Avoiding a criminal conviction is one of the most important duties an Illinois criminal lawyer owes his client. This is because, under Illinois law, a conviction bars you from asking a court to destroy your record of arrest, also known as asking a court to "expunge" your record. Given the stigma associated with a criminal conviction and the increased use of background checks by schools and potential employers, this is unacceptable to many people.
The following are some ways to avoid a conviction through the negotiations process. One important note: you get the best deals by negotiating from a position of strength. This means investigating the facts of your case, doing the proper research, and knowing the weaknesses in the accusation against you.
1. Deferred Prosecution. One of the best ways to avoid a conviction and a guilty plea is through an agreement with the government's prosecutor for "deferred prosecution." This typically involves counseling, community service, or continuing education. For example, a person charged with soliciting a prostitute might agree to complete community service and attend health and safety education in exchange for the prosecutor dismissing the case. Once the case is dismissed you may qualify to immediately file a petition before a court to destroy the record of your arrest.
Traditionally, this type of arrangement was only available for misdemeanors. Recently, however, the Cook County State's Attorney unveiled a new Cook County Felony Deferred Prosecution Program. Under this program, non-violent first offenders can avoid a felony conviction if they, among other things, maintain a job, perform community service, stay out of trouble, and, if applicable, make restitution or attend drug treatment.
2. Supervision. Supervision is an agreement available in misdemeanors where the Defendant pleads guilty and agrees to stay out of trouble for a period of time; in exchange, no conviction is entered on your record. Supervision is less desirable than Deferred Prosecution because it requires a guilty plea. Although a guilty plea is not as bad as a conviction, it does require you in most cases to wait 2-5 years before you can petition a court to destroy the record of your arrest.
3. Special Probation. "Probation" usually means a conviction, however, not 710 probation or 410 probation. These are two types of probation where those charged with possession of small amounts of marijuana or controlled substances can avoid a conviction. The condition is that you, among other things, submit to periodic drug testing and perform community service.
4. Treatment as a Drug or Alcohol Addict. Because addiction is a disease, an addict is a victim, and it makes little sense to punish a victim. If you qualify, under the Treatment Alternatives for Safe Communities (TASC) probation, you may attend counseling, undergo periodic drug testing, or even be housed in an inpatient program. If you successfully complete the program you can avoid a conviction.
Although these alternatives to a record of conviction exist, it does not mean you necessarily qualify for them. Even if you do qualify, defendants in Illinois do not have a right of entry into these programs. Rather, it is at the discretion of the court and the government. To get into these programs, it is important to accentuate your positives in dealing with the government. Military service, a sincere desire to make amends, or an otherwise law abiding life provide some ammunition to get you into these programs. Nothing, however, is more powerful than negotiating from a position of strength, and the best way to do this is by finding the weaknesses in the accusation against you.