AGGRAVATED UNLAWFUL USE OF WEAPONS 1 – 1st OFFENDER PROGRAM

AGGRAVATED UNLAWFUL USE OF WEAPONS 1st OFFENDER PROGRAM “I told someone, it’s like we have the Bulls, pizza and we have guns in the city of Chicago.” That’s not President Trump ripping on our great city, that’s how the Cook County State’s Attorney, Kim Foxx, describes our reputation.   There is no bigger issue in Chicago than gun violence. Everyone is focused on it & how to fix it. But the truth is, we’ve had this debate before. Illinois law toughened its gun laws years ago to try and stop people from illegally carrying guns. Gradually, probation was removed as a possibility for Aggravated UUW offenders, even those with no prior criminal history.   Translation: From 11/1/2012-12/21/2012:, Everyone Illegally in Possession of a Gun: Go to Prison, NO EXCEPTIONS.   The result wasn’t less gun crime, but more offenders, leading to today’s debate. Thankfully, the Illinois legislature recently passed a new program for eligible first time offenders of Aggravated UUW. Effective January 1, 2018, the First Time Weapon Offender Program not only provides for probation, but for the possibility to avoid a conviction. To be eligible:

• • State MUST AGREE;
  • Current Offense not committed during Violent Offense;
  • Be under 21 years old;

 

• No Prior Violent Offense: (conviction/adjudication/probation)

 

• • Bodily harm inflicted or force use/threatened against any person;
  • Possession of a firearm or dangerous weapon offense;
  • Sexual conduct/penetration/exploitation offense;
  • Violation of order of protection/domestic battery/violence.
• Prior completion of program
  • CAN ONLY GET ONCE
• No Existing Order of Protection exists against defendant.

In addition to these eligibility requirements, the new law requires courts to consider certain factors in order to sentence them to this program. Specifically:

• The age, immaturity, or limited mental capacity of the defendant;
• The nature and circumstances of the offense;
• Whether the participation in the program is in the interest of the defendant’s rehabilitation (employment, community involvement, education training, vocational programs).
• Trauma suffered by the defendant (supported by medical documentation).

  These factors will likely become guidelines for determining whether the State will offer the program. Once a defendant is accepted into the program, the statute provides for specific (and apparently mandatory) guidelines & terms of the probation:

• • 18-24 months in length;
  • No new violation of any crimes;
  • No possession of firearm or dangerous weapon;
  • Obtain/attempt to obtain employment;
  • Education-attend courses to obtain/complete:
    • GED/High School equivalency;
    • Vocational Program;
  • No illegal drug use & must submit to testing;
  • Min 50 hours Community Service;
  • Attend Program activities as determined by administrator: such as:
    • Counseling sessions;
    • In person/over the phone check ins;
    • Educational classes;
    • Medical/Psych treatment at direction of Dept. Human Services;
  • Pay all fines and costs;

 

• WEAR A GPS;

• Attend or reside in a facility established for the instruction or residence of defendants on probation.

    Violations of these conditions can result in being kicked out and sent to prison. This is a ONE-TIME DEAL. A prior discharge from the program makes you ineligible. Plus, if you are convicted of a new criminal offense within 5 years from successful completion & discharge of the Aggravated UUW offense, that dismissal/offense is admissible against you in sentencing for the new offense. As you can see, this program ain’t easy. Nor is it exactly clear how some of these mandatory requirements will play out in reality. Will the State of Illinois be providing the facilities “for the instruction” of defendants' probation/program? And where will they be? Do defendants have to wear a GPS for the entire 18-24 months? As with any new program, these issues will be worked out with time.  Though the broad nature of some of these requirements could prove problematic.   Still, the fact that probation is now available is a step in the right direction. While giving probation or a break to gun offenders seems to fly in the face of serious efforts to combat gun violence, recent data suggests that the increased penalization & “lock em up” attitude of the past had minimal effect on public safety.   Despite Illinois following the national downward trend in violent crime in the 2000s, the legislation during that same period eliminated probation as a possibility for UUW-felony offenses. As a result, in 2012, there were 1000X more UUW offenders incarcerated in Illinois Department of Corrections than in 2000. This increase was the result of tougher sentencing and increased use of technical violations for those on parole for UUW. Despite the increase in offenders, gun violence remains a plague on Chicago. This calls into question practical purpose of Agg. UUW sentencing.   The First Offender Program represents the national trend toward rehabilitation before incarceration. The legislators actually wrote out the rationale of the program in the text of the statute. It is refreshing to see that:   “The General Assembly recognizes some persons, particularly young adults in areas of high crime or poverty, may have experienced trauma that contributes to poor decision making skills, and the creation of a diversionary program poses a greater benefit to the community and the person than incarceration.”   Many of our laws could use such empathetic reasoning and logic. However, it could have gone further. Requiring participants to be under 21, as opposed to 21 & under or even 25 & under, or any age limit at all, seems arbitrary when you consider these are 1st time offenders. Furthermore, the strict requirements of the program could be off- putting and impractical. The fact that the Prosecutor has to agree to the program could cause problems for the accessibility of the program and consistency of its application across Illinois. However, as they say, don’t bite the hand that feeds. Any time probation becomes an option where only prison once stood, the scales tip ever further in favor of defendants. A skilled criminal defense attorney knows all the options available for his clients. At Robert Callahan & Associates, we specialize in trial work. We are trial lawyers, first and foremost. And when we do go to trial, our record speaks for itself. But being the best criminal defense attorney is also about keeping up with new developments in the law.  When you're in trouble, you want an expert. You want a firm that knows what the law is and where it is going. You want a criminal defense firm that gives you options. Options give you leverage. Leverage gives you the ability to utilize your rights. From not guilty to not prison.