15 November 2010

Alternatives to Punishment in Virginia

I recently got the following request from someone who is an experienced attorney just starting to practice criminal law in Virginia:
I am currently having problems finding out about diversion programs for first-time offenders. I suppose it goes county by county? Are you aware of any diversion programs, such as deferred prosecution or deferred sentencing agreements, for first time offenders?
First, in Virginia we don't call it diversion. If you say "diversion" most Virginia lawyers will think you are talking about a specific incarceration program. In Virginia the language you are looking for is "taking a case under advisement." When a case is taken under advisement the judge sets the case off for a period of time (usually 6 months or 1 year) and if the conditions set are met the charge is dismissed. This is a common law practice which has been done everywhere I've practiced in Virginia. However, the court of appeals has unilaterally struck it down unless there is a specific statute allowing it or all parties - the prosecution, judge and defendant - agree upon it (technically, the court specifically did not address this when it stripped trial judges of the right to place someone under advisement themselves). The three areas which I can think of which have specific statutes allowing cases to be taken under advisement are domestic assault and battery (18.2-57.3), misdemeanor property crimes (19.2-303.2), and drug cases (18.2-251). When a case is taken under advisement per the statute the defendant must complete all the requirements of the statute and any others the judge may put upon him. Most of the time the defendant enters a plea of "facts sufficient for conviction" and the judge withholds a finding while the defendant's case is under advisement. This ensures that the defendant can't get his case under advisement and then ignore the court's requirements when a major witness dies or moves to Gnome. As his counsel, you must be aware that there is a collateral consequence of this: the defendant's charge can never be expunged. In Virginia only charges which have led to a not guilty finding, a nolle prosequi, or have been "otherwise dismissed" can be expunged. Our appellate courts have read the "otherwise dismissed" language to mean that the defendant must not have any evidence of actual guilt. Since a plea of "facts sufficient" admits guilt there is therefore no expungement available (See Brown here).

Beyond taking things under advisement many jurisdictions have "Day Reporting Programs" for drug users, as well as drug courts. These are handled differently in just about every jurisdiction I've been to, but the general idea is intensive drug counseling and supervision. Drug court includes a weekly trip to the court where the judge meets out praise or punishment, depending on the merits of each individual. Most places require the defendant to plead facts sufficient before entering one of these programs and, as part of the plea or contract, mandate a punishment than would otherwise be imposed for the defendant if she enters either program and fails. Programs of this ilk are becoming more common nationally and you've probably dealt with them before, but I'm still going to give the warning I give everyone. A well run drug court is strict and the best I saw probably never graduated more than 50% of its entrants. Your client, who is not thinking beyond next week, will want to go into the program to keep from going to jail. He won't think about the fact that he could serve 3 months now and he'll have to serve 9 months if he fails the program. I've seen a lot of people get more time in jail than they would have otherwise because of this shortsightedness.

Another possibility is Home Electronic Monitoring (HEM), which is more commonly called home arrest. Some jurisdictions are more open to this than others. I have been in many jurisdictions where even mentioning HEM was a non-starter unless there were incredibly unusual circumstances. I've also been in a couple where it is an accepted way to deal with certain offenders.

Finally, if your client is going in there are a few programs to consider: Detention, Diversion, & TC. TC is Therapeutic Community and it's a program offered by the Department of Corrections for addicts. It's a three year program and, to judge by how much defendants want it, must have better conditions than general imprisonment. I've seen a number of judges order or recommend that a defendant go into this program, but I make no guarantees that DOC pays any attention. Detention is drug counseling and strict control environment. As I understand it, this program is something of a boot camp light. Diversion is the one your clients will want. Basically, it is supposed to be drug counseling and outside work. Be advised, prior violent convictions and medical problems will keep your client out of these programs.

That's all that pops into my mind right now. There may be some other programs available in your area and some different use of language, but I think I've covered enough of the basics to get you rolling.


Jamison said...

Mr. Lammers:

Thank you for the prompt, thorough, and completely helpful response.

Assuming the defendant is in fact required to enter a plea to facts sufficient for conviction, the "taking under advisement" option you describe sounds a lot like the deferred sentencing agreement in D.C. or what is called a Section 17 or Section 18 program in Pennsylvania.

I will have to read Virginia's expungement statute because I was NOT aware this type of arrangement would preclude the defendant from ever getting the charge expunged. (In D.C. you can even get certain convictions "sealed" under the right circumstances.)

I do know that any type of plea in exchange for a DSA/diversion/advisement program will be considered a conviction for immigration purposes.

Thanks again for your help.

Anonymous said...

Mr. Lammers:
I appreciate your help with this topic. You may wish to update your statement regarding the court of appeals in light of the VA Supreme Court's decision in Hernandez v. Commonwealth (decided January 13, 2011). SCoVA ruled that "the circuit court had the inherent power, in the exercise of its discretion, to take the matter under advisement and to continue the case for future disposition, subject to such lawful conditions as the court might prescribe.”

Ken Lammers said...

And the Virginia Court of Appeals then said a judge can take things under advisement, but must find guilt if facts are sufficient and cannot reduce the charge.

Taylor v. Commonwealth, JUN11, VaApp No. 2236-09-1.