First-time offender option in Tennessee may vanish

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First-time offender option in Tennessee may vanish

First-time offender option in Tennessee may vanish | tennessean.com | The Tennessean

Some defendants in Tennessee are allowed to get a form of immediate probation without going to trial and without admitting their guilt. If they behave for a certain period of time, they can have their records wiped clean as if the crime never occurred. But those practices may be coming to an end.

Prosecutors support ending the practices because they say the alternative sentencing option is too cumbersome to manage. But defense attorneys say if the crime is a first for the person and if it's not violent, then those people should get a break.

"There are instances where the judicial system should be rehabilitative and helpful," said Nashville criminal defense attorney David Raybin. "It avoids the cost and trauma of a trial and focuses on rehabilitation. To me, that is critical."

A bill moving through the state legislature would eliminate the alternative called pretrial diversion. It comes into play when district attorneys and the accused agree to essentially put off the prosecution of a case for a certain amount of time — typically a year or two.

If the defendant makes it through that period of time without getting into any more trouble, the charges are dropped. Police keep documentation of the arrest, but other public records connected to it are erased.

People who are eligible for pretrial diversion are first-time offenders accused of misdemeanors or minor felonies. It is not an option in cases of DUI and more serious offenses, including violent acts and most sex crimes.

Davidson County District Attorney Torry Johnson said the system was created to give people who make out-of-character mistakes a chance to avoid traditional trials. But over the years, Johnson said, pretrial diversion "has kind of outlived its usefulness."

"It's become a very convoluted process," he said. If prosecutors don't believe pretrial diversion is the right choice, a criminal defendant can challenge that, opening the door to an appeals process that can take years.

Other Option Available

A judge can use a second process, called judicial diversion, to give defendants the chance to have their records wiped clean after a probationary period. That method comes at the end of a trial or after a person has entered a conditional guilty plea. After a year or two of crime-free life, the plea is erased; if the person does get into trouble again, it is reinstated.

"You end up in the same place … the primary advantage is that they have to enter that plea," Johnson said.

Sponsor Cites Confusion

State Sen. Jim Kyle, D-Memphis, is sponsoring the measure. State Rep. Kent Coleman, D-Murfreesboro, is the bill's House sponsor.

Having two separate types of diversion causes confusion, Kyle said. "We're trying to eliminate that confusion by having one set of rules."

The Tennessee District Attorneys General Conference, an association of prosecutors, asked Kyle to sponsor the bill. Wally Kirby, the conference's director, said it can be hard for DAs to go after people who get pretrial diversion and then commit another crime.

"To get diversion, we think a defendant ought to take responsibility for their actions" by entering the conditional guilty plea, Kyle said.

Pretrial diversions are less common than their post-trial counterparts, Kirby said. He said state records show that in 2009, 278 men and women on pretrial diversion had their criminal records wiped away. That same year, 3,828 people who entered a conditional guilty plea as part of a judicial diversion got their records cleaned up.

From 2000 to 2009, 230 people charged with crimes completed a pretrial diversion in Nashville.

Raybin is scheduled to discuss the issue at legislative hearings today.

[TMMT]

First off this is about nothing more than the money the state gets when one is found guilty or pleads guilty and is placed on probation, ordered to pay a fine and probation fees.

Its also about the almighty criminal history. A permanent record you carry with you forever. The only way to get rid of it, is to die.

The fact that a prosecutor never wants to miss an opportunity to put a permanent spot on your record in the form of a criminal history disposition.

Its about control of your life, for the rest of your life.

Courts and Judges, (despite what you hear) have access to your full criminal history during judicial proceedings, especially during the sentencing phase of any trial. Including those arrests and convictions which are not visible to others during background checks for employment etc...

Another unintended consequence this will have is to ensure that an already clogged and packed court calendar will now become completely overwhelmed with cases. There is no chance of any type of deal to keep this off your record so, if you believe that you are not guilty then your only option is now to go to trial and warm up a jury.

The number of trials in Tennessee will increase by five fold instantly. At a huge cost to an already overburdened taxpayer funded system. And cases on court calendars which now take months to work thru will take years.

I was once told by a DUI lawyer that he tries to, and in most cases succeeds in getting a DUI case prolonged for up to 24 to 30 months. Its not hard to do with motions, hearings, continuances etc... the reason being is that a good number of police officers last about that same amount of time in a given job. So there is about a 45% chance that once the case goes to court the cop will be long since left the job, quit, fired or moved on and it will cost the state money to have him or her brought back for a trial. Case dismissed.

He said it works about 4 out of 10 times.

As of late even military deployments have given them the ability to get cases dismissed.

All this will do is to serve that purpose even further. Lawyers love delay and the longer a case is delayed the better the defense chances are of winning.