Deferred Prosecutions

Deferred Prosecution Attorneys in Chicago

Deferred Prosecutions in Illinois

In Illinois, as in many places, the Courts are kept very busy prosecuting alleged criminal cases. With all of the burdens being placed upon law enforcement, the courts and correctional facilities, the Illinois State Legislators recognized a need to relieve some of the load by creating alternatives to the traditional criminal justice model. Instead of the typical progression of charges, trial or plea, sentencing and then punishment, a creative solution known as deferred prosecution evolved.

Whether a creation authorized by a specific statute, or one born from necessity created by a local prosecutor for use in the local courts, the essence of a deferred prosecution is this: the court continues a case for a set period of time, with a number of conditions being imposed upon the defendant. If the defendant complies with those conditions, the charges are dismissed in their entirety. However, if the defendant fails to comply, he or she is prosecuted fully for the charges, and if found guilty, sentenced accordingly.

Offender Initiative Program

The most common program utilized throughout Illinois is the Offender Initiative Program, as authorized under Chapter 730, Illinois Compiled Statutes, Section 5/5-6-3.3. Upon a successful completion of this program, criminal charges are dismissed in their entirety without a finding of guilt ever being entered. The program is authorized for cases that meet the following criteria:

a) The offender has no prior convictions, probations or conditional discharge sentences for any felony;
b) The current offense is a "probationable" felony theft, retail theft, forgery, possession of a stolen motor vehicle, burglary, possession of burglar tools, possession of cannabis, or possession of a controlled substance or methamphetamine;
c) The offense charged is not a violent offense, those which involve bodily harm to another, force used or threatened against another, sexual conduct, sexual penetration, sexual exploitation, domestic violence, domestic battery, violation of an order of protection, stalking, hate crimes, DUI, unlawful possession of a firearm or dangerous weapon;
d) The offender has no prior adjudications for juvenile delinquency for any violent offense listed above.

Both the State and the defendant must agree to participate in the program before the Court can suspend the proceedings for the program. Both the State and defendant agree to "waive" the Preliminary Examination (or Grand Jury procedure), at which time the Court will suspend the case for at least 12 months. The program involves performing standard conditions: do not violate any laws or statutes of any jurisdiction, do not possess firearms or other dangerous weapons, pay full restitution as applicable, obtain employment, OR perform at least 30 hours of community service. In addition, the court can require you to obtain a GED or vocational training, or obtain medical/psychiatric treatment as needed, to maintain complete abstinence from illicit drug use (other than by doctor prescription), submit to random drug testing, and pay fees/fines/costs as directed.

If the defendant is found to have willfully failed to comply with any of the conditions of the program, then the matter is transferred back to the trial court for arraignment on the original felony charges, to be disposed of on the merits, without the need to obtain a finding of probable cause to do so thanks to the initial waiver. If the defendant does comply with the conditions set forth, then at the end the Court enters an order dismissing the charges in their entirety. This is done without any finding of guilt, and by the statutory model, without any admission of guilt or to facts supporting a finding of guilt. This disposition is favorable for anyone for obvious reasons, but it is even more favorable to a non-citizen, because this form of deferred prosecution does not involve anything that meets the definition of a "conviction" under Federal Immigration laws and regulations, which require a finding of guilt after a trial, a plea of guilty or "nolo contendere" (no contest), or any admission to facts that could support a finding of guilt.

Application of Program to Misdemeanors

As stated above, this program was instituted by statute, and it only applies to non-violent, probationable, felony offenses. As to misdemeanors, many jurisdictions have taken this model and have applied it to certain nonviolent offenses. While the rules may differ from one county to another, the basic premise holds: successful completion means dismissal of the charges. Be advised, some jurisdictions, for participation in their program, require a stipulation to the facts alleged in the complaint so that if you fail the program, they can enter a finding of guilty against you without the need for a full blown trial, on the strength of your admission. If you are a noncitizen, as stated above, this type of deferred prosecution would be of little value to you, as your stipulation of fact could be used as a "conviction" for immigration purposes, even though the actual charges were dismissed upon a successful completion of the program. In the jurisdictions where no such stipulations are required, the deferred prosecution program may be the best gift an otherwise guilty person could hope to receive.

Drug Court and Hybrid Programs

There are other programs in Illinois that are hybrids of a deferred prosecution/prosecution on the merits. Drug Court, as authorized under 730 ILCS 166/1, et. seq., and the Veteran’s Court, under Section 167-1 et. seq., are two such programs. Essentially, both of these programs address the specific needs of persons that suffer from substance abuse/dependency issues, or mental health issues related to military service, and can either serve as special forms of probation that constitute convictions on one’s record. But the special attention and facilities dedicated towards rehabilitation make the program attractive, or they can serve as forms of deferred prosecution, where the charges are dismissed at the end if completed satisfactorily. These programs cannot be applied to anyone:

a) Accused of a crime of violence;
b) That denies their addiction or abuse of illicit drugs;
c) That is unwilling to participate; or
d) Convicted of a crime of violence within 10 years of the current offense, excluding time served in custody.

Crimes of violence as detailed in the statutes include: Murder (1st or 2nd degree), Predatory Criminal Sexual Assault of a Child, Aggravated Criminal Sexual Assault, Criminal Sexual Assault, Armed Robbery, Aggravated Arson, Arson, Kidnapping, Aggravated Kidnapping, Aggravated Battery/Great Bodily Harm or permanent disability, Stalking, Aggravated Stalking, or any crime involving the discharge of a firearm.

In the above matters, a defendant may be placed on the program with or without the consent of the State’s Attorney. In some instances however, a defendant may only be placed in the program with the specific agreement of the prosecutor: any Class 2 Felony or greater alleged violation of Sections 401, 401.1, 405 or 405.2 of the Controlled Substances Act, Sections 5, 5.1, or 5.2 of the Cannabis Control Act, or anyone that has had at least three (3) prior involvements with the Drug Court Program (applies only to the drug court program).

Mental Health Court

There is also a comparable program for mentally ill persons, the Mental Health Court, authorized under Section 168-1 et. seq. With some differences, regarding eligibility and conditions of the program, the outcome is still the same; either termination of a probationary sentence, or dismissal of a deferred prosecution.

Deferred Judgement

Deferred prosecutions are not to be confused with deferred judgments. The main difference between the two is this: in a deferred prosecution, you have not been found guilty of any offense, and in most cases, no admission of facts has been made, so you still retain the ability to defend charges at trial if you fail the program. With deferred judgments, such as court supervision, probation under Section 410 of the Controlled Substances Act, probation under Section10 of the Cannabis Control Act, probation under Section 70 of the Methamphetamine Control and Community Protection Act, TASC probation, or Second Chance Probation, you are found guilty, whether upon a plea or after a trial, and the court withholds entering a judgment of conviction in favor of completion of conditions.

At the end, if all is well, the probation is terminated, and the case is dismissed as if you were not found guilty (but, in fact, you were earlier). No judgment of conviction was entered, and successful completion of a deferred judgment sentence cannot be the basis to deny you anything to which you might otherwise be entitled to by law (driving privileges, etc.). If you are a citizen, a deferred judgment is of little concern, but for noncitizens, a deferred judgment has the same negative impact on one’s immigration Status as a full blown conviction, as they involve that finding of guilt.

Call an Experienced Chicago Criminal/Traffic Attorney Today

If you are charged with a crime, you need a knowledgeable attorney that will aggressively defend your interests in court such as the Chicago criminal defense lawyers at Mitchell S. Sexner & Associates LLC. We are dedicated to fight for your rights, your good name, and your freedom. Call us today to schedule a confidential, no obligation, absolutely free initial consultation at (800) 996-4824.

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Written by Mitchell S. Sexner Last Updated : April 22, 2023