PRACTICE POINTERS ON SAFE-T ACT PRETRIAL REVOCATION PROCEEDINGS

This post is not meant to be a comprehensive synopsis of the procedures involved in revocation proceedings under the Illinois Pretrial Release Statute, 725 ILCS 5/110-1 et seq. Most of the procedures implicated are readily and clearly delineated in the statute and are apparent to most experienced criminal defense attorneys. What this post will attempt to accomplish is assist practitioners with some possible blind spots involved in the practice of handling revocation proceedings which a practitioner may confront and will not find a ready description or manual for in any statutes handbook.

The revocation hearing represents an obvious emergency for the client as it is a pathway to their permanent detention prior to trial. A judge will expect that you have apprised your client of this as well as other issues that an individual judge may find pertinent to the hearing. Prior to the client physically appearing in front of the judge for the hearing, it would greatly assist counsel to avert possible delays and confusion by apprising the client that they may be asked certain questions to which their response will be integral to the hearing actually proceeding and other collateral issues regarding their detention.

A Judge may ask your client if the client understands the new charges confronting them and whether they have had the opportunity to view any charging documents and the reasons for the violation. If the client doesn’t understand or can’t answer this question that will inevitably fall on defense counsel. It could lead to the case being passed or other embarrassing delays that defense counsel would rather avoid. Therefore, it is imperative that prior to hearing, counsel have an extensive discussion with the client regarding the reasons for the revocation hearing. The client must also be advised of their right to remain silent and whether they wish to proceed to hearing instanter, as the defendant has the right to be represented by counsel and have an opportunity to be heard regarding the violation as well as presenting evidence in mitigation. 725 ILCS 5/110-6(a).

If your client is an undocumented citizen, the court may advise the defendant in open court of their right to have their country’s consular notified of their detention. 725 ILCS 5/103-10(d). It will be prudent to have your client armed with a ready response to this question in order to achieve the optimum result. The consular could in theory be contacted to provide guidance to the defendant. But there could also be immigration-related consequences if the court system is notified of the defendant’s undocumented status. This information could be intercepted by immigration and ICE authorities and lead to the client’s detention and eventual deportation. These factors need to be considered and the client properly advised before proceeding to the revocation hearing.

Also, if the defendant is a parent of young children, the client may be asked if they want DCFS to be contacted to protect the children or if they feel the children are in danger. While no single statute mandates DCFS involvement solely for parental detention, the court may act under its general authority to ensure the welfare of minors, or the State may initiate proceedings under the Abused and Neglected Child Reporting Act (225 ILCS 5/1 et seq.) or the Juvenile Court Act (705 ILCS 405/2-1 et seq.) if it believes the children are without proper care. If there is a prearranged parental plan involving another parent or adult, then that information should be ready beforehand and be made known clearly to the court. The contact name and phone number of the proposed caretaker should be ready to be made available to the court upon request. The alternative of course would be DCFS becoming directly involved with the custody and care of the client’s children via court order.

In counties where prosecution responsibilities are split and shared among official state prosecutors and village prosecutors, the issue of standing to file the petition may be addressed by the court. Specifically, if the State is present at the revocation proceeding but the prosecution of the case is one where the village is entered as the official prosecutor, an issue could arise if a village prosecutor is not in the courtroom. Municipalities are authorized to prosecute violations of penal ordinances as criminal offenses by their corporate attorney, provided the prosecution conforms to the rules of criminal procedure. 65 ILCS 5/1-2-1.1. The State prosecutor may indicate that they have spoken to the village prosecutor and that both sides are in tandem regarding the filing of the revocation petition. The defense may then be asked whether there is any objection to the State proceeding in lieu of the municipal prosecutor. Be advised that if the defense succeeds in the objection, the State will have up to 72 hours to cure any defect, as the revocation hearing must occur within 72 hours of the filing of the petition or the court’s motion. 725 ILCS 5/110-6(a). That will be 3 days where your client will be waiting in jail for a release opportunity as a result of a “successful” objection by the defense.

Upon the filing of a pretrial request to revoke release, the court may opt to proceed immediately to hearing if both sides are ready. In the alternative, the court may revoke the defendant’s pretrial release sua sponte and then ask both sides whether they wish to discuss the issue or proceed to hearing. 725 ILCS 5/110-6(a) (“Upon the filing of a petition or upon motion of the court seeking revocation…”). A brief meeting prior to hearing could be fruitful if the defense believes they can convince the State to withdraw the petition. This could occur based on information available to either side involving uncooperative or unreliable witnesses involving the new case. There are obviously other reasons depending on the facts and circumstances. Additionally, the defense could convince the State to come off revocation and instead agree to a modification of conditions, up to and including, EHM, GPS, SCRAM, and/or Drug Testing. 725 ILCS 5/110-10(b). The State may or may not agree to any of this, but that goal would be a reason to pursue a meeting prior to hearing. Or, the defense could choose to strengthen their argument by adding an agreed sanction, which could include up to 30 days in jail. 725 ILCS 5/110-6(f)(2).

If the case proceeds to hearing, defense counsel should be aware that the court need not grant or deny pretrial revocation. “In lieu of revocation, the court may release the defendant pre-trial, with or without modification of conditions of pretrial release.” 725 ILCS 5/110-6(a). There is a substantial middle ground still available to the court when rendering a decision on a state’s petition to revoke. The court could deny the revocation and instead use its sanctions power as the least restrictive means available. 725 ILCS 5/110-2(a); People v. Vingara, 2023 IL App (5th) 230698. Or the court could be convinced to add additional conditions in lieu of revocation. For example, a defense lawyer could state at the hearing: “Judge, even if you find the State has met its burden regarding the violation, we ask that the court exercise its discretion under 725 ILCS 5/110-6(a). Revocation is the most extreme tool. A modification to electronic monitoring is the ‘least restrictive’ way to address the court’s concerns while allowing my client to keep his job.” Such an argument may be all that stands between your client and losing his or her freedom in its entirety. Other arguments exist, such as asking the Court to issue an admonishment, or to take no action at all. However, the opportunity for those arguments becomes slim to non-existent in the vast majority of revocation proceedings, which typically involves committing a new crime of a Class A misdemeanor level or higher. 725 ILCS 5/110-6(a).

Also be aware in the event that release is an absolute necessity for the client, a final card is on the table where the client decides to plead guilty thereby resolving the petition to revoke simultaneously. If the new charge that triggered the revocation is relatively minor (like a Retail Theft or a Class 4 possession), the lawyers might try to settle everything right there. The Deal: “If my client pleads guilty to the new charge today for ‘time served’ or probation, will you withdraw the revocation petition on the old case?” Or, the Client could also plead guilty to the present case itself. The Result: The client gets the certainty of a closed case and avoids possible drawn-out continuance dates and case litigation where they might have been held for months on the revocation. Again, our work is in the service of the client and our duty is devoted solely to the best of interests of the client, whatever that interest may be.

It is hoped that this information helps apprise even the already seasoned criminal defense practitioner on some additional nuances involving revocation proceedings as they occur in front of different judges and counties employing different styles, methods, and procedures.