State’s Attorney Program Denies Probable Cause Hearings To Low Level Offenders And Extends Court Supervision

Cook County’s Deferred Prosecution Program has been on display recently. At symposia and public presentations locally and nationwide, State’s Attorney Anita Alvarez has presented the program as a success and as a keystone feature of a smart-on-crime, evidence-based approach to prosecution. However, recent studies of the program dispute its efficacy and seriously call into question the ethics of how the program is structured. It is critical that this program be scrutinized before its rapid expansion this September.

Far from being a source of diversion from the criminal justice system, the Deferred Prosecution program further entangles first-time offenders in the criminal justice system whose cases had a substantial likelihood of being dismissed had their case ever been allowed to go before a judge. The program approaches low-level first-time offenders at a vulnerable time when they’ve recently been in jail and have had no real chance to speak to a defense attorney, and it asks them to waive any probable cause hearing in exchange for a 12-month term of court supervision. In essence, it avoids judicial oversight and treats the accused as guilty in the name of diversion.

Denying Probable Cause Hearings

Throughout Cook County—and the nation overall—there are several types of programs that present alternatives to the standard criminal justice system for those who would have better results from lighter levels of intervention or from programs that guide individuals through drug or mental health treatment. These programs, such as specialty Drug or Mental Health Courts are popular throughout the country and the scholarship around them and their procedures grow year by year. Specialty Courts are typically offered to individuals after they plead guilty, following a determination of probable cause of their case and a discussion with their attorney about the costs and benefits of accepting the program.

The Cook County Deferred Prosecution program, however, does not wait until after a defendant has been given their probable cause hearing. In fact it offers the program before their probable cause hearing on the explicit condition that the defendant will waive their right to that hearing.

The program consists of a year’s worth of court supervision offered to individuals who have no history of violent arrests and no previous felony convictions. If they succeed, the case is dropped and expunged. If they fail, prosecution proceeds but the original probable cause hearing never happens. At the point the defendant is presented with the offer of the program, they have not had time to discuss the likelihood of their case’s dismissal and or have any real input from a defense attorney—typically a public defender who they have not met before. This means that the only person who has exercised any judgment about the case before the defendant is placed under a year’s worth of court supervision, is the arresting officer.

The risk of individuals being placed under this penalty while not having probable cause is substantial. 47% of nonviolent drug possession charges are dismissed at preliminary hearing, meaning there is a nearly a fifty fifty chance that individuals who have been offered deferred prosecution on these charges would have not been in the adult system any longer – at no further cost to the tax payer – if the state’s attorney’s office had allowed their case simply to go to preliminary hearing before going to trial.

Study Shows No Benefit 

A recent study of the Cook County Deferred Prosecution Program done by Loyola University in conjunction with the Illinois Criminal Justice Information Authority found no different in the re-arrest rates of those in the program versus a comparison group of individuals who met the deferred prosecution program eligibility criteria but were instead sentenced to probation (31.4% and 34.6% were re-arrested within 18 months of completing their form of court supervision, respectively). And this does not take into account that many of those who were placed into the Deferred Prosecution program would have been dismissed at preliminary hearing anyway, which would have cost far less to the tax payer, not to mention the individual going through the program.

(George, Orwat, Stemen, Hilvers, Cossyleon, & Chong, Evaluation of the Cook County State’s Attorney’s Office Deferred Prosecution Program, May 13, 2015, Presentation).

Targeting the Least Experienced and Most Vulnerable Population

The last 25 years of empirical research on behavior management and alternative sentencing programs has determined that the level of criminal justice intervention should be matched to the level of risk and need of the individual Mismatches result in higher rates of recidivism and worse outcomes for communities. This means that those who are at the lowest risk of re-offending on their own are better off having little to no interaction with the criminal justice system: incarceration or challenging court supervision only increases their chances for offending. Likewise, the level of drug or mental health treatment services that are offered to individuals should match their actual level of clinical need: connecting people who do not have serious drug dependence issues with seriously addicted groups of heroin addicts, for example, hurts the sobriety of both groups.

The deferred prosecution program specifically targets this low risk, low need population and matches them with a level of intervention that is likely more intense than is appropriate. Only those individuals with no prior felony convictions, and no arrests for violent crimes, are offered the deferred prosecution program—a program no likelier to result in reduced recidivism than straight dismissal, and at a much higher cost to taxpayers.

In the September 2015 the Cook County State’s Attorney’s Office is planning on greatly expand this program to target individuals with more than one drug possession conviction in their history, with the aim of connecting these individuals to drug treatment, but no plan has been put forward to ensure that the individuals being referred actually have drug dependence issues aside from what little can be learned from their current charge.

No risk or needs assessments are used (like those that are used for specialty courts following best practices) before deciding upon the current program. Rather, the level of intervention is based solely on the defendant’s criminal history – a measure that has been repudiated by researchers, including National Drug Court Institute.


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