Legalizing Cannabis in Illinois

Illinois just became the 11th state to legalize cannabis, its Legislature succeeding where states like New York and New Jersey have failed. I should know — I had a front seat to the incredible performance of Illinois Representative Kelly Cassidy and Senator Heather Steans.

I joined the Illinois Legislature as a state representative in January 2019 but have known Kelly and Heather for many years. Due to my role in previously developing the Illinois medical cannabis program, they included me in early drafting sessions and strategy meetings to listen to stakeholder perspectives and help with the bureaucratic aspects of cannabis regulations. I have witnessed the development of transformational legislation before, but I have never seen anything like this. Representative Cassidy and Senator Steans (along with a few key staffers and other significant sponsors in the House and Senate) conducted hundreds of meetings, held dozens of town halls, explored every corner of regulations in all other legalized states and methodically marched down the path of legalization.

With the exception of Vermont, every other state that has legalized cannabis did so by ballot initiative. Illinois has no ballot initiative or referendum process, so legislation was the only hope. But drafting legislation is much more complicated than passing a referendum — and the process is much easier to derail.

Abraham Lincoln statue in front of the Illinois State Capital Building in Springfield, Illinois

History

Illinois has come a long way since passing the Compassionate Use of Medical Cannabis Pilot Program Act in 2013 and decriminalizing small possession of cannabis in 2016. The medical cannabis program narrowly passed the House of Representatives in 2013 and remains one of the most restrictive programs in the country — it originally included requirements such as patient fingerprinting and background checks. Decriminalization (also led by Representative Cassidy) was a bipartisan initiative but still endured a veto by former Governor Bruce Rauner, who later signed a modified law.

Senator Steans and Representative Cassidy have introduced draft cannabis legalization bills in the last few years, but everything changed in late 2018 when it became clear the pro-legalization gubernatorial candidate, J.B. Pritzker, was likely to become governor. Pritzker won his election by a large margin, and he immediately staked out legalization as a top legislative priority. Achieving that goal would be easier said than done. Legislative negotiations rode the rollercoaster of the session calendar beginning in January; final components of the bill did not get “locked in” until the last two weeks of May.

Social Equity at the Core

One of the keys to passing this epic legislation was centering all decisions and policies on the basis of social equity — recognizing and attempting to reverse the nearly 80 years of negative community impact from the War on Drugs. As the sponsors were prone to saying, there is no single thing that created this problem, so we should seek to remedy these harms with a variety of strategies.

A social equity program, called the Recover, Reinvest and Renew Program (R3), will be created to promote minority involvement in the cannabis industry, giving participants access to state grants and loans in order to mitigate some of the up-front costs of participating in the market.

The performance-incentive funding program will target underserved communities throughout the state. It will provide planning and implementation of grants as well as technical assistance to collaborative groups and civil legal aids to people in R3 areas. These grants will be bottom-up, not top-down, and driven by community needs.

The legislation commissions a study to identify discrimination in the cannabis industry. The departments responsible for issuing licenses will be required to take the conclusions of the study into consideration when issuing further licenses. This portion will address a failure of the medical program, the lack of meaningful minority ownership and employment.

It is hard to overstate how essential these social equity provisions were to passing this legislation; quite simply, the bill could not have passed without them.

Expungement

Politicians often espouse their commitment to criminal justice reform, but talk is cheap. This legislation includes the most sweeping reforms in Illinois history, providing expungement for hundreds of thousands of Illinoisans living with criminal histories after conviction for minimal possessions of cannabis.

Convictions dealing with amounts of cannabis up to 30 grams will be expunged through the governor’s clemency process, which will be an automatic process.

For amounts of 30 to 500 grams, the state’s attorney or an individual can petition the court to vacate the conviction.

This is a game-changer. For comparison, the only other automatic expungement in the history of Illinois was when the death penalty was abolished and dozens of records were expunged.

Local control in Illinois

Similar to other legalized states, local municipalities will be able to opt out of allowing licensed businesses, and they may enact reasonable zoning ordinances and ordinances for public consumption.

Protecting employers and landlords

As with medical cannabis, employers may maintain a zero drug tolerance workplace under this proposal. Landlords are not required to permit tenants to possess or consume cannabis products on their property.

Next Steps

Governor Pritzker signed the bill on June 25, but government agencies were already busy drafting regulations to implement the law, businesses are preparing expansion plans and New Year’s Eve 2020 will be unlike any other in the history of the state.

Other states on the East Coast considering legalization should pay close attention to where Illinois legislators succeeded in crafting a tightly regulated but social equity-focused law. It is not perfect — no bill ever is — but the determination and integrity of Senators Steans, Toi Hutchinson, Omar Aquino, Jason Barickman and Representatives Cassidy, Jehan Gordon-Booth, Celina Villanueva, David Welter and so many others made this initiative a reality and a model for future legislation in Illinois and across the country.

Bob Morgan is a health care regulatory and policy attorney at Benesch and also serves as a state representative for the 58^th District of Illinois. He was a chief co-sponsor of the state’s legalized adult-use cannabis legislation, which passed in June. Additionally, he was the first project coordinator for the State of Illinois Medical Cannabis Pilot Program.