Second Chance Probation and the Offender Initiative ProgramSecond Chance Probation and the Offender Initiative Program: Time for a Dusting Off?
– Evan J. Winer

This legal article was published in the leading law publication called, “The Docket”and the text of the article is below.

With the recent pronouncement by Lake County State’s Attorney Michael Nerheim of the creation on the Alternative Prosecution, whereby certain nonviolent offenders could have their arrest erased from their permanent record, it is a good time to review two little-known and even lesser-utilized statues that could likewise have defendants avoid having a permanent criminal record: Second Chance Probation (SCB) and the Offender Initiative Program (OIP). While the State’s Attorney’s Office does not intend to utilize these statues in its program, it is still important for criminal defense practitioners to be aware of them should a client not be accepted into the APP but is otherwise eligible for the alternative dispositions offered by SCB and OIP. While similar in many respects and different in others, it must be kept in mind that both statutes have one important proviso in common – they are only available with the consent of the State’s Attorney’s.

The first of these, Second Chance Probation (730 ILCS 5/5-6-3.4) is available to defendants charged with certain probationable, non-violent, non-sex related offenses. Moreover, the defendant must have had no previous felony convictions, probation under Sections 410 of the Illinois Controlled Substances Act, Section 70 of the Methamphetamine Control and Community or Protection Act, or Section 10 of the Cannabis Control Act. Likewise a defendant could not have had “TASC” probation under Article 40 of the Alcoholism and Other Drug Abuse and Dependency Act nor have completed the other statute discussed in this article – the Offender Initiative Program.
The eligible offenses under Second Chance Probation, all of which are either Class 3 or 4 felonies, are as follows:

  • Unlawful Possession of a Controlled Substance (Class 4);
  • Unlawful Possession of Methamphetamine (Class 4);
  • Unlawful Possession of Cannabis (Class 4);
  • Felony Theft (Class 3), where the felony upgrade is based on the value of the property;
  • Felony Theft (Class 4), where the upgrade is based theft from a school, place of worship; or of governmental property;
  • Retail Theft (Class 3), where the upgrade is based on the value of the property;
  • Criminal Damage to Property (Class 4);
  • Criminal Damage to Property (Class 4), where it is government supported property.

If otherwise eligible, and with the consent of the State’s Attorney, the defendant is placed on a minimum period of twenty-four months probation with the following conditions:

  • Not violate any criminal statues of any jurisdiction;
  • Not possess a firearm or dangerous weapon;
  • Pay any restitution;
  • Obtain or attempt to obtain employment;
  • Pay fines and costs;
  • Obtain a high school diploma, GED or vocational training program;
  • Submit to periodic drug testing;
  • Perform 30 hours of community service;

Moreover the court, in its discretion, can order the defendant to undergo medical, psychiatric or rehabilitative treatment, reside in a residential facility and to support his or her dependents.

Procedurally, in order to obtain Second Chance Probation, the defendant must first plead guilty to the offense. However the court does not enter judgment on the finding. If the probation is successfully completed the charge is dismissed and the defendant discharged. However, the disposition is initially considered to be a conviction for the imposition of the conditions of probation and later for appeal purposes. Moreover, if the defendant is convicted for an offense within five years of discharge – which coincides with the waiting period to file a Petition to Expunge – the offense may be used in aggravation in sentencing on the new charge. Likewise, if the defendant violates the conditions of SCP the court – having previously accepted a guilty plea- may enter a judgment of conviction and re-sentence the defendant to whatever punishment the original offense carried.

Given that judgment is not entered and the case dismissed and the defendant discharged upon successful completion, the question arises as to whether the defendant is eligible to expunge or seal a case under SCP and, if so, when. This question is complicated by the fact that a defendant is only eligible once for SCP and, if expunged, such a condition would be unenforceable. Moreover, the five year permissibility to use SCP as aggravation in a future case suggests that the defendant may not be eligible for Expungement, or at least until such time elapses. While the statute on Expungement and Sealing (20 ILCS 2630/5.2) does sets condition for expungement for what it defines as “Qualified Probation” – which explicitly includes the Offender Initiative Program – it is silent as to Second Chance Probation. Nor is SCP ever described as Supervision though, like Supervision, there is a finding of guilt, a sentence imposed but no judgment entered. Yet, the expungement statute allows immediate expungement where the “charge…sought to be expunged resulted in an acquittal, dismissal (emphasis mine), the petitioner’s released without charging, or the reversal or vacation of a conviction… (720ILCS5/2(b)(2)(A)). So it would appear SCP may apply for immediate expungement. Yet it is difficult to imagine the legislature had this in mind when it referred to a dismissal in this context, listed as it is among those cases eligible for expungement as a result of a finding of not guilty or where charges are never even brought. Given this, it is difficult to give clear advice to a practitioner on how to proceed. It may be best to file the petition immediately after dismissal and see how the court rules. And as with TASC probation it may be also advisable to file a Petition to Vacate as soon as the plea is taken, but certainly no later than thirty days after an order of dismissal is entered. Even if denied, this should in no way preclude bringing it back following the imposition of a two, or possibly a five, year waiting period.

Unlike Second Chance Probation, the Offender Initiative Program (720 ILCS 5/5-6-3.3) does not require the defendant to plead guilty, nor is he or she placed on a period of probation. Rather the defendant must waive the preliminary hearing, whereupon the proceedings are suspended for a minimum period of twelve months. The defendant must then comply with conditions which are nearly identical to that of Second Chance Probation. Once successfully completed the charges are dismissed, making the charge eligible for immediate expungement or sealing if otherwise qualified.

It may come as a surprise to even experienced criminal defense practitioners the range and seriousness of the offenses which are eligible for the program, including Class 2 felonies, as long as they are otherwise probationable and non-violent. The charges eligible include:

  • Forgery
  • Burglary
  • Possession of a Stolen Motor Vehicle
  • Possession of Burglary Tools
  • Retail Theft
  • Possession of a Controlled Substance
  • Possession of Methamphetamine
  • Possession of Cannabis

As with Second Chance Probation, the State’s Attorney’s Office must consent to participation in the Offender Initiative Program and the defendant cannot have a previous felony conviction. Nor can the current charge be a violent or sex-related offense, both of which are defined in the statute. The statue also explicitly list a number of other ineligible charges including domestic battery, domestic violence, violation of an order of protection, stalking, hate crime, DUI or any offense involving a firearm or dangerous weapon. Moreover, as with Second Chance Probation, the defendant could not have been adjudicated a delinquent minor for a violent offense, conditions which may be unenforceable were it to have been expunged.

It is worth noting that since the specific offenses for which a defendant is eligible for Second Chance Probation or the Offender Initiative Program are specifically enumerated, it appears redundant for the statue to specify certain charges along with violent and sex-related offenses more generally as ineligible. Yet both statues do so, presumably to emphasize that these alternatives to standard prosecution are explicitly for non-violent offenders without a serious criminal background.

So as the Lake County State’s Attorney’s office gets the Alternative Prosecution Program underway, it is worth keeping in mind that there may be alternatives for those who are not chosen to participate in AAP. In those cases which are otherwise eligible, it may worth dusting off these largely obscure statues and see if they can be put to use.

Evan J. Winer, of the Law Office of Winer & Winer, concentrates in criminal and traffic defense, and municipal prosecution. His office is in Waukegan.