The Washington Post says more than 1 of every 100 Americans is incarcerated. This is the highest rate of any country. Longer prison terms for drug crimes, and more severe penalties for all types of crimes are partly responsible.
States have gotten tougher by changing the classification of offenses from misdemeanors to felonies. This is true for various traffic offenses. Many jurisdictions have added aggravating factors to change misdemeanor driving under the influence charges to felonies. Often first offenders are felony eligible for getting a DUI without having car insurance or having a license suspended for any reason.
Felonies and Their Impact
A felony differs from a misdemeanor. It is a crime with a possible penalty of a year to life in prison. A felony conviction can cause the loss of civil rights such as voting, ability to own a weapon or to drive. Convicted felons have a difficult time finding employment.
Given the incarceration rate and the life impact, it is important that the government follow specific procedures in prosecuting felonies. It is also important, as many citizens are touched by the procedures that there be an understanding of why someone is punished, how that process works and how criminal cases proceed differently from a a civil lawsuit.
A Prosecutor Must Authorize a Felony Charge
While police can sign complaints to begin prosecution of misdemeanors, they cannot with felonies. If an officer believes a felony has been committed he contacts the prosecuting authority (district attorney, state’s attorney or county attorney). It is the prosecutor, who, upon reviewing evidence and sometimes investigating, authorizes felony prosecution.
With that authorization, an arrest takes place and the accused is brought before a judge. The judge hears the charges and background of the defendant. Also the judge makes a determination if the accused can afford an attorney. If he cannot the judge will appoint counsel for the defendant in accord with his constitutional rights. If the arrest takes place outside the state where the crime took place the arrestee must go through process of extradition.
The judge then sets a bond. If the defendant can post bond he is released, if not he remains in custody while the case is pending.
Preliminary Hearing or Grand Jury Indictment
After the bond hearing the case proceeds in one of two ways:
- Preliminary hearing
- Grand Jury Indictment
A preliminary hearing is held before a judge and the defense may cross examine and present witnesses. A Grand Jury is a secret proceeding and the State presents evidence to jurors without the defense present. In either case, a determination is made as to whether there is probable cause to believe:
- There was a crime.
- A certain individual committed it.
If the answers are yes, the case proceeds. If the answers are no, the case terminates and the defendant is freed. He may be arrested again in the future if further evidence warrants it.
Arraignment, Discovery and Motions
If probable cause is met, the defendant is brought before a judge and arraigned. He is told of the charges and enters a plea. This is usually “not guilty” and the case continues. The defense then sees the state’s evidence through a process known as discovery.
Once discovery is complete, the defense has decisions to make. Should motions be filed? A motion asks a judge to order a specific action be taken. Some motions, such as to Quash Arrest, Suppress a Statement or Evidence, may result in the charges being dismissed. Motions have an effect on if the case will proceed to trial, how a trial is conducted or whether the defendant agrees to plead guilty.
Plea Agreement or Trial
If the Defendant agrees to plead guilty it is by way of an agreement between the prosecutor, the defense lawyer and the defendant. Sometimes, the judge may participate in the agreement. In all instances, the judge must approve the agreement. The agreement determines the penalties imposed on the defendant in return for the guilty plea.
Without an agreement (unless the case is dismissed by way of a motion), a trial is held, and the defendant maintains his plea of not guilty. The state presents evidence to either a judge (bench trial) or a jury. The state must prove the defendant’s guilt beyond a reasonable doubt. It may be proven with circumstantial evidence. If the state fails, the defendant is found not guilty and freed. If the state succeeds, then the defendant will have a penalty imposed by the judge who presided at the trial.
With enhanced penalties, high rates of incarceration and growing number of felony eligible charges general knowledge of the process for our citizens is important. Further information on the process in Illinois can be found in the Felony Fact Sheet.
