Diversion Programs for First-Time Offenders
People make mistakes. Many of these mistakes are fueled by alcohol. In the overwhelming majority of the criminal cases that result from these mistakes, the person will learn from the experience. After all, it is pretty sobering to be arrested and to spend the night in a jail cell. It is expensive to hire a good lawyer. And appearing in court over multiple listings can take up a tremendous amount of time. People who mistakenly assume that their cases will be resolved – one way or another – at their very first court appearance are often in for a rude surprise.
When someone is arrested for making such a mistake, the government is more interested in making sure that such a mistake does not happen again than it is punishing that person for the rest of her life with a conviction on her record. After all, most people appreciate the importance of second chances. Moreover, and this is what gives the defendant some leverage, the government does not have anywhere close to the resources that would be necessary to prosecute every single offense to the full extent of the law. If, for example, every single defendant charged with a minor misdemeanor exercised her constitutional right to trial, the whole system would shut down.
This is where diversion programs for first-time offenders enter into the equation; such programs benefit both sides. The defendant comes out of the whole experience without a conviction on her record. And the government avoids the hassle and expense of preparing for trial.
Described below is a continuum of diversion programs that are available to first-time offenders in D.C., beginning with the programs that are most beneficial to the defendant. Please note that all diversion programs are offered at the discretion of the prosecutor’s office.
The No-Papering of a Criminal Case
Although technically not a diversion program, the best-case scenario in any situation in which a person has been arrested is that the case will be “no-papered.” This is the dismissal of the case before formal charges are instituted.
In filling out the police report, the officer will typically include the criminal offense he or she thinks is merited based on the facts of the incident that led to the arrest. The police paperwork is then sent over to the “papering” unit at either the U.S. Attorney’s Office or the Office of the Attorney General where it is reviewed by a prosecutor.
The prosecutor decides first whether or not to paper the case at all. In making this decision, the prosecutor will presumably look at a number of considerations, including the seriousness of the offense, the accused’s prior record, the legality of any search or seizure associated with the arrest, and/or the willingness of potential witnesses to cooperate in the prosecution.
The government will typically decide to “no paper” roughly 10% to 20% of the cases. These are the cases that are called out first on the day of the arraignment.
In cases in which the government decides to institute formal charges, the next challenge for the papering prosecutor is to determine the appropriate charges. The prosecutor might decide, for example, that a criminal offense originally written up in the police report as a burglary should really be the lesser included offense of unlawful entry. Unlawful entry is a misdemeanor instead of a felony.
Stet is Latin for “let it stand.” Stet processus means “let the process stand.” Although the stet docket in D.C. is offered almost exclusively in unlawful entry cases, a description of it is included here to illustrate the range of diversion programs that are sometimes offered.
Unlike with the “no papering” of an offense, charges are in fact brought with the “stet docket.” Putting a case on the stet docket means that the government has agreed to suspend – or stay – prosecution of the charges for a period of time (typically four to six months). If the defendant succeeds in staying out of trouble during this period, the charges will be dismissed. If, on the other hand, the defendant is arrested on probable cause on a new charge during, the government will prosecute the defendant on the new charge. It can also resurrect the old charge, with the intervening time period “tolled” for the purposes of the defendant’s constitutional right to a speedy trial.
Deferred Prosecution Agreement (DPA)
The next option along the continuum of diversion programs for first-time offenders is called a deferred prosecution agreement (DPA). A DPA is similar to a stet docket in that the prosecution of charges is delayed for a period of time, typically four to six months. The difference is that with a DPA the defendant will typically perform an agreed-upon set of conditions, which normally includes community service.
If the defendant successfully completes all the conditions of the DPA within the agreed-upon timeframe, the government will dismiss the charges, and the accused will emerge from the prosecution without a conviction on his or her record. If, on the other hand, the defendant fails to abide by the terms of the DPA, then the defendant is back in the same position he or she was in prior to entering into the DPA – that is, facing criminal charges.
Deferred Sentencing Agreement (DSA)
A deferred sentencing agreement (DSA) is similar to a DPA. The difference is that, unlike with a DPA, the defendant waives his or her right to a trial and pleads guilty to the charges as part of his/her agreement with the government. The court, however, does not enter the guilty plea into the record. Instead, the court will typically schedule “sentencing” six months to a year down the road, thereby giving the defendant an opportunity to complete whatever conditions have been negotiated with the government (typically community service and possibly restitution).
If the defendant completes all of the conditions successfully during the agreed-upon time frame, the court will permit the defendant to withdraw his or her guilty plea and the government will dismiss the charges. (People entering into a DSA should be aware that, although successful completion of a DSA does not result in a formal conviction on the person’s record, there are some government agencies – Immigration and Customs Enforcement (ICE) and the Department of Motor Vehicles (DVM) in D.C., for example – who view participation in a DSA as equivalent to a conviction.) If, however, the defendant fails to complete the DSA successfully, he or she has waived his or her right to a trial and the court can simply proceed to sentencing, thereby resulting a conviction on the person’s record.
Note: In every instance in which a defendant has successfully completed a diversion program, the defendant should consult a lawyer about having his or her criminal record sealed.
Covid-19 update: Along with most other criminal matters pending before D.C. Superior Court, hearings related to DPAs, DSAs, and other types of diversion have been postponed, many into 2021, because of the pandemic. The agreements will remain in force during this time. The government can agree to dismiss charges in cases in which the defendant has already performed all or most of the required conditions. The government is still offering diversion programs with respect to new cases. Assuming all parties agree, these parties can be entered into through a remote hearing.
For further information on the pros and cons of a diversion program for first-time offenders, and whether or not you might be eligible for one, please contact Jamison Koehler at 202-549-2374 or firstname.lastname@example.org. Mr. Koehler has extensive experience in working out this type of agreement with the government.