base,” she added. “As we recognize it’s now legal, we have to reconcile with them how do we make it all whole.”

During a news conference Tuesday, Foxx said her office has also expanded its diversion programs in an effort to keep some alleged drug dealers out of the criminal justice system.

“What we find is that a lot of these folks who are engaged in sales are not the big kingpins that we’re talking about. They’re people who live in impacted areas where this is a source of their economy,” she said.

Foxx said there’s no clear answer for what should happen to people caught with larger amounts of pot as legalization looms. Prosecutors’ will examine those possession charges on a “case-by-case basis,” she said, adding that their decision-making will be guided by the philosophy they “should be dealing with issues of violence and finding resources outside of the court system for those that don’t pose a threat to public safety.”

Expungement plan takes shape

For now, Foxx’s plan to automatically expunge records will be for those convicted of possessing under 30 grams. Her office is teaming with a San Francisco-based nonprofit, Code for America, to erase “tens of thousands” of minor convictions for cannabis possession, which will be prioritized first. Foxx said her office has already stopped prosecuting these low-level marijuana cases, noting that individuals are either having their cases dismissed or being assigned to the deferred prosecution program, which generally results in charges being dropped after meeting certain conditions.

“As prosecutors who were part of the war on drugs, we were part of a larger ecosystem that believed that in the interest of public safety that these were convictions that were necessary to gain,” Foxx said. “In the benefit of hindsight and looking at the impact of the war on drugs, it is also prosecutors who have to be at the table to ensure that we’re righting the wrongs of the past.”

A person smoking marijuana
Foxx’s plan would automatically expunge records of those caught with less than 30 grams of pot. One gram can be use to make about three joints.
Foto de archivo AP

Under the law passed two months ago, state’s attorneys and the Illinois attorney general can clear convictions in their jurisdictions with court approval, and will not have to go through the Illinois Prisoner Review Board, Foxx’s office said.

Officials estimate 770,000 pot convictions are eligible for expungement in Illinois, the “lion’s share” of which likely come from Cook County, Foxx said.

Cook County convictions — as well as arrests, charges and orders of supervision or qualified probation — of amounts under the new legal limit will be eligible for expungement, as long as a year has passed since the offense happened. Once a record has been wiped clean, the Cook County clerk’s office will mail a notice to the individual’s last known address.

Most recent cases prioritized

The most recent records will be addressed first. Cases from Jan. 1, 2013, to Jan. 1, 2020, will be expunged by 2021, while cases from Jan. 1, 2000, to Dec. 31, 2012, will be cleared by 2023. Any cases from before Jan. 1, 2000, will be expunged by 2025.

Cannabis offenses that are coupled with other offenses or charges aren’t eligible for automatic expungement, Foxx’s office said.

Jennifer Pahlka, Code for America’s founder and executive director, told the Sun-Times the nonprofit will be able to run software that reads criminal records, determines which cases are eligible for expungement and automatically completes forms to be filed with the courts.

So far, the software has been used to identify at least 67,000 pot convictions in four California counties, including San Francisco and Los Angeles, where recreational pot was legalized in 2016. Foxx said Code for America has offered its services at no cost to the county, but taxpayers will have to foot the bill for mailing the notifications and other administrative costs. She couldn’t say how much that would cost but said no additional employees would be necessary.

“In weighing the benefits of this — the ability for people who can have their records vacated and expunged to be able to find employment and housing and other things that will allow them to be contributing, taxpaying members of Cook County — is pretty significant,” Foxx said.

Kevin Sabet, president of Smart Approaches to Marijuana, a Virginia-based advocacy group that opposed marijuana legalization in Illinois and nationwide, raised concerns that Foxx was going too far.

“Reasonable reform should be applauded and diversion programs make sense, but I wouldn’t necessarily tell all the drug dealers in Illinois that it’s open season,” Sabet said. “It seems to defeat the whole purpose of saying you want regulation if you’re not going to enforce any rules.”