Illinois Criminal Defense Lawyers for Incarceration

Alternatives to Incarceration

Let us say you are facing serious criminal charges. Obviously, you are worried about the possibility that you will be sentenced to a period of imprisonment in the Illinois Department of Corrections or a period of incarceration in a county jail like the Cook County Department of Corrections. While your worries are indeed legitimate, there are many instances where you may not be sentenced to prison or jail. Judges, when sentencing a person for a crime following either a plea of guilty or a finding of guilty after a trial (which could have been before a jury, or before the Judge -- commonly referred to as a “Bench Trial”), must conduct a sentencing hearing where the Prosecutor presents evidence and information by way of “Aggravation” and the Defense presents evidence and information by way of “Mitigation.” A Judge must weigh the factors in aggravation and mitigation before entering the sentence.

Probation and Conditional Discharge

Except in the most serious of offenses where a prison term is mandatory, in Illinois there is a preference for sentences of probation or conditional discharge. Under Chapter 730, Illinois Compiled Statutes, Section 5/5-6-1(a), except where specifically prohibited by statute, the court shall impose a sentence of probation (or conditional discharge) unless the court finds upon considering the nature and circumstances of the offense and the history, character and condition of the offender, that a sentence of imprisonment (or periodic imprisonment) is required to protect the public or would trivialize the seriousness of the conduct. The difference between Probation and Conditional Discharge is simple: Probation is a higher level of scrutiny in that persons on Conditional Discharge report to a case worker versus reporting to a Probation Officer. Also, persons on Conditional Discharge are not subject to random searches of their homes and personal property as Probationers are. There are other factors that distinguish Probation from Conditional Discharge, but the one thing that they share in common is that you are not in prison!

In Drug Court cases, a court may order imprisonment in combination with probation either concurrently (at the same time) or consecutively (after the incarceration is over) if the court finds it is necessary to address the seriousness of the conduct, or is warranted by the nature of the offender’s background.

Now, let us suppose that due to the nature of the offense, probation or conditional discharge are not allowed by law, which is known as a prohibited disposition. (There are too many to list here, but here are a few examples:

• Delivery of a Controlled Substance, perhaps cocaine, in an amount greater than 5 grams
• Residential Burglary, which is a Class 1 felony, for which, normally, Probation is not an authorized disposition;
• Theft of Property valued at not less than $500,000.00, up to $1,000,000.00;

So, what happens? Must you go to prison or jail? There are a few programs authorized by Illinois state law that allow a court some discretion to minimize the incarceration, and creative judges have found other ways to satisfy a sentence of incarceration without sending the offender to serve a lengthy prison term.

Impact Incarceration/ Boot Camp

Illinois has a program known as "Impact Incarceration", commonly referred to as "Prison Boot Camp." There are also offshoots of this program that are authorized to be run by County Jails, and there are separate statutes authorizing county programs for those counties with a population of 3,000,000 or more and programs for counties with fewer than 3,000,000 inhabitants. The only distinguishing difference between counties under 3 million persons vs. over 3 million persons is this: in counties with less than 3 million people, misdemeanor jail sentences can be given the county "boot camp" as a disposition, whereas in the larger counties only felony prison sentences (except those excluded by law) may be considered for the program.

As for the State Prison program, it works like this: the offender is facing a certain prison term for an offense. The offense is deemed to be one eligible for consideration in the program, and the offender’s history, etc. also renders him eligible for the relief. In order to be eligible for inclusion in the program, an offender must presently meet the following criteria:

• The offender must be no younger than 17 years of age, nor older than 35;
• No prior participation in either IDOC or County "Boot Camp";
• Has not served more than one sentence of imprisonment for a felony as an adult;
• The offense is not a Class X Felony, Murder (1st or 2nd degree), Armed Violence, Aggravated Kidnapping, Criminal Sexual Assault, Aggravated Criminal Sexual Abuse, or a subsequent conviction for Criminal Sexual Abuse, Forcible Detention, Residential Arson, Place of Worship Arson, or Arson;
• The actual prison sentence is 8 years or less;
• Must be "physically able" to handle the rigors of the program, mentally sound, and have consented to the terms and recommendations in the Court’s sentencing order.

If the prison accepts the offender into the program, and the offender completes it successfully, his remaining sentence is commuted and he is released with "time considered served" and he must serve the appropriate term of mandatory supervised release (similar to parole). If he is not accepted, he serves his original sentence minus any and all credit for time actually served, statutory credit, and other "good time/meritorious good time" credit. If he fails the program, he serves the full remainder of his sentence, again less any credit for time served or for good conduct as applicable. Successful completion of the program does not erase a conviction or prison sentence from one’s record, but it does substantially reduce one’s actual time in prison.

The County programs work in a similar way. They have the same acceptance criteria except for the offenses that are eligible: only non-violent, non-forcible Class 2, 3 or 4 felonies may presently partake in the large county programs, although the smaller counties may also include misdemeanors in the program. On felonies in any county, the offender must serve 120-180 days followed by 8 months of mandatory supervised release. On misdemeanors in small counties, the offender must serve at least 7 days for every 30 days of his jail sentence. If his sentence is less than 30 days, the period shall be determined by the court (Although why would anyone opt to do the Boot Camp if their jail sentence is less than 30 days?).

Creative Sentencing Alternatives

The Impact Incarceration Programs all share the commonality of being just like a military "Boot Camp" experience. There is mandatory physical strength and agility training, manual labor, military drills and formation, regimented activities, uniforms, and drug/other counseling where appropriate. The rules are strictly enforced, but early (very early) termination of your sentence is indeed a valuable payoff for all of the hard work and effort.

Aside from the Boot Camp programs, and the general availability of Probation or Conditional Discharge as alternatives to incarceration, a Judge has the power to fashion creative alternatives to incarceration wherever possible. Of course, a Judge is bound by the laws as written, so a mandatory prison term or a mandatory jail sentence cannot be completely ignored. When it comes to a mandatory prison term, the Boot Camp is the alternative most often applied. However, when it comes to felonies that are eligible for a probation sentence but jail time is mandated or contemplated as part of the probation or any misdemeanor involving jail time, there are other alternatives.

Home Detention and Electronic Monitors

For starters, a person can be sentenced to serve their period of incarceration on "Home Detention", with an electronic monitor (such as Lindsay Lohan). Serving your jail sentence while eating a bowl of cereal at your kitchen table, lounging in your den, or being able to go to work and doctor appointments is of course preferable to a jail sentence. Another alternative that judges have used is to allow for time in custody to be served in a secure residential treatment facility for necessary dependency counseling or mental health counseling.

Some Judges have gone so far as to give a veteran or an active soldier, credit for time served in the military on duty as credit for time served in custody, especially where that duty was in a war zone. On paper, they all read as jail time served. Prosecutors know that they can always call it a jail sentence, even though the offender may not have really set foot in the jail. So, both sides get the benefit of the bargain: Prosecutors know that, if a person were to re-offend, they would have already been shown to have served jail time which will affect bond eligibility and sentencing if it comes to that; Defendants that would have gone to jail anyway get the benefit of the “second chance” (or beyond) and are not burdened by the additional incarceration.

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