By now most people are aware that Illinois passed sweeping legislation in 2019, which decriminalized cannabis for recreational use. The law also contains provisions to prevent discrimination in certain legal proceedings. But the anti-discrimination provision is not being widely followed by courts – at least not in some parts of the state. To better understand this problem, it’s important to draw on some personal experience. As a former public defender for a rural county in Illinois, I’ve been able to observe first-hand how policy often conflicts with practice. 

Anti-Discrimination in the New Law

Built directly into the new Cannabis Regulation and Tax Act, there is a provision entitled “DISCRIMINATION PROHIBITED.” It can be found at 410 ILCS 705/10-30.  The text of that section states in part:

Neither the presence of cannabinoid components or metabolites in a person’s bodily fluids nor possession of cannabis-related paraphernalia, nor conduct related to the use of cannabis or the participation in cannabis-related activities lawful under this Act by a custodial or noncustodial parent, grandparent, legal guardian, foster parent, or other person charged with the well-being of a child . . .

. . . shall form the sole or primary basis or supporting basis for any action or proceeding by a child welfare agency or in a family or juvenile court, any adverse finding, adverse evidence, or restriction of any right or privilege in a proceeding related to adoption of a child, acting as a foster parent of a child, or a person’s fitness to adopt a child or act as a foster parent of a child, or serve as the basis of any adverse finding, adverse evidence, or restriction of any right of privilege in a proceeding related to guardianship, conservatorship, trusteeship, the execution of a will, or the management of an estate . . .

. . . unless the person’s actions in relation to cannabis created an unreasonable danger to the safety of the minor or otherwise show the person to not be competent as established by clear and convincing evidence. This subsection applies only to conduct protected under this Act.

So, What’s the Problem, Right? 

Well, exactly. The law seems pretty clear to most laypeople who are reading it. The idea is that we do not want people in divorce court or in juvenile court arguing about each other’s cannabis use. Since the substance is entirely legal for personal consumption in the state, it would be unjust and nonsensical if a court could strip someone of parental rights for doing something that could not even result in a traffic ticket. 

Sadly, the unfortunate truth is that judges and DCFS caseworkers are simply unwilling in many instances to follow the plain language of the statute.  Instead, judges commonly fall victim to outdated thinking about drugs, or they carry long-held prejudices about cannabis. This, in turn, results in judges continuing to treat cannabis as an illegal or at least amoral substance abuse problem. Here are a few examples of how cannabis comes up in DCFS court proceedings:

• A parent is forced to undergo months of substance abuse counseling in order to secure the return of her children, simply because DCFS considers her unfit due to cannabis use. 

• A caseworker from DCFS or a contracted agency, like Caritas or Lutheran Children & Family Services, will create a “service plan” for a parent to follow in order to secure the return of their children. They put specific prohibition on cannabis use in the service plan, despite the legalization of the substance and the anti-discrimination language in the law.

• Judges admonish parents that until they stop using cannabis, their children will not come home and that their parental rights could be terminated if they continue, despite plain language in the statute saying that cannabis use cannot even form part of the basis for such a negative determination. 

• DCFS may require a live-in dating partner or spouse to submit to random drug tests and may refuse to allow that person to be around minor children due to cannabis use. 

• In extreme cases, this author has heard caseworkers testify openly in court that the sole reason why a parent was not allowed to have her children for over 6 months or more was her occasional cannabis use at the directions of a physician while not in the presence of her children. 

• In even more extreme examples, this author has represented clients whose primary reason for police and DCFS involvement was possession of cannabis-related items, such as vape pens and smoking pipes, even in the absence of any trace of cannabis on the premises. 

Court Reforms Are Needed

For those leading the fight for cannabis legalization and the removal of the stigma associated with it, these cases hit home. They are a caution to us all that merely passing legislation is not enough.  Appellate advocacy will be needed for years to come in order to enforce the laws once passed.