How are state's attorneys and judges handling cases for possession of small amounts of cannabis that are pending after the new cannabis decriminalization law took effect?

Peoria lawyer Jeffrey R. Hall, one of the drafters of the law, summarizes his experience in the October Illinois Bar Journal.

"The issues revolve around the interpretation of the Statute on Statutes under 5 ILCS 70/4 as it applies a law that repeals or changes the sentence or punishment of a statute," Hall writes. "When a criminal case is pending while a statute is repealed or amended, one must ask whether the change to the statute was substantive (changing the elements of a crime) or procedural (changing or mitigating a sentence).

"With SB 2228's decriminalization of possession of less than 10 grams of cannabis and drug paraphernalia, the legislature made a procedural amendment by changing the severity of the sentence as well as the category of offense," Hall writes. "No longer is possession a criminal act. It is now a civil violation with 'civil fees,' since cannabis possession is still 'unlawful' for all intents and purposes."

What does this mean? "Under 5 ILCS 70/4, '[i]f any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect,'" Hall writes. "Thus, you should ask the court to 1) re-admonish your client about the new civil violations (between a $100 and $200 total fine and costs according to the statute, though the Illinois Supreme Court implemented new rules on September 1 directing courts to assess a $120 total fine under Rules 580 to 584). See http://www.illinoiscourts.gov/SupremeCourt/Rules/Amend/2016/090116.pdf. You should also 2) serve on the court and the state a 'Notice of Election' that your client elects to be sentenced under the new penalties listed in SB 2228. Under 5 ILCS 70/4, the defendant can choose the old or new punishment."