State's attorney's new program gives some offenders a second chance
CHAMPAIGN — On Friday, the 13th of April, Daniel Guico, 21, experienced a "life-altering moment."
Maybe it dawned on him as the handcuffs were clicked into place. Could have been during the fingerprinting and taking of his mug shot while being booked. Perhaps it came when his parents didn't answer his phone call from the jail in the middle of the night.
He now knows that his choice to join two other men in breaking into an building on the University of Illinois campus — a decision fueled by alcohol — was definitely the wrong one.
"These instances where you aren't in control of all your actions and just make bad decisions — you shouldn't be punished for the rest of your life for one moment of poor decision-making," said the UI junior.
Lucky for Guico that others in Champaign County's criminal justice system agree.
Guico and two other men arrested with him at 2 a.m. that day — Tyler Buell, 21, and Anil Mohammed, 22, also UI students — are the first to be offered the chance to participate in the Second Chance Felony Diversion Program.
Launched at the beginning of June by State's Attorney Julia Rietz, the program aims to keep nonviolent offenders, mostly those accused of minor property crimes, from being saddled with felony convictions.
"It's a formalization of an informal process we already use," she said, explaining the discretion a prosecutor has to reduce a felony charge to a misdemeanor based on the totality of the circumstances of the crime and the person committing it.
"Say a store cashier sees someone leave a checkbook behind, and rather than be a good citizen and return the checkbook, that person goes to Walmart and buys an Xbox. That's forgery (a felony), but it could be misdemeanor theft.
"Informally, in the past, prosecutors would say, 'If you pay restitution up front, I'll reduce it to a misdemeanor.' Now, more formally, there's a written agreement that says if you do X, Y and Z in a specific time frame, we will reduce the charge to a misdemeanor," she explained.
Among the X, Y and Z are the payment of restitution and a fine, the performance of 25 hours of public service, and sometimes, completion of an online course aimed at correcting the errant behavior through education. For example, the course targeting shoplifters is called "Stoplifting." Courses, which take a few hours, cost $60 but the company will waive or reduce fees based on an individual's ability to pay.
The felony charge remains on file while the defendant works toward the completion of his contract, up to six months. When it's complete, the person can then plead guilty to a reduced misdemeanor charge for conditional discharge or court supervision. Court supervision is the more desirable sentence because the conviction will not be entered on a person's record if the period of supervision is completed without any further trouble. Conditional discharge is a form of probation without reporting regularly to a probation officer but does involve a conviction.
Rietz said she's been thinking about the program for quite a while. There's a similar one in Cook County. And it dovetails with a study now going on by principals in the criminal justice system aimed at avoiding building a larger or new jail.
She estimates that as many as 200 cases a year might be referred to the program. In 2011, her office filed just over 2,100 felony cases and almost 1,400 misdemeanors.
Having a formalized program also means more oversight by other court offices than just hers.
The public service and online programs will be supervised by the court services office as they are now, and any restitution will be paid directly to the circuit clerk. In past similar cases, restitution was paid to the state's attorney's office and forwarded to victims.
"I'm not comfortable being responsible for other people's money," said Rietz, noting the circuit clerk already has a system in place so it won't mean much more work for that office.
The same goes for public service.
Bill May, public service coordinator for the court services department, said if the person was convicted of a felony or a misdemeanor, he'd still have to monitor his or her public service work, so supervising it on the front end of the case rather than at the conclusion makes little difference to him.
May's only difficulty — as has long been the case — is finding enough appropriate not-for-profit programs into which he can funnel clients. Public service workers mow the Harvey Cemetery (also known as the American Legion Cemetery) in Urbana, help with countywide electronics recycling events, repack food at the Eastern Illinois Food Bank, and help at Habitat for Humanity's ReStore — to name a few of the more popular work sites.
"The only thing is, they'll be monitored more closely by a judge," May said.
Judge Richard Klaus has set aside two days a month to hear the cases, and if the person getting the opportunity is motivated, he should have to make a total of three court appearances between crime and punishment.
The first would be arraignment on the felony charge. If the prosecutor offers the program and the defendant accepts, at the second court appearance the judge will spell out what's expected of the defendant, who will have already gone over it with his attorney. Once the terms of the contract are completed, the defendant makes appearance No. 3 to plead to the misdemeanor charge.
Champaign defense attorney Mark Lipton represents Guico, who was arrested for the burglary to the campus building.
The veteran defense attorney handles a lot of cases where alcohol is a factor.
"It's appropriate to avoid felonies for young people who are getting a higher education who do stupid things," he observed, adding that it's in the interest of the defendants in the program to get their requirements done promptly.
If they don't complete them in the allotted time, the state can prosecute the person for a felony.
"I'm going to guess that anybody who doesn't make it and the case goes back to a felony prosecutor, I'll have a hard time convincing the prosecutor to reduce it to a misdemeanor," he said.
Lipton said it's also the right thing to do.
He and Rietz have talked more than once about the fact that even people who have drugs can get first-offender probation, which allows them to escape a felony conviction.
"And if (the drug offender) succeeds, the case is dismissed and five years later, the person can get the record expunged and sealed," he observed.
Public Defender Randy Rosenbaum said it's his understanding of the program that if a defendant meets the eligibility requirements, the state will offer the person the program.
"It doesn't matter how rich they are or who their lawyer is," he said, adding that the goal of reducing felony convictions is "admirable."
But he noted that lawyers can only advise clients about options, not make their decisions for them.
"Some of these people are going to say: 'I'm not guilty, won't take it.' If they win, they win. If they lose, they have a felony," he said, adding that his staff is concerned that the person who turns down the program might be treated differently by the prosecutor.
Rietz agreed that being strapped for money won't preclude participation.
"I will allow my attorneys to negotiate the percentage of restitution that has to be paid up front," she said, adding that defense attorneys may make suggestions to the prosecutors of how best to have their clients complete the requirements. "I do trust my staff to follow my philosophies."
Rietz said that as a general rule, the type of case to qualify for this diversion program is a lower-level property crime.
"People who have had misdemeanor convictions may be eligible. If you're already a convicted felon, as a general rule, no. But in my office there are exceptions to every rule. That's the beauty of the criminal justice system in Illinois," she said.
In general, someone charged with felony driving under the influence wouldn't be eligible unless the felony is based on having an expired driver's license or having failed to pay insurance and the person doesn't have a history of driving without insurance.
"That has always been the situation. As a general rule, we don't reduce felony DUIs to misdemeanors or misdemeanor DUIs to reckless driving (a petty offense). For any DUI, you have to get an alcohol evaluation and do treatment and that's not what this program is designed to address. It's designed to address lower-level property crime situations," she said.
In Guico and company's case, UI police said the only damage done in the break-in was to the door that got kicked open. Police were notified of the break-in fairly quickly by a witness.
Guico said the potential penalties for a burglary conviction — up to a maximum of seven years in prison — were indeed scary. He finds it "terrifying" that his "life is out there for the world to see" on the Internet.
Still, he's grateful for the chance to right his wrong and to avoid having to check the box on a job application that asks if you've ever been convicted of a felony.
He's also learned a little something about his alcohol consumption.
"It definitely taught me how to take control. It reminded me that moderation is not something to be ashamed of," Guico said.