On October 1st, the Kane County State's Attorney's Office introduced a new domestic violence diversion program. It is supposedly the first of its kind in Illinois. According to State's Attorney John Barsanti, the program could provide counseling, supervision, and the eventual dismissal of charges for an estimated 180 first-time offenders per year if they successfully complete the program.
Potential diversion candidates must be first-time offenders and must apply for the program within three months of their arrest. In order to be accepted, the alleged battery must not have resulted in medical attention, not have involved a weapon, and not have been eligible to be charged as a felony. If the defendant meets these criteria, and if the alleged victim consents, the defendant could enter the diversion program.
If accepted, the defendant must plead guilty to the charges as they are written, pay $450 in fines, $200 to a domestic violence shelter, and consent to a plenary order of protection. Defendants must undergo counseling, receive medical or substance evaluations if necessary, and after the completion of the program the guilty plea will be vacated. If the program is not completed successfully, the defendant will be sentenced under the domestic battery statute, which is a Class A misdemeanor.
I am not so sure that this is such a good idea for domestic battery defendants. You know why I think that? Because the program was introduced by the STATE'S ATTORNEY'S OFFICE at a PRESS CONFERENCE!!! The State's Attorney's Office does not usually help people who are charged with crimes. And if they did, they wouldn't call in the media to witness it. The State's Attorney's Office is in the business of locking people up. They lock up people without any regard whatsoever to the effect it will have on the family, the costs involved to the county, or any other type of logic. They just want to lock people up.
Defense lawyers should not even think about this program without first considering the possible defenses to the charge. Remember the State must prove the charges beyond a reasonable doubt. The diversion program requires an admission of guilt. You lose the case from day one.
You also need to determine whether the witness is prepared to testify at trial. I think the real reason behind this program is the reluctance of most witnesses/victims to testify at trial. If the State can't produce a witness, they can't secure a conviction. I wish I had access to the statistics, but I believe that many, many more domestic violence cases get dismissed than actually go to trial. Each time that I am in the domestic violence courtroom in Kane County, I see them dismiss at least a dozen cases per day. Maybe one or two actually go to trial.
Take your chances at trial. The State has the burden. Don't roll over on day one and subject your client to a plenary order of protection, anger management, etc., etc., etc. If the State wants to disqualify him or her from the program after several months, they will probably be able to do so. Then your client still gets the conviction after going through a year of court monitoring and aggravation.