Settlement Options in Illinois Criminal Cases
Almost every successful criminal defense in Illinois ends in one of two ways. You either beat the case at trial or make a good deal with the judge or prosecutor. This article deals with that second possibility, deal-making, also known as settling your case or entering a negotiated agreement.
Whether your goal is keeping your record clear, not wanting to admit guilt, avoiding jail or simply getting the case dismissed in the quickest way possible, deal making is a low-cost tactic with great potential...and also, great risk. The right deal can achieve success in your case without the risk, cost and time of fighting it out at a trial. The wrong one can hinder you the rest of your life, limiting your career options and radically altering your destiny for the worse. This is especially true if you are an immigrant, work for a company that does background checks or you plan on entering a "sensitive" career in the future, like law, medicine, finance or law enforcement.
A "good" deal can take many forms. It can be an agreement to totally dismiss your case, reduce charges to a less serious offense or avoid a permanent mark on your record. In exchange, you will be required to do something; what this "something" is varies depending on the case and what you decide. It could be drug treatment, anger management class, community service1 or restitution2 to name just a few possibilities.
Is a good deal possible in your case? As with anything in criminal law, the answer is that it depends. Below is a list of four factors I have found to be the best predictors of whether a favorable settlement is likely in an Illinois criminal case:
Exposing Weaknesses in the Case Leads to Better Deals
Your Personal Background Can Help or Hurt Your Settlement Options
Types of Cases That Get The Best Deals
- Location of Courthouse and Courtroom Influences Deal Options
I. Exposing Weaknesses in the Case Leads to Better Deals
A criminal defense lawyer should never enter a case with the expectation that he will "plead it out". This approach will result in the worst deals imaginable because it puts the client in a position where he must depend solely on the mercy and "goodwill" of the judge and prosecutor.
Rather, dealing from a position of strength by finding and using weaknesses in your case is the number one rule of effective negotiations in criminal matters. The great thing about finding these weaknesses is that, not only do they apply to misdemeanors and felonies, they can be used to beat your case in the event that negotiations fail. For more, read my guide on the power of early investigation in criminal cases.
These hidden treasures take many forms. A traffic stop that did not follow constitutional rules, a videotape showing you acted in self-defense, arrests in your accuser's background and eyewitnesses who can testify that the sex was consensual are just a few real-world examples.
Example: Julian is at a bar with his girlfriend when Andre says something nasty to her. Julian and Andre argue and it quickly escalates to a fight. Julian is arrested, charged with misdemeanor battery under section 5/12-3 of the Illinois Criminal Code and a court date is set for a month later.
Courthouse research finds that Andre recently pled guilty to aggravated assault and felony theft. Andre's theft can be used to discredit his credibility while his prior aggravated assault can show that he is violent, supporting Julian's self-defense argument. Proof of these arrests may convince the prosecutor to drop the case or reduce charges.
II. Your Personal Background Can Help or Hurt Your Settlement Options
Telling the story of you as a person is crucial to effective deal-making in both Misdemeanors and Felonies.
Your criminal attorney should thoroughly explore you as a person in order to take advantage of negotiation opportunities. Details about your personal history and life situation are the puzzle pieces of "You" that help judges and prosecutors see a human being rather than just another file. This in turn vastly increases the likelihood of a favorable settlement in your case.
For example, what type of person are you? Are you a veteran? Do you volunteer? Are you involved in church? Are you in school? Do you suffer from a history of physical or emotional abuse? Would you benefit from expert help in substance abuse or counseling? Are you a working parent supporting children? What does your boss, pastor, family, teacher and clergy have to say about you?
In most cases a physical mitigation packet can communicate positive aspects about you more effectively than mere talk. For example, it's one thing to say "my client served in the military." It's another to provide the judge or prosecutor with your DD Form 214 showing your deployment history, awards and honorable discharge status.
Your background and history can also hurt you3. For example, criminal defendants in Illinois who have previously been arrested, or worse, pled guilty to a crime, generally receive less favorable offers than those with a clean background. This is especially true if you have previously been arrested for the same crime you are now facing.
Example: Daniel gets into an argument with his girlfriend Gwen. Things get heated, Daniel loses his temper and shoves Gwen. Gwen calls police and Daniel is arrested for Domestic Battery under section 5/12-3.2 of the Illinois criminal code.
At court, the prosecutor pulls Daniel's criminal background and sees that he was arrested for Domestic Battery two years ago, although the case was dismissed. Because Daniel is accused of the exact charges he was arrested for two years ago, a favorable agreement with the prosecutor is not likely and Daniel should prepare to fight the charges.
III. Types of Cases That Get the Best Deals
Misdemeanors are generally better candidates for negotiating agreements than felonies. But even some felonies can be dismissed pursuant to a negotiated agreement. Felony drug possession, for example, is often seen as a condition to be treated rather than punished. Even aggravated unlawful use of a weapon cases are becoming good candidates for a deal that reduces charges. It used to be that any offense involving a gun, especially in Chicago, automatically meant one year mandatory jail time. Recently, however, I have seen great success in reducing charges by effectively presenting the story of the client as a person. Providing character references, military records, documentary proof of the client's charitable involvement and academic performance can help accomplish this.
Generally, any type of case with a victimless crime is a better candidate for success through negotiations than crimes involving a victim. For example, drug possession and prostitution are both types of cases where no person is present in court claiming to have been harmed by your actions. Conversely, crimes involving a victim, such as battery, are not the best candidates for settlement because there is a live person in court pointing their finger at you. That person is like the prosecutor's client, so the prosecutor is less likely to do something that would upset them, like agreeing to a favorable settlement.
Some charges have county-specific programs that exist specifically to rehabilitate the alleged offender without punishing them. These programs are often specific to the county and city in which your case is in. In Cook County, for example, theft school is a program specifically designed to address the psychological motivations behind retail theft. If the prosecutor agrees and you successfully finish the program, you can get the retail theft case totally dismissed without pleading guilty. Cook County cases have a similar program for felony drug possession called drug school.
And these charge-specific programs are not limited to Cook County; DuPage County, for example, has a program for non-violent offenders charged with a felony. If you get into this program, you can prevent a felony conviction on your record.
A full list of these programs is too long to go into detail here, but their existence should be noted and exploited whenever possible.
Finally, some charges have statutorily specific options authorizing the dismissal of the case by law. For example, under the Cannabis Control Act, 720 ILCS 550/10, a first time-offender may qualify for a special 24 month "probation". Under the terms of this probation, if successfully completed, no judgment of guilt is entered. A similar law exists under the Illinois Controlled Substance Act, 720 ILCS 570/410, as well as for those addicted to drugs under the Alcoholism and Other Drug Abuse and Dependency Act, 20 ILCS 301/1-1.
Again, the list of law-specific settlement options is too long to list here, but their existence should be known and used whenever possible.
IV. Location of Courthouse and Courtroom Influences Deal Options
The physical location of your case has a strong influence on whether you can accomplish your goals through negotiations. The county, courthouse and even the courtroom your case is in all have an enormous influence on whether a good negotiated settlement of your case is likely or even possible.
Each county has it's own state's attorney who dictates their office's policy on whether and when to negotiate agreements. And even courthouses within the same county are headed by their own deputy state's attorney who sets the tone for that building's deal-making policy. Finally, each courtroom is managed by a front-line prosecutor and governed by a judge. These players ultimately have the most influence on whether you will settle your case favorably or must fight it out. Indeed, judges have the power to reject any agreement you enter into with prosecutors and impose their own sentence.4
There is not much you can do about the county your case is in, but what about the courtroom? Illinois law allows the Defendant to file one, and sometimes two, motions to substitute judges.5 This crucial safety valve can get you out of a "bad" courtroom, but it means nothing unless you know the temperament of the judge governing your case, as well as the other possible rooms you could be sent to.
Whether you are forced to beat the case at trial or want to settle it quickly with the best deal possible, negotiations will at some point come into play. And when they do, it is vital that they be conducted from a position of strength using the tactics and strategy outlined above.
For more confidential information on settlement options in your case, contact me online or call me at 312.396.4112.
- Community service is governed by 730 ILCS 5/5-1-18.1, 5/5-6-3(b)(9); 745 ILCS 10/6A-101
- Restitution is governed by 730 ILCS 5/5-5-6.
- Although meant for purposes of sentencing, the mitigating factors found in 730 ILCS 5/5-5-3.1 and the aggravating factors found in 730 ILCS 5/5-5-3.1 are good guides as to what aspects of your background and the case are relevant in negotiations.
- Illinois Supreme Court Rule 402(d) gives judges the power to accept or reject a an agreement between the defendant and prosecutor.
- The procedure for substituting judges is outlined in 725 ILCS 5/114-5. Note that strict time limits apply to substituting judges.