NOTE: This article includes new subject matter to elucidate the impact of the Cannabis Regulation and Tax Act (Public Act 101-0027). When this Act became effective on January 1, 2020, cannabis became legal for recreational possession and use in Illinois.
The Offender Initiative Program
Under Illinois law, a person who is charged with a felony – but has no criminal background – can benefit from a state program that allows for dismissal. The Offender Initiative Program is a new statute modeled after the deferred prosecution program developed by Cook County State’s Attorney Anita Alvarez. This statute took effect in all Illinois counties in 2013.
This deferred prosecution program appears in the criminal code at 730 ILCS 5/5-6-3.3. The statute allows the court to place first-time felony offenders on a special probation that is not a conviction. As long as no conviction is entered, the offender should be eligible to have their criminal record expunged.
However, not every charge will qualify for the program. The general rule is that it must be the defendant’s first felony offense. The offense must be probationable as well. Thus, no Class X felony would be eligible. The felony cannot be a crime of violence, and the offender cannot have a prior offense that was a crime of violence.
The number of felonies eligible for deferred prosecution may increase, but presently, only the following charges are eligible:
- Theft, 720 ILCS 5/16-1.
- Retail theft, 720 ILCS 5/16-25.
- Forgery, 720 ILCS 5/17-3.
- Possession of a stolen motor vehicle, 625 ILCS 5/4-103.
- Burglary, 720 ILCS 5/19-1.
- Possession of burglary tools, 720 ILCS 5/19-2.
- Possession of cannabis, 720 ILCS 550/4.
- Possession of a controlled substance, 720 ILCS 570/402.
- Possession of methamphetamine, 720 ILCS 646/60.
See 730 ILCS 5/5-6-3.3(a-1).
Now that the Cannabis Regulation and Tax Act is Illinois law, there are new rules concerning the unlawful possession of cannabis. Even cannabis became legal for recreational use in 2020, it is still possible to face charges for unlawful possession. If a person exceeds the statutory limits for lawful possession, criminal charges are appropriate. Though the offender may be eligible for deferred prosecution.
A defendant will be excluded for any pending or prior crime of violence, even if it happened when they were a juvenile.
For purposes of this Program, a “violent offense” is any offense where bodily harm was inflicted or where force was used against any person or threatened against any person, any offense involving sexual conduct, sexual penetration, or sexual exploitation, any offense of domestic violence, domestic battery, violation of an order of protection, stalking, hate crime, driving under the influence of drugs or alcohol, and any offense involving the possession of a firearm or dangerous weapon.
See 730 ILCS 5/5-6-3.3(a-2).
The defendant and the State must agree to the deferred prosecution and waive the preliminary hearing. The requirement of approval from the State can be problematic, as certain State’s Attorneys refuse to allow deferred prosecutions as a matter of policy. The court cannot overrule the State. So a county prosecutor who wants to appear tough on crime can refuse to allow it and it will never happen. Or the county probation department may balk at having to spend money on a new program, which may influence the State to refuse.
Assuming the State agrees, the prosecution will be suspended for a minimum period of 12 months. During this time, the judge will hold the defendant to the following requirements:
- Not violate the law.
- Not possess a firearm or dangerous weapon.
- Make restitution to the victim.
- Obtain employment or perform 30 hours of community service.
- Work towards obtaining a GED or obtain vocational training.
See 730 ILCS 5/5-6-3.3(c).
The court also will have discretion to hold the defendant to the following requirements:
- Counseling or psychiatric treatment.
- No illegal drugs.
- Random testing.
- Pay fines, fees and court costs.
- And if a minor, reside with parents or in a foster home, attend school or a youth program, and contribute to the family’s finances.
See 730 ILCS 5/5-6-3.3(d).
If the defendant fails to comply with any applicable requirements, then the prosecution will proceed with arraignment, trial, and, if found guilty, sentencing.
Each offender is eligible for the program only once.