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updated: 10/22/2012 3:37 PM

DuPage program gives second chance to first-time offenders

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  • DuPage County State's Attorney Bob Berlin is launching a new program that offers a second chance to some first-time felony offenders.

    DuPage County State's Attorney Bob Berlin is launching a new program that offers a second chance to some first-time felony offenders.
    Daily Herald file photo


Sometimes good people make poor choices -- it shouldn't haunt them the rest of their lives.

That's the thinking behind a new program that allows some first-time offenders in DuPage County to have a felony conviction wiped from their records.

A "pretrial diversion" program was announced last week by State's Attorney Bob Berlin, who said it would free up resources to fight violent crime and do more to rehabilitate low-level felons.

"This is no slap on the wrist," he said. "We're trying to address the underlying problems to keep defendants from re-offending."

In the works since Berlin took office two years ago, the initiative is based on similar efforts in Cook, Kane and McHenry counties, among others, but has a few twists of its own.

Eligible defendants must be first-time offenders charged with nonviolent felonies such as retail theft or forgery, and be referred by their attorney or the state's attorney's office. Candidates are interviewed by a program coordinator, then appear before a citizen panel. In both instances, defendants must explain and take responsibility for their crimes. The panel then makes a recommendation, and Berlin's office decides whether to accept the candidate.

About 20 community volunteers from "all walks of life" will serve on citizen panels that will divvy up cases, Berlin said. Nothing disclosed to them, or during the intake interview, can be used against defendants if they are not accepted.

Successful candidates must plead guilty and comply with conditions outlined on a case-by-case basis. That could include community service, counseling, random drug testing, employment or education, among other options. Any financial restitution is mandatory.

If after a year the defendant has met all expectations, the state's attorney's office will dismiss the charges. Those who don't complete the program proceed to sentencing on the original charge.

"This is really for those offenders who realize they did something stupid and made a bad choice," Berlin said, estimating that roughly 50 people would take part in the program's first year. "It's a win-win for the defendant because the defendant has an opportunity to keep a felony off their record, and research shows high success rates where they don't re-offend. It recognizes that, in certain cases, the traditional way of handling them is not always the best practice."

Applying for the program costs $50, and those accepted pay a nonrefundable $750 fee, which goes to the DuPage County general fund. Some defense attorneys quietly grumbled at the price tag, but Berlin said the program is "not a moneymaker."

"We want it to be tough and meaningful, and we want something held over their heads so they complete the program," he said. "We're not going to take someone who doesn't want to be there."

One factor that differentiates the initiative from similar efforts in other counties, such as Kane where a pretrial diversion program has been in place more than 15 years, is the fact defendants must plead guilty upfront rather than complete the program first.

According to Berlin, Kane County has an 80 percent success rate, and he hopes to do even better. He said his office likely will be filing more felony charges in first-time offender cases, which might otherwise have been charged as misdemeanors. Berlin said this should result in defendants receiving more rehabilitative services than if they had been sentenced to fines or court supervision in a misdemeanor case. It also "allows us to really concentrate and focus on the violent cases."

"We can divert more resources to those cases where the only justice is the penitentiary," Berlin said.

DuPage already has a program that allows some drug offenders to avoid conviction if they receive treatment and comply with court-ordered conditions, so no drug cases will be allowed in the new initiative. Berlin's program also does not apply to DUI cases, low-level felonies involving marijuana and offenses that carry mandatory prison sentences.

Despite those limitations, local defense attorneys for the most part say they're onboard.

"For those who are eligible and who complete the program, it's a good situation," DuPage County Public Defender Jeff York said. "It's hard for us to know how many people we'll have. We will have some eligible, but there are a lot of things that make people not eligible."

Wheaton criminal defense attorney Brent Christensen has some reservations about the citizen panel but said he ultimately supports the idea because "any tool that helps potential clients keep a conviction off their record is a good thing."

"The devil is in the details in several respects," he said. "Whether it's the best idea for a defendant has to be decided on a case-by-case basis. My fear is that people get shunted directly into this program without talking to counsel. They might learn from counsel that if they take the case to trial, there's not proof beyond a reasonable doubt -- and that's another way to keep it off your record."

Defense attorney Jack Donahue, who has offices in Naperville and St. Charles, said several of his clients have had success in Kane County's program and he's "all for it" in DuPage.

"One of the most serious responsibilities that criminal defense lawyers have -- especially with young people -- is to put them in a situation where they don't have a stigma from the criminal justice system that takes opportunities away from them throughout their lives," he said. "Everyone makes mistakes, and you certainly don't want young folks who commit a nonviolent offense like theft and put them in a situation where they're locked out of educational opportunities, jobs, scholarships and everything else."

So far, Berlin said his office has received inquiries about the program but no formal applications. He expects that to change as the word gets out.

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