In the current legislative session, Illinois lawmakers are considering a very important new statute to be added to the criminal code. Senate Bill 3349, proposed by Senator Kwame Raoul (D-Chicago), would create a special type of probation for felonies that can be expunged.
If signed by the governor, a defendant with a pending felony would have the option of being sentenced by the law that was in effect at the time of the offense or the new law.
The newly proposed law would create what is called Offender Initiative Probation. The statute, 730 ILCS 5/5-6-3.3, would create a new type of probation for a felony offense that is not a conviction, and therefore, can be expunged. The only condition is that it must be the defendant’s first felony, and also the defendant cannot be charged with a crime of violence, or have a prior offense that was a crime of violence.
The bill is currently under consideration by the Criminal Law Committee. Senator Raoul is a member of the committee.
Copy Line News Magazine says the program is modeled after an initiative from the Cook County State’s Attorney’s office. The new statute would apply statewide.
The following offenses under the proposed law would qualify for this offender initiative probation:
- Retail theft
- Possession of a stolen motor vehicle
- Possession of burglary tools
- Possession of a controlled substance
- Possession of cannabis
- Possession of methamphetamine
(The new law would also allow the defendant to expunge a felony conviction for prostitution under 720 ILCS 5/11-14(a)).
Both the court and the prosecutor must agree to this type of probation. This may be a very problematic component of the new law. Prosecutors rarely, if ever, agree to a lesser sentence. The fact that the prosecutor can veto this probation means that in counties like DuPage County, no one will qualify for this probation, because the prosecutor would always object. Also, questions remain whether other counties would support the program. For instance, Lake County does not provide TASC probation.
As said, the defendant is not eligible if the felony is a crime of violence, or the defendant has a prior crime of violence. Per the statute, 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.
An offender would be prohibited from receiving offender initiative probation even if a prior crime of violence occurred as a juvenile.
While I encourage the legislature to undertake serious reforms of the state sentencing guidelines, this bill has some major problems.
First, the list of eligible offenses contains some offenses which may be too serious. For example, the offense of burglary is basically breaking and entering. Burglary is a serious crime and involves unauthorized entry into property owned by another person. This may not be the right crime to have expunged. In this respect, the new bill is too lenient. The same can be said about the inclusion of possession of burglary tools. Possession of burglary tools is a premeditated crime. It shows that the defendant engaged in planning and forethought. In this respect, it shows a more serious criminal intent.
Compare that to theft, which can occur without much forethought or premeditation. Theft is an appropriate offense to have in the bill because it can happen in a moment of bad judgment.
Second, the new bill excludes people who have a prior DUI. In this respect, the bill is way too harsh. There is no good reason why person who gets a DUI should be prohibited from receiving the new probation on his or her first felony.
Also, there are other offenses which should be included but were not. For instance, unlawful use of a credit card is a felony, and it should be included. And why not include aggravated driving while license suspended or revoked? Many felony offenders charged with AGG DWLS or AGG DWLR are driving just to get to work and support their families.
All that being said, the bill is a good first step towards reforming the criminal code. The fact of the matter is that one felony offense can ruin a person’s life. That record cannot be expunged or sealed, and this prevents a person who wants to be employed and to contribute to society from doing so.
As of March 22, 2012, the bill is under consideration by the Criminal Law Committee.
An identical house bill, HB 5499, proposed by Representative Kimberly du Buclet (D-Chicago), has also been proposed.
All in all, I commend these lawmakers for their efforts. And given the fact that there is so much give and take in the legislative process, I would accept this bill as it is written rather than have nothing passed all.