*Update (3/3/22): the full national report, “The Many Roads from Reentry to Reintegration,” is now available. Last week we announced the forthcoming publication of a national report surveying various legal mechanisms for restoring rights and opportunities following arrest or conviction, a revision and updating of our 2020 report “The Many Roads to Reintegration.” The first post in the series (“Expungement, Sealing & Set-Aside of Convictions”), published on February 25, gives some additional background about the report. The second post in this “preview” series (“Fair Chance Employment & Occupational Licensure”) was published on February 26. The third part (“Executive Pardon”) was published on February 28. Today’s post concerns the role that court-managed diversionary dispositions play in reducing convictions and avoiding collateral consequences. Since our first national report was published in 2018, many states have expanded the availability of these non-conviction dispositions, including for any defendant potentially eligible for a probationary sentence, and made record clearing more generally available. We expect to publish the whole national report, plus our Reintegration Report Card for 2022, later this week. Judicial Diversion and Deferred Adjudication: A National Survey An increasingly desirable strategy for facilitating reintegration through avoiding collateral consequences is to divert individuals away from a conviction at the front end of a criminal case. Diversion in its various forms offers a less adversarial means of resolving an investigation or prosecution through compliance with agreed-upon community-based conditions leading to dismissal of charges and termination of the matter without conviction. Diversionary dispositions are described in the Model Penal Code: Sentencing as a way to “hold the individual accountable for criminal conduct when justice and public safety do not require that the individual be subjected to the stigma and collateral consequences associated with conviction.”[1] In this understanding, diversion functions as a mechanism for ensuring accountability and facilitating rehabilitation, rather than as retribution for its own sake.[2] The effectiveness of diversionary dispositions in furthering these goals has not been studied in depth, and they are not without their controversial aspects, but existing research suggests their promise.[3] Diversion may allow for a mutually-acceptable outcome for the prosecutor and defendant in cases where the extent of culpability is not clear, where a treatment intervention seems appropriate, or where the defendant otherwise fits within some category considered deserving of leniency (e.g., human trafficking victims, veterans, “youthful offenders”). While terminology and program characteristics vary, there are two primary types of diversion: deferred prosecution or diversion is typically managed by the prosecutor and may or may not be regulated by law, while deferred adjudication is managed by the court after charges have been filed and is typically regulated by statute or court rule. Diversion may also be judicially managed, notably in treatment and other specialized “intervention” courts for those suffering from substance abuse or mental illness, and for special populations like veterans. One or both of these dispositions is authorized in every jurisdiction, and eligibility may range from narrowly-defined categories of offenses or individuals to any probation-eligible crime.[4] Deferred prosecution is controlled by the prosecutor and may commence before or after the filing of criminal charges. Typically, it involves an agreement between the prosecutor and an arrested or charged individual that successful completion of a community-based program will terminate the criminal investigation or prosecution. While a court may be involved in approving the terms of a deferred prosecution agreement, particularly if it involves use of court supervisory or treatment resources, the prosecutor decides whether a person may participate in diversion and has complied with conditions of the agreement, so as to avoid further prosecution. Pure diversion may result in a formal decision not to prosecute (“nolle prosequi”), and the record of the defendant’s arrest and any charges may be subject to court-ordered dismissal and sealing. If the person was never charged, there may be no court record to seal, and state laws may or may not provide for limiting public access to uncharged arrest records in a state repository and law enforcement agency.[5] Deferred adjudication is most saliently distinguished from pure diversion by the more formal authority of the court to manage the criminal case, usually after charges have been filed. It is designated variously in state codes,[6] and varies also in how it is administered from state to state. It often requires a plea, admission, or finding of guilt, and almost invariably includes a period of probation and/or other conditions administered by the court, with the court deferring entry of a judgment of conviction. The prosecutor may have a say in which defendants are given the option of a deferred disposition, and in a few states even a dispositive one, but the key legal difference between the two dispositions is that the court determines whether the defendant has complied with conditions when adjudication or sentencing has been deferred, so to warrant vacating any plea and dismissing the charges. Nowadays, dismissal of the charges generally includes sealing of the record, frequently but not always at disposition. The discussion that follows focuses on deferred adjudication rather than prosecutor-controlled diversion, as the latter frequently operates informally in accordance with the policies of a specific prosecutor’s office and typically does not involve a formal court proceeding beyond placing a post-charge diversion agreement on the record. This section also does not discuss record relief mechanisms by which courts are authorized to reduce felony convictions to misdemeanors after completion of conditions, dispositions that resemble deferred adjudication in offering an alternative way of encouraging compliance and making the record eligible for expungement, but that do not have the advantage of avoiding a record of conviction.[7] Deferred adjudication first became popular in the 1970s as an efficient case management tool for prosecutors reluctant to divert entirely, and a way of maximizing the possibility that defendants could be steered out of the justice system entirely so as to avoid the collateral consequences of a conviction.[8] (Avoidance of collateral consequences was of course considerably easier in the days before digitization of criminal records and the near-universal practice of background checking.) There are pluses and minuses both for criminal defendants and for the prosecution in these types of dispositions: for defendants there is the prospect of a “clean slate” if they can manage to comply with sometimes-onerous conditions, which may include substantial financial costs for supervision or required programs, and for prosecutors there is the prospect of swift and potentially harsh consequences if a defendant fails.[9] At the same time, the long-term benefits for the community of this sort of conviction-avoidance setup for at least some defendants have been established in the research literature.[10] While every state offers some form of prosecutor-directed diversion, and many also have specialized treatment courts to which individuals may be referred on a county-by-county basis, in the past three or four years states have taken advantage of expanded court-managed diversionary dispositions to lower incarceration rates across the board, and they have made sealing more generally available after successful completion. Eligibility criteria and standards for participation in a deferred adjudication program have been broadened, and several states have enhanced their courts’ ability to offer deferred dispositions by authorizing admission of a defendant notwithstanding a prosecutor’s objection.[11] Some states have also eliminated the requirement of a guilty plea to avoid having this disposition trigger federal collateral consequences, as some federal laws and policies—including immigration law—treat diversionary pleas as convictions, even if no judgment of conviction is ever entered by the court.[12] The map accompanying this section shows that 17 states now make deferred adjudication broadly available, in many cases for any offense eligible for a probationary sentence and without regard to prior record, leaving it up to the court to determine the appropriateness of the disposition on a case-by-case basis (frequently in consultation with the prosecutor).[13] States whose diversion authority is connected to specialized treatment courts are not included in this category. All but one of these 17 states authorize sealing upon successful completion of supervision, though Texas requires a 2-to-5-year waiting period in some cases before the court will issue an “Order of Nondisclosure.”[14] The next category of 18 states is distinguishable from the first by varying restrictions on eligibility based on offense charged or prior record and, for many, limits on record relief.[15] Florida and Louisiana alone in this group allow someone with a prior felony conviction to participate, but both restrict sealing in these cases (Florida for almost any prior record and Louisiana by a 10-year waiting period for felonies and 5 for misdemeanors). Illinois has a 5-year wait to expunge for its “Second Chance Probation” and other diversionary programs, and Idaho, Iowa, and Wyoming do not allow sealing at all. Delaware, Pennsylvania, and Oregon still restrict eligibility for their “probation before judgment” programs to misdemeanor-level cases, and Connecticut’s “Accelerated Pretrial Rehabilitation” program is reserved for individuals whose crimes were “not of a serious nature.” Some of these states also have specialized programs that defer accused individuals out of the criminal system. A third group of 7 states offer deferred dispositions leading to expungement exclusively for participation in specialized court programs, including but not limited to substance abuse treatment, or in other defined circumstances. In many of these states a court-managed drug treatment program has existed for years, although statewide statutory programs have been established in Georgia, Mississippi, and Wisconsin to target additional populations like veterans and individuals with mental health needs.[16] Many of these programs have been expanded in recent years to reach people charged with felonies who have a prior felony record.[17] A fourth group of 8 states restrict the court’s statutory deferral authority to narrow categories (e.g., first drug offenses or first misdemeanors).[18] In these states, treatment courts operate in some counties, with informal state-wide coordination. The statute authorizing deferred adjudication in federal cases was enacted in 1984 and adheres to the narrowest eligibility model, with relief narrowly targeted to youthful offenses.[19] In recent years federal courts have implemented informally various programs to divert and defer criminal defendants,[20] but there is little authority for these programs in federal statutes and no evidence of Congressional interest even in expanding the limited statutory authority that does exist. There have been only a few research studies of these programs, but those that do exist have generally found them effective in promoting desistance, employment, and earning outcomes at least for some populations.[21] Criticism of these programs generally involves their potential for coercion at the front end and intrusive supervisory regimes that many individuals will predictably fail. As the adverse consequences of a conviction record show no signs of abating, studying conviction-avoidance mechanisms like diversion and deferred adjudication should be a research priority for the academy.[22] In the end, as the public appetite for punitive prosecution and incarceration policies fades in the states, and a public commitment to rehabilitation and clean slate outcomes grows stronger, it is likely that governments will focus more resources on community-based accountability and treatment programs as opposed to custodial punishments. In this environment we can expect jurisdictions to expand reliance on court-managed diversionary programs, with additional states joining the 17 whose programs we determined to be “broadly inclusionary.” Further information about deferred adjudication procedures and eligibility can be found in in the state-by-state profiles in the Restoration of Rights Project (http://restoration.ccresourcecenter.org). Report Card: Judicial Diversion and Deferred Adjudication The grading categories for diversion and deferred adjudication are as follows: A. broad eligibility for deferred adjudication by type of offense and record of defendant, with sealing upon disposition. B. Less broad eligibility, including no prior felonies, and less favorable relief. C. Broad eligibility through treatment and other specialized intervention courts. D. Narrow eligibility through treatment and other specialized intervention courts. State Grades AL B AK C AZ C AR B CA D CO A CT C DE C DC D FL C GA C HI B ID B IL C IN C IA C KS D KY B LA C ME A MD A MA A MI D MN D MS A MO A MT B NE A NV C NH D NJ C NM A NY C NC D ND A OH D OK B OR C PA C RI A SC C SD C TN A TX A UT A VT A VA A WA A WV A WI D WY C Fed D End Notes [1] See American Law Institute, Model Penal Code: Sentencing (2017) §§ 6.06(2) (“Deferred Adjudication”), 6.04(2) (“Deferred Prosecution”) (same quoted phrase except “charge and” are inserted before conviction). Because one goal of this model law is to introduce more transparency and structure into a prosecutor’s administration of pure diversion, the section on deferred prosecution is considerably more detailed than the one dealing with court-managed diversion. These schemes may have been modeled on Section 301.5 of the 1962 Model Penal Code, which provides that upon successful completion of a period of probation, the court may order that the judgment “shall not constitute a conviction for the purpose of any disqualification or disability imposed by law upon conviction.” Diversionary schemes have antecedents even in the early 20th century. See, e.g., Marks v. Wentworth, 85 N.E. 81, 82 (Mass. 1908) (if “the object of the probation seems to the court to have been accomplished, in such a way as not to require any punishment of the defendant, either for his own reformation or in the interests of the public, the court may finally dispose of the case by a dismissal of it”); C. S. Potts, The Suspended Sentence and Adult Probation, 1 TEX. L. REV. 188, 190 (1923) (discussing 1913 law; “[i]f defendant is not convicted of another felony during the time assessed as punishment by the jury, he may make application for a new trial and have the case dismissed.”); Report of Committee C of the American Institute of Criminal Law and Criminology: Adult Probation Parole and Suspended Sentence, 1 J, Am. Inst. Crim. L. & Criminology 438, 443 (1910) (“we strongly recommend that after successful probation the indictment or complaint should be dismissed of record.”). [2] See Love, et al., Collateral Consequences of Criminal Conviction, supra note 6 at § 7:22 (“Deferred adjudication and other diversionary dispositions”); Margaret Love, Alternatives to Conviction: Deferred Adjudication as a Way of Avoiding Collateral Consequences, 22 Fed. Sent’g Rep. 6 (2009). [3] See, e.g., Michael Mueller-Smith and Kevin Schnepel, Diversion in the Criminal Justice System (January 17, 2019) (studying short- and long-term outcomes of deferred adjudication in Harris County, Texas, and finding notable benefits for young Black men with no previous involvement in the justice system), https://sites.lsa.umich.edu/mgms/wp-content/uploads/sites/283/2019/01/Diversion.pdf; Ted Chiricos et al., The labeling of convicted felons and its consequences for recidivism (17 Sept., 2007) (studying recidivism outcomes of withheld adjudications in Florida), https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9125.2007.00089.x. [4] See Pretrial Diversion, National Conference of State Legislatures (September 28, 2017), available at http://www.ncsl.org/research/civil-and-criminal-justice/pretrial-diversion.aspx (providing statutes for 49 states and the District of Columbia); S.D. Codified Laws §§ 23A-3-35, 23A-3-36, 23A-27-12.2, 23A-27-13. The one state that apparently lacks any statutory diversion authority, North Dakota, provides for diversion by court rule. See N.D. R. Crim. P. 32.2. Many of these states also have specialized treatment courts to which prosecutors may refer individuals pursuant to a deferred prosecution agreement. Courts whose diversion authority is limited to treatment courts are listed at note 172, infra. [5] See Collateral Consequences Res. Ctr., Model Law on Non-Conviction Records § 2(a)(Dec. 2019), https://ccresourcecenter.org/model-law-on-non-conviction-records/. [6] See, e.g., Ark. Code § 16-93-1206 (“suspended imposition of sentence”); Cal. Penal Code §§ 1000 & 1000.8 (“deferred entry of judgment”); Colo. Rev. Code § 18-1.3-102 (“deferred sentencing”); 11 Del. Cod. § 4218 (“probation before judgment”); Conn. Gen. Stat. § 54-56e (“accelerated pretrial rehabilitation”); Hawaii Rev. Stat. § 853-1 (“deferred acceptance of guilty plea”); Maryland Code, Criminal Procedure § 6-220 (“probation before judgment”); Mass. Gen. Laws ch. 278, § 18 (“continuance without a finding”); N.Y. Crim. Proc. Law § 170.55 (“adjournment in contemplation of dismissal”); N.D. Cent. Code § 12.1-32-02(4) (“deferred imposition of sentence”); Ohio Rev. Code § 2951.041 (“intervention in lieu of conviction); Tex. Code Crim. Proc. art. 42A.102 (“deferred adjudication community supervision”); Utah Code Ann. 77-40-104 (“plea in abeyance”); 18 U.S.C.A. § 3607 (“pre-judgment probation”). [7] See, e.g., Cal. Penal Code § 17(b) (“wobbler” charged as a felony may be reduced to a misdemeanor); Idaho Code. Ann § 19-2601(3) (reduction of felony to misdemeanor); Minn. Stat. § 609.13, subd. 1 (same); N.D. Cent. Code § 12.1-32-02(9) (same). [8] See, e.g., Yale v. City of Independence, 846 S.W.2d 193 (Mo. 1993) (“The obvious legislative purpose of the sentencing alternative of suspended imposition of sentence is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow.”); State v. Schempp, 498 N.W.2d 618, 620 (S.D. 1993) (noting that the purpose of suspended imposition of sentence is “to allow first-time offender to rehabilitate himself without the trauma of imprisonment or the stigma of conviction record”). See generally Love, Alternatives to Conviction, supra note 157, at 6. [9] See, e.g., Amy Yurkanin, Leniency for sale? Alabama offers first offenders a second chance — at a price, AL.com (Oct. 9, 2017, updated Mar. 7, 2019), https://www.al.com/news/2017/10/dismissal_for_sale_programs_of.html; see generally Nat’l Ass’n of Criminal Def. Lawyers, America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform 11 (2009), available at http://www.nacdl.org/criminaldefense.aspx?id=20191 (“Although procedures vary, the hoops through which participants must jump result in dismissals for relatively few defendants. Profound consequences flow from every failure.”). Commenting on the perils of exposing ill-equipped defendants to the high cost of failure under the Texas deferred adjudication law, a practitioner in that state recalled to one of the authors of this report that prosecutors value it as an option because it is available to a broader group of offenses than regular probation (and they have lobbied to keep it that way), and particularly because the defendant retains their full exposure to the underlying penalty. So a deferred for burglary (a first degree felony) can be violated with limited due process and get the 50 years the prosecutor wanted in the first place. They tell the baby DAs that deferred is the easy way to send someone to prison “because you know they’re going to screw up.” [10] See research reports cited in note 158, supra. [11] See, e.g., Ariz. Rev. Stat. § 11-361, amended in 2021 by HB 2186 to strike a series of restrictions on the availability of this disposition based on an individual’s prior record, and to authorize sealing; Cal. Penal Code §§ 1001.21 through 1001.29, amended in 2020 by AB3234 to permit a court to defer judgment over the objections of the prosecutor. [12] See, e.g., Or. Rev. Stat. § 475.245 (eliminating the requirement of a plea or admission to avoid triggering deportation under 8 U.S.C. § 1101(a)(48)); Colo. Rev. Stat. § 18-1-410.5 (authorizing vacating guilty pleas in diversion cases on grounds that they were entered without adequate advice of counsel). Among the other federal laws and policies that treat diversionary dispositions as a conviction if the person was required to plead guilty or admit facts sufficient to establish guilt, even if the plea has been withdraw and the case dismissed, are federal sentencing guidelines, U.S.S.G. § 4A1.2(f) and the federal Fair Credit Reporting Act, 15 U.S.C. § 1681c(a), as construed by Aldaco v. RentGrow, Inc., 921 F. 3d 685 (7th Cir. 2019). The federal banking laws independently consider diversionary dispositions to be convictions without regard to a guilty plea, see 15 U.S.C. § 1892(a)(1)(A), but the FDIC has recently amended its interpretive policy document to give effect to expungement and sealing, which should provide states with incentive to amend some of the deferred adjudication provisions that require waiting periods before sealing or do not provide for sealing at all. See Federal profile, Restoration of Rights Project, Section III(B)(3)(b), and note 128, supra. [13] The 1 states whose courts have broad deferred adjudication authority leading to expungement or sealing of the record are Alabama, Arkansas, Colorado, Massachusetts, Missouri, Nebraska, New Jersey, New Mexico, North Dakota, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and West Virginia. Details of these laws and statutory citations are available in the relevant state profiles from the Restoration of Rights Project. [14] In Texas, people charged with non-violent misdemeanors who are discharged following “deferred adjudication community supervision” are eligible for an automatic OND, although the court may deny relief in specific cases. Those denied automatic relief, along with those charged with felonies and serious and repeat misdemeanors, may seek relief after a waiting period, two years for misdemeanants and five years for felonies. See Tex. Code Crim. Proc. art. 42A.102; Tex. Gov’t Code § 411.0725. [15] The 18 states in this category are Alaska, Connecticut, Delaware, Florida, Hawaii, Illinois, Idaho, Iowa, Kentucky, Louisiana, Maine, Maryland, Montana, Oklahoma, Pennsylvania, South Carolina, South Dakota, and Wyoming. [16] The seven states in this category are Arizona, Georgia, Indiana, Mississippi, New Hampshire, New York, and Wisconsin. States in other categories may also have systems of problem-solving courts offering deferred dispositions. [17] Compare, e.g., Ind. Code §§ 12-23-5-1 et seq. (deferral with prosecutor’s permission of individual charged with non-violent misdemeanor with no prior felony)(1992) with Ind. Code §§ 12-23-7.1-1, 12-23-6.1 (deferral of individual charged with non-violent felony who self-identifies as drug abuser or alcoholic who has no more than one prior felony)(2015). [18] The eight states in this category are California, Kansas, Michigan, Minnesota, Nevada, North Carolina, Ohio, and Oregon. They are joined by the District of Columbia, whose courts have authority to defer sentencing independent of the prosecutor only in first drug possession cases. [19] See 18 U.S.C.§ 3607 (deferred adjudication if a person charged with drug possession has no prior drug conviction; expungement only if offense committed under the age of 21). [20] A 2017 report from the United States Sentencing Commission (USSC) catalogues various programs managed by federal courts that are geared to avoiding a prison sentence, though perhaps not always a criminal record. See Federal Alternative-to-Incarceration Court Programs (September 2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20170928_alternatives.pdf. That report describes generally analogous state problem-solving court programs but does not focus on statutory deferred adjudication options aimed at avoiding conviction and generally leading to expungement of the record. Perhaps because federal law contains only one narrow authority for deferred adjudication (18 U.S.C. § 3607, sometimes referred to as the Federal First Offender Act), the USSC report does not address non-incarceration outcomes that avoid a conviction record. Curiously, it does not suggest the potential usefulness of such outcomes in reducing recidivism or proposed further study of these issues. Such a study has been suggested on several occasions by the Practitioner’s Advisory Group to the USSC. [21] See supra note 158. [22] A collection of social science research into “strategies to improve reentry outcomes” judged diversion from incarceration and cognitive therapy a productive strategy, though intensive supervision was judged among the least effective. See Jennifer Doleac, Strategies to productively reincorporate the formerly-incarcerated into communities: A review of the literature. IZA Discussion Paper No. 11646 (2018).
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