Amongst the ongoing clamor and chaos of the November 2020 election cycle lies one tea leaf whose message is unmistakable: the majority of Americans are ready to move on from criminalized cannabis. Arizona, New Jersey, Montana, and South Dakota became the latest states to embrace recreational cannabis, bringing the total number to 15. Nowhere in the United States did a pro-cannabis ballot measure fail to pass. It’s difficult to think of a shift in the tide of public opinion more steady and predictable over recent years than the rejection of old-school criminal cannabis prohibition.

Although the Illinois Cannabis Regulation and Tax Act of 2019 brought recreational adult-use cannabis to Illinois, its failure to eliminate the evils of prohibition has left the promise of cannabis reform unfulfilled. Rather than repealing or softening existing criminal penalties for minor cannabis use and possession, the new law stretches a tightrope over those existing penalties and invites adults over 21 to enjoy their pot out on the tightrope. One slip, and the user drops smack into the old, harsh, pre-legalization criminal cannabis laws. In other words, a minor violation of the new law carries a harsher penalty than a minor violation of the old law.

An example for illustration. The new law permits adults to legally possess up to 30 grams of cannabis. Prior to the new law taking effect, possession of 10 grams or less of cannabis was punishable by a small civil fine between $100 and $200, the penalty for 10-30 grams was a Class B misdemeanor, 30-100 grams a Class A misdemeanor, 100-500 grams a Class 4 felony, and so on. Under this old system, possession of a few grams more than the legal limit of zero grams incurred a small civil fine. Under the new law, however, possession of a few grams over the legal limit—say, 32 grams—is not punishable by a small civil fine, but by a Class A misdemeanor and up to a year in jail. The new law, instead of softening the penalties, essentially declares that the penalties don’t apply so long as you walk the tightrope of the new law’s requirements.¹ Put another way, the new law provides a shield against the old criminal cannabis laws, but that shield materializes only in the presence of complete compliance with the strictures of the new law. Anything short of complete compliance means no shield, and full exposure to the harshness of the old penalties.

Exceeding your 30-gram limit is not the only sin that will deprive you of any protection from the old criminal cannabis penalties. The old penalties apply in full force if your cannabis is located in an accessible area of a motor vehicle, merely possessed on the grounds of a school (including high schools), used in a place that can be observed by others (for example, a private balcony or backyard), or transferred in any amount to any person (so much for passing around the joint). These acts are not only exempted from what the new law allows, their commission voids all protections of the Illinois Cannabis Regulation and Tax Act of 2019, flinging the just-barely criminal back into the dark ages of cannabis criminalization, where he is to be punished as if cannabis reform never happened.   

Illinois’ new cannabis regime fails to recognize that slight deviations from the law should incur proportionately slight penalties. In 2019, the General Assembly decided that the existing boundary lines were too restrictive, so it expanded the permissible field of play. But by neglecting to adjust the penalties to match the new field of play, stepping out of bounds at the margins is now a much bigger deal than it was prior to the change. This reflects a failure on the part of lawmakers to appreciate the meaning of meaningful cannabis reform.

Popular support for cannabis reform is about much more than simply providing an accommodation for adults who want to get high—it’s a recognition that cannabis and the criminal law should not be so intertwined. The General Assembly should stop treating cannabis and the criminal law as two warring interest groups. Handing a victory to cannabis does not require handing an in-kind victory to the criminal law in the form of harsher penalties at the margins. It’s not a zero-sum game. Meaningful cannabis reform begins with the recognition that personal cannabis use and possession need not be a criminal issue. Cannabis is not the bogeyman that Richard Nixon or Nancy Reagan thought it was. With each election cycle that goes by, more and more Americans sign onto this belief (67 percent of Americans support legalization, according to a Pew Research poll conducted this time last year). That’s the real trend in public opinion throughout the country, and Illinois should continue being a trend-setter by revisiting the way it penalizes violations at the margins of its cannabis laws.

Evan Bruno is an attorney in private practice at Bruno Law Offices, LLC, in Urbana, concentrating in criminal defense.