Overview of Illinois Criminal Law-State and Federal Criminal Defense
Illinois criminal law encompasses a wide range of offenses from the insignificant to the very serious. Criminal offenses are prosecuted by a number of different agencies. Less serious offenses are known as misdemeanor crimes and more serious offenses are felony crimes. Criminal offenses are also classified depending upon whether the criminal offense was a violent or non-violent offense. Illinois criminal defense includes both federal crimes and state offenses.
Most crimes that are committed in Illinois are prosecuted by the state’s attorney’s office. Each of the 102 counties in the State of Illinois has an elected official that runs the county’s office of the state’s attorney. Some of these offices are comprised of the elected state’s attorney and one or two assistants, while Cook County has nearly 1,000 assistant state’s attorneys. The state’s attorney’s office is responsible for prosecuting crimes that occur within the county. As such, state attorney’s offices such as the Cook County State’s Attorney, the Du Page County State’s Attorney, the Lake County State’s Attorney, the Kendall County State’s Attorney, and the Kane County State’s Attorney have primary responsibility to prosecute crimes that occur within their respective counties. These offices handle cases ranging from boating violations, forest preserve violations, traffic violations, misdemeanor offenses such as possession of cannabis, driving while license suspended, retail theft, battery, domestic battery, and DUI to serious felonies such as unlawful use of a weapon, possession of a controlled substance, possession of a stolen motor vehicle, aggravated battery, driving while license revoked, aggravated DUI, robbery, burglary, home invasion, criminal sexual assault and murder. Village prosecutors sometimes prosecute municipal violations.
Aside from the state’s attorney’s offices, the Illinois Attorney General also prosecutes violations of Illinois criminal laws. Typically, the Illinois Attorney General handles more white-collar criminal offenses such as fraud, mortgage fraud, deception, and unfair competition. The Attorney General also prosecutes cases that involve tax fraud such as tax evasion or selling items such as cigarettes without the proper tax stamps. The Illinois Attorney General has jurisdiction to hear violations of Illinois criminal law throughout the State and is not limited by county lines.
The United States Attorney prosecutes violations of federal criminal law. In Illinois, that task is divided among three offices, the Northern District of Illinois, the Central District of Illinois, and the Southern District of Illinois. The Northern District of Illinois is located in Chicago with a branch office in Rockford.
The Criminal Arrest Process in Illinois
The criminal arrest process can be confusing and daunting. Being arrested for a crime or having a loved one arrested can be a life-altering event and the last thing you need to worry about is what to expect next in the criminal arrest process. Although each criminal case is different and the exact arrest process varies depending on the alleged crime committed, the accused’s criminal background, and which prosecuting agency is handling the case a number of general rules do apply to all criminal cases.
Criminal Arrest Process: The Arrest
All criminal cases in Illinois begin with an arrest. The arrest process varies significantly depending upon the nature of the offense. Misdemeanor offenses such as aggravated speeding may not even result in a formal arrest where the driver is handcuffed and taken to the police station. In many traffic violations and almost all municipal violations the arrest consists of a police officer writing a person a ticket. Once the police officer issues the ticket, the driver is able to leave and move on with the remainder of his or her day. More serious offenses will result in a formal arrest and processing at the police station.
Ultimately, how the arrest is conducted is within the discretion of the police officer. Even minor offenses can result in a formal arrest. However, a major factor on how the criminal arrest process proceeds is the nature of the alleged crime. For example, if you are arrested for an Illinois DUI the police officer will likely request that you perform field sobriety tests, take a breathalyzer, or submit to some other form of chemical testing such as a blood or urine draw. An Illinois DUI arrest will also include additional procedures and paperwork to comply with the Illinois DUI laws.
All arrests regardless of the severity of the crime require the police officer to comply with the 4th Amendment to the United States Constitution. The Fourth Amendment requires a police officer to have an arrest warrant prior to arresting someone. The general rule requiring a warrant has many exceptions and warrantless arrests are allowed if it is supported by probable cause. Probable cause is a fluid concept that is analyzed on a case-by-case basis. Probable cause can occur if the police officer personally sees someone committing a crime or after an investigation.
Criminal Arrest Process: Post-Arrest Process
At the police station, the police officer will begin processing the criminal arrest. This booking process will include taking a mug shot and running your fingerprints. The criminal arrest process will take several hours at a minimum. During this time, the police officer will read the Miranda warnings to the arrestee and the officer will attempt to conduct a post-Miranda interview. Miranda warnings are formal admonishments that vary depending upon the arresting agency. However, at a minimum Miranda warnings need to advice the arrested person that he or she has a right to remain silent and a right to have an attorney present during the custodial interrogation.
The next step in the criminal arrest process will depend upon whether the police officer is seeking a felony. A misdemeanor arrest will likely result in the police officer issuing a criminal complaint at the police station and imposing a bond, which can either be an I-bond that does not require anything more than a promise that you will appear at your scheduled court dates or it can be bond that requires depositing cash with the circuit court. The dollar amount that can be imposed is controlled by statute and varies depending the charged offense.
Felony offenses follow a different post-arrest process. In Illinois, police officers are not permitted to charge someone with most felony offenses. Instead, the police officer must first get approval for the felony charges from the state’s attorney. Each state’s attorney’s office has a felony review division that approves or denies felony charges. The state’s attorney’s determination may occur after interviewing the accused, interviewing witnesses, and making an assessment whether the case can be proved beyond a reasonable doubt. The vast majority of cases where felony review rejects the case for felony approval, the police officer will still charge the person with a misdemeanor offense.
If felony charges are approved, the next stage in the arrest process is bond court. The police officer must present the accused to a judge who will impose a bond amount as soon possible. The imposed bond amount can either be a recognizance bond, which is known as an I-bond in Illinois, a deposit bond (D-bond) where 10% of the total bond must be posted, or it can be a cash bond (C-bond) where the total bond amount must be posted before the person is released from pre-trial custody. Cash bonds are rarely used in felony cases.
The bond amount set by the judge will depend upon the nature of the crime, your background, and your flight risk. Once bond is posted the individual is released from custody and the criminal arrest process continues. If the bond amount cannot be posted or if the court imposes a no bail bond then the individual will remain in custody until the end criminal case. Judges issue no bail bonds only in murder cases or where the defendant poses a significant flight risk.
In all cases where the arrest was conducted without a warrant or without a grand jury indictment requires the court to conduct a Gerstein hearing. A Gerstein hearing is a judicially created proceeding to review the police determination that probable cause exists to detain an arrestee. The Gerstein hearing must be conducted within 48 hours of the arrest. Gerstein hearings are typically held immediately before the bond hearing. In all my years as a prosecutor and as an Illinois criminal defense attorney I have never seen a judge not find probable cause after a Gerstein hearing.
Criminal Arrest Process: Charging a Crime
A frequent question that we receive is whether the person can bring charges against someone because they did something to the person. Another common question is whether a person can drop the pending charges against a defendant. The answer to both questions is the same. Individuals do not bring criminal charges against another person nor can they drop or dismiss pending charges. In the American criminal justice system the only entity that is permitted to bring or dismiss criminal charges against a person is the state or federal government.
The government has two ways to bring formal charges against a criminal offender. The government can either proceed by the way of a preliminary hearing or a grand jury indictment. The purpose of the preliminary hearing and the grand jury is the same; to make a determination if probable cause exists that the accused committed a crime. The only difference between the two is how they are conducted. A judge or a magistrate conducts a preliminary hearing and makes the determination whether probable cause exists. Defendants are allowed to be present at the preliminary hearing and a criminal defense attorney can ask questions on the defendants’ behalf. In a grand jury proceeding, the determination of probable cause is made by a grand jury, which is comprised of individuals from the community. The grand jury proceeding is a secret proceeding and the defendant is not present. In most cases, the defendant is unaware that a grand jury proceeding has even taken place. If the judge or grand jury holds that probable cause exists that the defendant committed a crime then the case is bound over to the trial court for further proceedings.
Criminal Arrest Process: Arraignment & Pre-Trial Motions
In the trial court, the criminal process begins in earnest. The first-step in the trial court is the arraignment. At the arraignment hearing, the court will formally announce in open court the charges that have been brought against the defendant by the government. Once the court reads the charges or if the defendant waives the formal reading, the court will ask that you enter a plea to each of the charges that have been filed against you. At the arraignment hearing, your defense attorney will enter a plea of not guilty on your behalf and file a motion for discovery.
The motion for discovery is a formal request to the prosecution demanding that they provide the evidence they have in their position. Many criminal defense attorneys are lazy and do not actually file a written motion for discovery that is detailed and explicit in all the documents that the defendant is requesting and that formally demands that the State preserve evidence that is currently not in its State’s possession. Most times a written discovery motion is not required but if an issue comes up in the future regarding the evidence in the case or the lack thereof, a written motion for discovery is almost always required to preserve the issue for appeal.
Once the prosecution complies with the motion for discovery, the criminal defense attorney will begin the process of reviewing the discovery provided by the prosecutors. This process can involve reviewing a few pages in simple cases to less than a hundred pages for most cases and thousands of pages if the case is complex, involves expert witnesses, or involves medical records. Once the review of the discovery is complete, a criminal defense attorney will conduct an investigation into the case, retain an investigator to interview witnesses, and subpoena documents that are necessary for the defense of the case. The investigation may necessitate filing of other pre-trial motions such as motions to dismiss or motions to quash arrest and suppress evidence.
A motion to quash arrest and suppress evidence is a probable cause hearing that is different than the probable cause hearings that occurred after the criminal arrest. At the hearing on the motion to quash arrest and suppress, the defendant has the burden of persuasion to establish a prima facie case that the defendant’s 4th Amendment were violated. The burden of proof is always with the prosecution. The prosecutors must establish by a preponderance of the evidence that the arresting officer made the arrest or search with probable cause, which requires the prosecution to establish that the officer made the arrest on clearly articulable facts. However, this burden is quite low, the prosecution must only establish that the officer acted on more than a hunch. At the conclusion of any pre-trial motions that the defendant filed, the matter then proceeds to trial.
Criminal Arrest Process: Trial
Once all the pretrial motions are resolved your case is set down for trial. A defendant has a statutory and constitutional right to a speedy trial. A demand for a speedy trial will ensure that you will have a trial sooner than later but it does carry with it risks. For example, a trial court will rarely if ever grant a motion for continuance after a speedy trial demand, which could force the defendant to proceed to trial when witnesses are unavailable. Once a speedy trial demand is entered the prosecution chooses the date of trial without input from the defendant.
All defendants have a right to have a trial by jury or a bench trial. A jury trial is comprised of 6 or 12 people from the community who are chosen by your attorney and the prosecutor. The jury will hear the evidence and decide whether the prosecution has proven their case beyond a reasonable doubt. In a bench trial, a judge hears the evidence and decides whether the prosecution has proven their case. Both jury trials and bench trials have significant pros and cons and which to pursue can only be done after talking to an experienced criminal defense attorney.
At trial, the prosecution has the burden to prove each and every element of the criminal charge beyond a reasonable doubt. The prosecution has the burden to overcome the presumption of innocence that attaches to a criminal defendant. The defendant is absolutely not required to testify or even present a defense to win at trial. At trial, you have a constitutional right not to testify or call any evidence on your behalf. However, to ensure victory your case needs to be properly investigated and the evidence negating your guilt needs to be presented in the most persuasive and effective manner, which only comes from experience actually trying cases to a jury or a bench.
Sentencing Options in Illinois Criminal Cases
The sentencing options available in Illinois criminal cases vary greatly. The sentencing options in Illinois include fines and court supervision all the way up to natural life imprisonment. Illinois has abolished the death penalty. The biggest factor in the sentencing options available in an Illinois criminal case is the classification of the crime. Misdemeanor offenses by definition are punishable by a maximum sentence of 364 in a county jail while felonies are punishable by nothing less than 1-year in prison. However, alternative sentencing options exist for most misdemeanors and felonies that do not involve imprisonment unless mandatory minimum sentencing rules apply.
Felonies are the most serious offense in Illinois. Felonies range from obstruction of justice, aggravated domestic battery, aggravated driving while license suspended, aggravated DUI to white-collar crimes such as fraud, embezzlement, and tax evasion to violent crimes like armed robbery, murder, and criminal sexual assault. In Illinois, the lowest classification of felonies is Class 4 felonies that are punishable by 1-4 years in prison. Class 4 felonies include criminal offenses such as retail theft and possession of low amounts of a controlled substance.
As the severity of the crime increases so does the potential penalties that a court may impose. Aside from Class 4 Felonies, Illinois classifies felonies as Class 3 felonies that are punishable by 2-5 years in prison, Class 2 felonies that are punishable by 3-7 years, Class 1 felonies that are punishable by 4-15 years in prison, and the most severe classification is Class X Felonies, which are punishable by 6-30 years in prison. First-degree murder is its own classification and is punishable by 20-60 years in prison. Regardless of the classification, any person convicted of a felony offense must provide a DNA sample.
Similar to felonies, probation, conditional discharge, and incarceration are valid sentencing options in misdemeanor cases. However, unlike felonies, supervision is only a valid sentencing option in misdemeanor cases. The biggest difference between the sentencing options in felonies and misdemeanors is the severity of the sentence. Most felonies carry with them significant jail time while misdemeanor crimes by definition carry a maximum sentencing option of 1-year in jail. Additionally, misdemeanor offenses are served in a county jail or the Metropolitan Correctional Center while felonies are served in a prison managed by the Illinois Department of Corrections or the Federal Bureau of Prisons.
The least serious misdemeanors offense are classified in Illinois as Class C misdemeanors and they carry at most a jail sentence of 30 days and a maximum fine of $1,500. Class B misdemeanors are the next classification of misdemeanors and they are punishable by 6 months in jail and a fine of $1,500. Finally, the most serious misdemeanors such domestic battery, misdemeanor DUI, driving while license suspended, aggravated speeding, and possession of less than 30 grams of cannabis are Class A misdemeanors. Class A misdemeanors carry with them a maximum sentence of 1-year in jail and a $2,500 fine.
Aside from imprisonment, a court has other sentencing options in criminal cases. In certain cases a court can impose a sentence of court supervision, which would avoid a criminal conviction; conditional discharge; probation; fines; or deferred prosecution. Some felony drug cases and retail theft are eligible for deferred prosecution that if completed successfully will avoid a criminal conviction. The court’s sentence will depend upon many factors such as the nature of the crime, the criminal background of the defendant, and any other factors in aggravation or mitigation that the court deems relevant. However, Illinois courts are not permitted to deviate from the sentencing guidelines created by statute.
Federal Criminal Defense-Difference Between State and Federal Criminal Defense
Federal criminal defense is the same as criminal defense in state court in many respects. The general criminal defense procedure is the same, a law enforcement agency arrests the defendant, the defendant goes through the pre-trial procedure, a trial occurs and if there is a finding of guilty, the defendant is sentenced. However, there are significant differences between defending a criminal case in federal court versus defending a case in state court.
Preliminary Hearings Are Never Used in Federal Court
In state court, many cases are charged through a preliminary hearing where the judge finds probable cause. In federal court, preliminary hearings are never used. In fact, everyone charged in federal court has a constitutional right to be indicted by a grand jury.
Federal Prosecutors Have Less Cases
Federal prosecutors work for the Office of the United States Attorney and they are known as AUSAs. In my experience, the Northern District of Illinois, which has jurisdiction over the Chicago and the surrounding areas, takes only significant cases that fall under federal law. As a direct result, AUSAs tend to have fewer cases allowing them to spend more time on each case. Additionally, federal prosecutors are much more involved during the investigation of the crime than state prosecutors.
Federal Courts Are Less Busy
State courts tend to be very crowded where many cases are set on the court’s docket that are scheduled for hearing or trial on the same day. On the day of court, the assistant state’s attorney decides which cases are going to proceed to a hearing or a trial depending upon which cases are ready for trial and which cases are the oldest. In federal court, there is usually one case set for hearing or trial on any given day.
Federal Sentencing Guidelines
The Federal Sentencing Guidelines and their application to federal criminal cases maybe the single biggest difference between federal criminal law and criminal cases handled in Illinois criminal courts. The Federal Sentencing Guidelines affect every aspect of federal criminal practice. Every criminal attorney practicing federal criminal law must have a thorough understanding of the Federal Sentencing Guidelines and its application and effect on the federal criminal defense case. Anything less may result in disaster that could result in a lengthy federal sentence.
The Federal Sentencing Guidelines were created as a result of the Comprehensive Crime Control Act of 1984. Part of this massive Act was The Sentencing Reform Act of 1984, which created the United States Sentencing Commission. The Sentencing Commission was formed to create the Federal Sentencing Guidelines. Once created, the Federal Sentencing Guidelines applied to every federal district court throughout the country.
On November 1, 1987, the Federal Sentencing Guidelines took effect. However, since their creation the Federal Sentencing Guidelines have been modified and tweaked. For example, the Federal Sentencing Guidelines originally punished crack-cocaine much more severely than powder cocaine but the Guidelines have since been changed to treat cocaine as a single substance regardless of how it is ingested. More recently, the Drug Quantity Table was modified to lessen the sentence of non-violent drug offenders.
What Was the Effect of the Federal Sentencing Guidelines?
The Federal Sentencing Guidelines changed the entire federal criminal system not just federal sentencing. The Federal Sentencing Guidelines affected everything from charging decisions through plea-bargaining, trial, administration of sentences, and even supervision of post-conviction release after a sentence is served. One of the main consequences of the Federal Sentencing Guidelines was to severely curtail the discretion of sentencing judges. Limiting the discretion of judges was a deliberate decision by the Sentencing Commission in an attempt to reduce sentencing disparities between similarly situated people. Whether the stated goal was accomplished is up for debate.
Despite the mandatory nature of the language used by the Federal Sentencing Guidelines, the Federal Sentencing Guidelines are only advisory. As a result, federal sentencing court may impose any sentence that it determines to be “reasonable.” However, despite this federal courts have overwhelmingly defaulted to the sentencing range provided by the Federal Sentencing Guidelines.
The Federal Sentencing Guidelines eliminated the parole system and replaced it with a “real-time” sentencing system. Under the new system, a federal defendant must serve the entirety of the imposed sentence. The only credit available to reduce a federal sentence is good time credits, which can be a maximum of 54 days a year. However, good time credit under the Federal Sentencing Guidelines applies only to federal sentences over one-year.
A sentence of probation is also greatly limited by the Federal Sentencing Guidelines. A federal district court may impose probation only if the sentencing range provided by the Federal Sentencing Guidelines is less than 15 months. Additionally, a federal sentencing court must impose some conditions of confinement, which may include incarceration, intermittent incarceration (including work release), community placement, or home detention if the high-end of the sentencing range is greater than 6 months. The Federal Sentencing Guidelines greatly changed how federal criminal law is practiced. Sentencing in federal cases is very complicated and requires extensive experience to navigate through. In fact, knowing even what sentencing range applies to a person can be a difficult process.
What To Do If You Have Been Arrested for a Criminal Offense?
Being arrested or investigated for a crime is not only a frightening experience but it also could very well impact the rest of your life and the lives of your family. The criminal arrest process is not something that is worth handling yourself or letting an inexperienced attorney handle. Hiring an attorney that knows how the criminal justice system works and one that knows how to work the system to your advantage is the only attorney worth hiring. Sentencing in Illinois criminal courts can be very harsh and it can result in the loss of your freedom for a very long time. Obviously, the best solution is avoiding a conviction in the first place by retaining an experienced criminal defense attorney that has the knowledge and experience to take your case to trial and WIN.
A former prosecutor who knows what it takes to win a case at trial and in the appellate courts leads Jaleel Law P.C. That experience is what can make the difference between enjoying your freedom and sitting in a dingy prison cell for a significant period of time. We are not afraid to fight the prosecutors; after all we used to be one. When experience matters, Jaleel Law P.C. is the Illinois criminal defense lawyers to call.
Learn How to Use Sentence Credits to Reduce a Prison Sentence
Sentence Reduction for Non-Violent Drug Offenders
Federal Sentencing Commission
Search and Seizure Law
Court Supervision in Illinois
What is an Arraignment Hearing?
How Do Bail Bonds Work in Illinois?
The Use of Drug Sniffing Dogs
Probation Violation- Know What You Are Facing
The 4th Amendment