Alternative Sentencing and Deferred Prosecution Programs

It’s not surprising at all that most of our criminal clients here at Mitchell S. Sexner & Associates LLC are concerned with two very common and important questions: 1) Can my lawyer keep me out of jail? and 2) If at all possible, can my lawyer avoid a “conviction” on my record so that it doesn’t interfere with my future employment and life in general? A deferred prosecution program or a post plea alternative sentencing program are both great ways to get charges dismissed or avoid jail when you’ve been charged with a crime.

What’s the Difference Between Deferred & Alternative Programs?

A deferred prosecution program or agreement results in the dismissal of the charges upon completion. It can either be through an established program or through an informal agreement with the prosecutor. Whether it’s a formal program or an informal agreement depends on the nature of the charge, the county, and the prosecutor. There are also post plea alternative sentencing programs. They’re called that because a plea of guilty is required as a condition of acceptance into the program. The plea of guilty is usually vacated upon successful completion of the program. These programs are sometimes called “specialty courts” or “problem-solving courts.”

What Programs Might be Available to Me?

Alternative Sentencing and Deferred Prosecution programs vary widely across the state of Illinois! They’re often different from county to county, and sometimes even different within the same county from district to district. Below, we’ve assembled a list of these special programs for our clients and others who are interested in learning about them. Keep in mind that the types of programs that are offered in any particular county often change from time to time, so although a program listed below may be offered today, available programs may change later. Here are some of the most popular programs offered in the Northern portion of Illinois in the Counties of Cook, Lake, DuPage, Kane and McHenry counties:

Cook County Deferred Prosecution Programs

Cook County has several deferred prosecution programs. Cook County’s deferred prosecution programs include Drug Deferred Prosecution Program, Chicago Prostitution and Trafficking Intervention Court, Supporting Education & Employment Development, Fitness Diversion Triage program, Restorative Justice Community Court, Felony Deferred Prosecution Program, and Misdemeanor Deferred Prosecution Program. Many Cook County deferred prosecution programs require that you must not have been charged with a violent crime and that you don’t have a violent criminal background. A violent crime is generally considered to be:

• “A felony in which force or threat of force was used against the victim”
• A sex crime
• Child pornography, posting identifying or graphic information on a porn site or possessing graphic information with pornographic material,
• Domestic battery or stalking
• A violation of an Order of Protection, Civil No Contact Order, or a Stalking No Contact Order
• Any misdemeanor which results in death or great bodily harm
• Involuntary manslaughter, reckless homicide, or a DUI involving personal injury or death

Drug Deferred Prosecution Program

Drug Deferred Prosecution Program (DDPP) is a deferred prosecution program for Class 4 drug possession, Class 4 cannabis possession, or Class 4 cannabis possession with intent to manufacture or deliver cases.

You’re NOT eligible for DDPP if:

1. You’ve been charged with a violent crime or have a violent felony conviction, although you may have prior nonviolent convictions and still be eligible for DDPP
2. There are indicia of drug sales. An example of indicia would be a scale used to measure the weight of drugs
3. You can’t have been the subject of a search warrant
4. Your current case is the basis of a violation of bail bond or violation of probation
5. You’ve been offered DDPP before

Upon admission into the DDPP program, you’re given approximately 45 days to complete the program. DDPP requires you to undergo a substance abuse assessment through an approved provider and then have a follow-up consultation. If you successfully complete the assessment and follow-up within the timeframe, the charge(s) are typically dismissed on the return date.

Chicago Prostitution and Trafficking Intervention Court

Chicago Prostitution and Trafficking Intervention Court (CPTIC) is a deferred prosecution program for misdemeanor prostitution offenses that occur within the City of Chicago. You may also be eligible for the program if you’ve been charged with offenses relating to prostitution like soliciting a ride or soliciting employment or business from an occupant of a vehicle. You may be eligible for the program more than once. Having a violent criminal background may make you ineligible for the program though. The program requires you to complete all recommended treatment which may include counseling for trauma and substance abuse treatment.

Supporting Education & Employment Development

Supporting Education & Employment Development (SEED) is a new deferred prosecution program that was established in 2021. It’s a 13 month program for 18-26 year-olds that have been charged with drug dealing crimes. The program focuses on providing educational services, cognitive and behavioral counseling, and acquiring employment.

You may be eligible if:

1. You’re 18-26 years old
2. You have a nonviolent background
3. You’re charged with either Class 2 or Class 3 delivery of a controlled substance or possession of a controlled substance with intent to deliver
4. You’re charged with Class 3 or Class 4 delivery of cannabis or possession of cannabis with intent to deliver

Fitness Diversion Triage Program

The Fitness Diversion Triage Program was established for Branch 23, 29, and 43 courts in Cook County. The program requires a mental health assessment and treatment. The program is only available for misdemeanor charges. The program does allow repeat admissions.

You may be eligible if:

1. You’re charged with a misdemeanor and the case is in Branch 23, 29, or 43
2. There are signs of a “serious mental illness”
3. The complaining witness consents to the program
4. You have a nonviolent background

Restorative Justice Community Court

The Restorative Justice Community Court (RJCC) focuses on “restorative justice.” RJCC utilizes peace circles. In a peace circle, the defendant, the person harmed, and community members create a collaborative “Repair of Harm Agreement.” The agreement is a document that lays out the requirements that the group feels is necessary to repair the harm caused by the offense. The requirements could include job training, mentoring, education, a mental health assessment, or a drug assessment. RJCC requires the consent and participation of the complaining witness.

You may be eligible for RJCC if:

1. You live in North Lawndale, Englewood, or Avondale
2. You’re 18-26 years-old
3. You’re charged with a nonviolent crime and don’t have a violent criminal background

Misdemeanor Deferred Prosecution Program

The Cook County Misdemeanor Deferred Prosecution Program (MDPP) is a deferred prosecution program for individuals that have housing or behavior health needs or veterans. It connects the individual with housing assistance providers, mental health providers, or Jesse Brown VA for assessment and services. MDDP requires the approval of the complaining witness.

You may be eligible for MDDP if:

1. You need housing assistance, behavioral health services, or are a veteran
2. You aren’t charged with a violent crime or weapons charge
3. You have a nonviolent background

Felony Deferred Prosecution Program

The Cook County Felony Deferred Prosecution Program (Branch 9) is a 12 month program that focuses on community service, education, and restitution. If you’re accepted into the program, the case is transferred to the Branch 9 court. Branch 9 requires the consent of the complaining witness.

You may be eligible if:

1. You’re charged with a felony
2. You don’t have prior felony convictions
3. You’re not charged with a violent crime, weapon offense, or DUI

Lake County Deferred Prosecution Programs

Misdemeanor Alternative Prosecution Program

The Lake County misdemeanor alternative prosecution program is a 6 month deferred prosecution program. While there is no fee to enroll into the program, there may be court costs that are assessed. The defendant typically needs to apply on the arraignment date or first pretrial date. If accepted, the State’s Attorney will provide the defendant with the conditions of the deferred prosecution program, which can include community service and other terms. Lake County’s program requires that the defendant plead guilty. That plea is vacated at the end of the 6 months if you’ve complied with the terms of the deferred prosecution program.

Lake County Alternative Prosecution Program

Lake County’s alternative prosecution program is for felonies. There is an application fee and additional fees may be assessed depending on the conditions of the program. For example, fees are assessed if drug testing is required. The program is approximately a year long. The defendant typically needs to apply on the arraignment date or first court date.

You are ineligible for the program if:

1. You have a prior conviction
2. You’ve had a prior 410 or 550/10 probation
3. You’re on supervision, probation, or conditional discharge for a juvenile offense, or supervision as an adult
4. You’re an “active gang member”
5. You’re charged with a violent, domestic, sex offense, or a crime against a child or an elderly person, a form of arson other than 720 ILCS 5/20-1(a)(1), a delivery of a controlled substance or intent to deliver a controlled substance, identity theft, stalking or a hate crime, traffic or DUI offense, a weapon crime, or a non-probational offense
6. You’ve committed an offense while on bond
7. Previously participated in a Lake County specialty court program or a first offender program from another jurisdiction
8. Currently under an Order of Protection
9. Not a resident of Lake County

A State’s Attorney administrator will review the application. If the defendant meets all the requirements and the administrator doesn’t reject the application, the administrator will schedule a date for the applicants to appear before a panel of citizens.

The defendant will be required to explain what occurred and accept responsibility. The panel will then make a recommendation to the State’s Attorney, and if the panel recommends acceptance into the program, the panel will also suggest requirements and expectations for the program. The State will then review the panel’s recommendations. If the State accepts the application, the defendant will sign an agreement and plead guilty on the next court date.

During the course of the program, the defendant will be expected to meet with the State’s Attorney at least three times, appear in court for a review hearing, and complete an exit interview with the panel. The plea is vacated upon successful completion of the program and the charge(s) are dismissed.

DuPage County Deferred Prosecution Programs

Misdemeanor Deferred Prosecution

DuPage County doesn’t have a misdemeanor deferred prosecution program. However, some local prosecutors may be willing to offer deferred prosecution depending on the crime you’re charged with.

Pre-Trial Diversion Program

DuPage County’s Pre-Trial Diversion Program is the deferred prosecution program for felonies. There is an application fee and an additional fee if you’re accepted into the program. Additional fees may be assessed. The program requires a referral within 90 days of the defendant’s arrest.

You are ineligible for the program if:

1. You have a prior conviction or adult felony arrest
2. You’re currently on probation, supervision, or conditional discharge for a misdemeanor or felony
3. You’re an “active gang member”
4. You’re charged with a violent, domestic, or sex offense, a crime against a child or elderly person, a drug or alcohol related offense, a weapon crime, identity theft, a traffic offense, or a non-probationable offense
5. You committed an offense while on bond
6. You’re in the United States unlawfully

The program coordinator will conduct an intake interview. If the coordinator doesn’t reject the defendant’s application, the defendant will be scheduled to appear in front of a panel of citizens. The defendant will need to explain the charge to the panel and accept responsibility. The panel will make a recommendation to the State’s Attorney. The State’s Attorney reviews the recommendation and decides whether to accept the defendant. If accepted, the defendant will sign an agreement and enter a plea of guilty. Upon successful completion of the program, the plea will be vacated, and the charge(s) are dismissed.

McHenry County Deferred Prosecution Programs

Deferred Prosecution Program

McHenry County has a deferred prosecution program that encompasses misdemeanors and felonies. It used to be called the “First Offender Program.” The program has now been changed to the “Deferred Prosecution Program” and is no longer limited to first time defendants. There is a fee if you’re admitted into the program and additional fees may be assessed.

You are “generally not eligible” if any of these conditions apply:

1. You’re currently on probation, supervision, or conditional discharge for a misdemeanor or felony offense, even if it’s a juvenile case
2. You’re an “active gang member”
3. You’re charged with a Class X or 1 felony, sex crime, identity theft, weapons crime, offense against an elderly person, a non-probational offense, domestic crime, stalking, drug offense (including cannabis), DUI, or a violation of an Order of Protection
4. You’re charged with a violent offense. A violent offense that doesn’t involve “great bodily harm or death,” may be considered with the consent of the victim
5. You’re charged with a traffic offense. If the traffic offense accompanies another charge, the traffic offense will need to be resolved separately
6. You committed an offense while on bond

In order to apply, you’ll need to complete a referral form. The program coordinator will then review the referral form. If the referral is accepted, the program coordinator will schedule the defendant a date with a citizens’ panel. Similar to some of the other counties, the panel will make a recommendation. The State’s Attorney will then review the recommendation and decide whether to admit the defendant into the program. If accepted, the defendant will sign an agreement and plead guilty. The plea is vacated upon completion of the program and the charges are dismissed.

Domestic Violence Deferred Prosecution Program

McHenry County’s Domestic Violence Deferred Prosecution Program (DVDPP) is very similar to McHenry’s deferred prosecution program. The application process is the same. There is an application fee if you’re accepted and there may be additional program fees. The eligibility criteria are the same, except that only domestic offenses are eligible. Defendants will typically complete counseling, which may include partner abuse counseling, marital counseling, substance abuse treatment, psychological counseling, or anger management counseling. There also may be other conditions such as community service. Upon completion of the program, the charge(s) will be dismissed.

Kane County Deferred Prosecution Programs

Deferred Prosecution Program

The Kane County Deferred Prosecution Program is for misdemeanors and felonies. There are program fees if you’re accepted. It requires a referral. It uses a panel of citizens. If it’s a misdemeanor, the panel step is skipped.

You’re ineligible if:

1. You have a prior juvenile or adult conviction or felony arrest
2. You’re on probation or supervision for a misdemeanor or felony
3. You’re an “active gang member”
4. You’re charged with a Class X or Class 1 felony, sex crime, violent offense, weapon crime, stealing $10,000 or more from a public or government agency, identity theft, filing a false police report, crime against an elderly or disabled person, DUI or traffic offense, or a non-probationable offense

Upon acceptance into the program, a plea of guilty is made. That plea is vacated at the end of the program and the charge(s) are dismissed.

Misdemeanor Drug & Alcohol Deferred Prosecution Program

The Misdemeanor Drug & Alcohol Deferred Prosecution Program is only for misdemeanor drug and alcohol charges. There is an application fee if you’re admitted into the program, and program fees for alcohol and/or drug testing. A referral is required. The program is 6 months long.

You’re ineligible if:

1. You’re charged with DUI
2. You have a prior juvenile or adult conviction or felony arrest
3. You’re currently on probation or supervision for a misdemeanor or felony
4. You’re an “active gang member”
5. You have a prior supervision for alcohol or drug charges

If the referral is accepted, you’ll do an intake interview with the program coordinator. After the intake, the application will be reviewed by the State’s Attorney. If the application is accepted, you’ll be asked to complete a 6 month program which includes random drug testing and drug/alcohol counseling. The charge(s) are dismissed after completion of the program.

Domestic Violence Deferred Prosecution Program

Kane’s Domestic Violence Deferred Prosecution Program requires an offer from the State’s Attorney. There are program fees if you’re accepted. The program is 1 year long. An offer is typically made on or before the first court date. You’ll be required to pay any applicable program fees. In order to be considered for the program, an application must be submitted within three months of the arrest. Following the offer, the defendant will complete an intake interview with a case manager. A case manager will also contact the victim and police department as part of the application process.

The State’s Attorney will review the application. If accepted, you may be asked to complete counseling and give restitution to the victim. Upon completion of the program, the charge(s) are dismissed and the plea of guilty is vacated.

Prostitution/Solicitation Deferred Prosecution Program

The Prostitution/Solicitation Deferred Prosecution Program is a deferred prosecution program for people charged with prostitution or solicitation. There are program fees if you’re accepted.

You’re ineligible if:

1. You have a juvenile or adult conviction or a felony arrest
2. You’re on supervision or probation for a misdemeanor or felony
3. You’re an “Active gang member”
4. You’re a registered sex offender
5. You have a prior supervision for prostitution, solicitation, or a similar charge

The program requires a referral. If the referral is accepted, there’s an intake interview. After the intake, the case gets reviewed by the State’s Attorney. If you are accepted and complete the program, the charge(s) are dismissed.

Post Plea Alternative Sentencing Programs

Post plea alternative sentencing programs are established through state law. The different post plea alternative sentencing programs are Drug Treatment Court, Mental Health Court, and Veterans Treatment Court. Cook County also has its own post plea sentencing program for Chicago felonies. It’s called Access to Community Treatment. Upon successful completion of a post plea alternative sentencing program, the charge is either dismissed or time is considered served. If you fail to comply with any of the terms of the program, the judge can impose sanctions or even discharge you from the program.

Grounds for sanctions or discharge include failure to perform satisfactorily in the program, not benefitting from the program, criminal conduct, or a violation of the terms and conditions of the program. A sanction might be the judge simply calling out your behavior in court, increased reporting frequency, increased drug testing frequency, or even being held in jail custody. If you’re discharged, you could be resentenced on the original charge(s) or the State might proceed on a violation of probation.

Each of the post plea alternative sentencing programs requires that you haven’t been charged with a crime of violence and haven’t been convicted of a crime of violence within the last 10 years. A crime of violence for the purpose of eligibility includes: first degree murder, predatory criminal sexual assault of a child, second degree murder, criminal sexual assault, aggravated criminal sexual assault, aggravated arson, armed robbery, aggravated kidnaping, arson, aggravated battery resulting in great bodily harm or permanent disability, kidnaping, aggravated stalking, stalking, or any offense involving the discharge of a firearm.

Drug Treatment Court

Drug Treatment Court is an alternative sentencing program for people charged with drug crimes. Drug Treatment Court involves regular drug tests and substance abuse treatment. In order to be eligible for Drug Treatment Court, certain conditions must be met.

You must be charged with a drug crime and none of these conditions must apply:

1. You’re charged with a crime of violence
2. You’re denying your drug use or addiction to drugs
3. You don’t want to participate in a drug treatment program
4. You’ve been convicted of a crime violence within the past 10 years. This doesn’t include time spent incarcerated

You can’t be admitted into Drug Treatment Court without the agreement of the prosecutor if you’ve completed, been discharged, or been terminated from a Drug Treatment Court program at least 3 times or if you’re charged with a Class 2 felony or greater violation of:

1. Section 401, 401.1, 405, or 405.2 of the Illinois Controlled Substances Act. Section 401 concerning the manufacture, delivery, or the possession with intent to manufacture or deliver a controlled substance. Section 401.1 is about the trafficking of controlled substances. Section 405 regulates criminal drug conspiracies and 405.2 concerns criminal drug conspiracies involving gang conduct
2. Section 5, 5.1, or 5.2 of the Cannabis Control Act. Section 5 concerns the manufacture, delivery, or the possession with intent to manufacture or deliver cannabis. Section 5.1 regulates cannabis trafficking. Section 5.2 prohibits the delivery of cannabis on school grounds
3. Section 15, 20, 25, 30, 35, 40, 45, 50, 55, 56, or 65 of the Methamphetamine Control and Community Protection Act. These sections prohibit the possession, manufacture, delivery, trafficking, and possession with the intent to manufacture or deliver methamphetamine

In some cases, a Drug Treatment Court program may require inpatient treatment or intensive outpatient treatment.

Mental Health Court

Mental Health Court is an alternative sentencing program when the defendant has a mental health diagnosis. It requires a mental health evaluation in order to get into the program. The purpose of mental health court is to treat the underlying mental health condition(s) that may have led to the arrest. Mental Health Court generally requires admission of an existing mental health condition and a desire for treatment. The charge(s) must be eligible for probation.

You are ineligible for Mental Health Court if one of the following conditions apply:

1. You’ve been charged with a crime of violence
2. You’ve been convicted of a crime of violence within the last 10 years
3. You don’t want to participate in mental health treatment

Mental Health Court may also require the use of medication. If the mental health team believes that you need medication, it is generally made a condition of entry into the program. Medication can be modified throughout the program, but you must be in compliance with the mental health team’s recommendations. Mental Health Court also may have drug treatment or drug testing as part of the mental health treatment plan. In some cases, a Mental Heath Court program may require inpatient treatment or intensive outpatient treatment.

Veterans Treatment Court

Veterans Treatment Court is an alternative sentencing program for servicemembers, or veterans charged with crimes. The charge(s) must be eligible for probation. You’ll be required to undergo a mental health and drug and alcohol assessment. Veterans Treatment Court is focused on treating drug, alcohol, or mental health issues. In order to be eligible, you must be a “servicemember” or a “veteran.” A servicemember is defined as a person that is currently serving in the Army, Air Force, Marines, Navy, Coast Guard, or National Guard. A servicemember either be on active duty or on reserve status. A veteran is defined as a person who served in the “active military, naval, or air service” who wasn’t dishonorably discharged.

You’re ineligible for Veterans Treatment Court if:

1. You’ve been charged with a crime of violence
2. You’ve been convicted of a crime violence within the past 10 years
3. You don’t want to participate in a treatment program

Access to Community Treatment

Access to Community Treatment (ACT) is a program unique to Cook County. It’s only offered for felony cases in Chicago. It’s an 18 month intensive probation program. The program is designed to treat the participant’s “criminogenic and behavior health needs in a community setting.”

You may be eligible if:

1. You’re charged with a drug crime, burglary, or theft
2. Illinois law permits the offense to be eligible for a post plea alternative sentencing program
3. You’ve had 1 or more IDOC sentences, or 2 prior felony conviction in the past 5 years, or 3 prior felony convictions
4. It’s been determined that you have a substance use disorder
5. The victim consents to you being accepted into the program

The disqualifying criteria is the same as Drug Treatment Court. Upon successful completion of ACT or a different post plea alternative sentencing program, the charges will either be dismissed, or time will be considered served.

Creative Solutions to Serious Legal Problems

The legal team at Mitchell S. Sexner & Associates LLC prides itself on seeking creative solutions to what are often very serious legal issues with long-term effects. Alternative sentencing and deferred prosecution programs have slowly been gaining traction in Illinois over the last couple decades and more such programs are available than ever before. These programs recognize the immense value in treating offenders so that they can become contributing members of society, rather than simply punishing and imprisoning them. You can contact Mitchell S. Sexner & Associates LLC at (312) 644-0444 to explore is such options are available to you.