NOTE: This article was updated to reflect 2019 changes to Illinois law with passage of Public Act 101-593. This change became effective on December 4, 2019, updating various statutes addressing marijuana and related offenses.
A person with no experience in the criminal justice system will see that the courts make a distinction between felony and misdemeanor cases. In almost every courthouse in Illinois, felony cases are heard by a judge who hears only felony matters. The judge presiding over felony cases is usually a Circuit Judge. These judges are elected and considered to be senior to Associate Circuit Judges.
The law in Illinois says that a felony offense has a penalty of incarceration for one year or more. By contrast, a misdemeanor offense has a potential penalty of imprisonment for less than one year.
The most important difference between felonies and misdemeanors, in my opinion, concerns the minimum sentence available. On misdemeanor charges, the judge is permitted under the law to sentence the offender to court supervision instead of confinement.
Supervision
Supervision is a special type of probation. Court supervision is not a conviction. Instead, supervision is like a deferred prosecution. The defendant pleads guilty, and the court sentences them. However, the court defers entering a judgment against them. The case is continued for a period of time in which the defendant must not violate the law.
If the defendant complies, the charge is dismissed, and the record of court supervision can be expunged. Additionally, the defendant can truthfully say during supervision and afterward that they have not been convicted of a crime.
Felony Charges
On felony charges, the minimum sentence is a conviction. It is a permanent criminal record that can never be expunged. What is more, a felony conviction generally cannot be sealed, either.
There is no supervision for felony charges. As a result, even a first offense will result in a permanent record. A person with no criminal background charged with a misdemeanor may have a chance of getting out of case without a record. A person with no criminal history who is charged with and convicted of a felony, however, cannot escape a conviction.
This is one of the reasons that felony courtrooms seem to operate so differently.
There are some offenses on the books in Illinois that, even though they are felonies, they allow the defendant to avoid a conviction.
For example, possession of cannabis with intent to deliver can be a felony offense. See 720 ILCS 550/5. This offense is often referred to as possession with intent, featuring both misdemeanor and felony versions. Possession of 10 grams or less with intent to deliver is typically a misdemeanor offense. Beyond the 10-gram threshold, it is a felony crime. For example, if the offender possesses 10-30 grams of cannabis with intent to deliver, it is a Class 4 felony. The sentencing range for this offense is 1-3 years in the Department of Corrections.
Depending on the type and quality in question, possession of a controlled substance can be a Class 4 felony also. See 720 ILCS 570/402. The penalties include 1-3 years prison and up to $25,000 in fines.
A person who is charged with any of these felonies may be eligible for what is, in effect, court supervision. The Illinois lawmakers got it right with the statutes concerning substance abuse. Our lawmakers recognized that addiction requires special treatment.
Felony cannabis and controlled substance cases can result in what is called Section 10/410 probation. For cannabis cases, it is 550/10 probation, while controlled substances have 570/410 probation.
This type of probation is analogous to supervision in that it results in a deferred judgment. The court does not enter a judgment against the defendant. As long as the defendant obeys the law and abides by the rules and regulations of probation, the court will dismiss the charge against them.
There are additional offenses that the Illinois General Assembly should consider for this type of special type of probation. For instance, writing a bad check is a felony offense depending on the value of the check. See 720 ILCS 5/17-3 (forgery) and 720 ILCS 5/17-1 (deceptive practices).
While some counties have a bad check diversion program, such as Cook County, most do not. This means that someone with no criminal record whatsoever who writes a bad check can end up with a felony conviction.
Using a credit or debit card that belongs to another person will also result in felony offense. See 720 ILCS 5/17-35. For example, unlawful use of a credit card (UUCC) is a Class 4 felony, punishable as described previously.
Consider a situation in which a person uses a credit or debit card belonging to someone else to make a small purchase. If a person uses that card to purchase any item – even something worth as little as $0.01 – it is still a felony.
On the other hand, a person who steals $0.01 in physical money will face misdemeanor charges. And more importantly, there is probably no police officer in the state of Illinois interested in arresting someone for stealing $0.01. But according to the law in Illinois, unlawful use of credit or debit card, regardless of amount, is a felony. The state legislature should pass a law reducing the penalties for this offense.