Summary of the Problem:  Offenders who are not charged with very serious offenses, such as a predatory crime, a crime involving substantial violence, a crime in which the defendant played a leadership role in large scale drug trafficking, or a crime of equivalent gravity, should be eligible for community placement, and for community-based treatment programs, diversion and deferred adjudication.  

            Community-based sanctioning programs will be most effective if they hold out the prospect of the offender's ending up with no criminal record.  The collateral consequences triggered by a conviction record can make it very difficult for offenders to get a job or housing and, generally, to put their lives back on track after their court-imposed sentence has been served. Sometimes the collateral consequences of conviction are far more severe than the direct ones, and it is therefore of considerable concern to defense counsel, in assessing whether to recommend a guilty plea to their clients, whether their client will end up with a felony conviction on their record. 

            Therefore, when a deferred adjudication/deferred sentencing/diversion option requires a defendant to enter a guilty plea as a condition of participation, such programs should also offer the incentive to defendants of having the charges dismissed and the record expunged if  they successfully complete the terms of probation.   Collateral consequences will not be triggered when the defendant meets the conditions of probation.  Deferred adjudication should be an alternative available, for example, for drug offenses in which the defendant did not play a leadership role in large scale drug trafficking and did not engage in violence. 

Proposed Solutions: 

            Legislative Changes:  Hold hearings on state deferred adjudication statutes and related programs. Draft/introduce a "federal deferred adjudication" bill that would authorize federal pilot programs in U.S. District Courts and provide funding for grants to states to develop/expand such programs. 

Jurisdiction:

            Legislative Branch:   Senate and House Judiciary Committees

Background:

            Legislative Branch:  A number of states and localities have developed programs to defer adjudication while defendants pursue drug treatment or to provide for expungement of conviction records after a period of good conduct.  In these states, prosecutors take advantage of laws that authorize diversion of offenders into probation programs, with the promise of a clear record upon successful completion. In Maryland, for example, prosecutors may allow a defendant to obtain "probation before judgment" to avoid a criminal conviction.  The Maryland statute authorizes courts to defer judgment and place a defendant on probation under reasonable conditions, if (i) the court finds that the best interests of the defendant and the public welfare would be served; and (ii) if the defendant gives written consent after determination of guilt or acceptance of a nolo contendere plea.  If probation is successfully completed, the court discharges the defendant from probation without judgment of conviction. The person discharged from probation may also petition the court for expungement of police or court records relating to the charges after a several-year waiting period, as long as the petitioner has no subsequent offense that involves a possible sentence of imprisonment.

Potential Allies, Potential Opposition, and Public Opinion:

            Potential Allies:  Families Against Mandatory Minimums, American Bar Association, National Association of Criminal Defense Lawyers, Federal Public and Community Defenders, the Constitution Project, American Civil Liberties Union, The Sentencing Project, Center for Community Alternatives, International Community Corrections Association, National Alliance of Faith and Justice, Prison Legal News, StoptheDrugWar.org, International CURE, Virginia CURE, drug policy organizations, prisoner rights advocacy groups, National District Attorneys Association, corrections officials, some law enforcement officials, and NAACP Legal Defense and Educational Fund

            Potential Opposition:  Some prosecutors, Federal Bureau of Prisons, some corrections officials

Experts:

• Stephen A. Saltzburg, Professor, George Washington University Law School
• Margaret C. Love, Washington, D.C.
• Joseph Cassily, NDAA, Harford County Prosecutor, MD
• Nancy LaVigne, The Urban Institute
• Lisa Schreibersdorf, Executive Director, Brooklyn Defenders Office
• William Carbone, Executive Director, Court Support Services Division, State of Connecticut Judicial Branch

For Further Information:

A joint policy statement adopted by the American Bar Association, the National Association of Criminal Defense Attorneys, and the National District Attorneys Association, supporting deferred adjudication and endorsing a range of alternatives to incarceration, can be found online at:  www.abanet.org/dch/committee.cfm?com+CR209800.

Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction: A State-by-State Resource Guide (2006) (inventory of state deferred adjudication statutes).

Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7 

Principles for the Design and Reform Of Sentencing Systems: A Background Report, http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7

Mandatory Justice:  The Death Penalty Revisited, http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf