In a consolidated appeal of cases from Cook County and Livingston County in the State of Illinois, the Illinois Supreme Court has recognized the power of a county probation department to offer a probationer "Intermediate sanctions" for a qualifying probation violation. The cases had arisen after the State's Attorneys in both counties had challenged their county probation department's practices, codified in 730 ILCS 5/5-6-4(i).
In a unanimous decision, the Court ruled that the Illinois Unified Code of Corrections (hereinafter, "Code"), "does not afford the circuit court or the, State's Attorney veto power over the decision of a probation officer to offer a probationer intermediate sanctions."
The Cook County case, which involved Defendant Fermin Alberty, involved the revocation of probation, after a probation officer filed a "petition for violation of probation and warrant," alleging various violations. The defendant appealed, and the court, relying upon the case of People v Keller, 399 ILL. App.3d 654 (2010), ruled that the probation office did have the authority to file a petition to revoke probation or supervision, not just the State's Attorney
The Livingston County cases also concerned the relative authority of the probation department and State Attorney’s office in Livingston County, but focused instead on a disagreement between the two departments on the appropriateness of "intermediate sanctions," after the State's Attorney had already filed a Petition to Revoke probation (PTR). The judge in the two Livingston County cases agreed with the probation department and dismissed the PTR, stating that Illinois law was clear that the probation department had the authority to offer "intermediate sanctions," regardless of the position of the State's Attorney. The State's Attorney, according to the decision, had "argued that interpreting 5-6-4(i) (of the Illinois Statutes) as requiring dismissal of the State's petition for revocation would abrogate the authority of the State's Attorney to prosecute violations of probation and thus would violate the doctrine of separation of powers." In a subsequent appeal the Illinois Appellate Court affirmed the trial court on the two Livingston County cases.
The Illinois Supreme Court rejected the separation of powers argument, by noting that "Probation officers are explicitly charged by statute with the duty to 'take charge of and watch over all persons placed on probation,' (730 ILCS 110/12(5) (West 2006), to "preserve complete and accurate records" during the continuance of a probationer's probation... and that the "language of subsection (i) of section 5-6-4 also supports the view that a probation officer may file a petition charging a violation of probation, as the probation officer did here... The separation of powers provision was not designed to achieve a complete divorce among the three branches... of government." People v. Walker, 119 Ill. 2d 465 (1988). "This is hardly the sole instance where a State's Attorney's discretion is circumscribed," the Supreme Court noted.
The court also held that "section 5-6-4(i) does not give a State's Attorney the power to 'veto' a probation officer's decision to offer intermediate sanctions," and affirmed the decision of the appellate courts. See: People v. Casey Hammond, 2011 IL 110044, 959 N.E.2d 29 Ill. (2011).
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Related legal case
People v. Casey Hammond
|Cite||2011 IL 110044, 959 N.E.2d 29 Ill. (2011)|
|Level||State Supreme Court|