Deferred adjudication is a process for resolving criminal cases that allows defendants to avoid a conviction. Defendants who are eligible for deferred adjudication typically enter a plea of guilty or no contest. A judge accepts the plea but sets it aside temporarily in exchange for the defendant agreeing to stay out of trouble and comply with certain conditions, such as performing community service. Defendants who comply with the conditions of deferred adjudication earn a dismissal of the charges and avoid the consequences of a criminal conviction.
Nearly all states and the federal government have statutes authorizing some form of deferred adjudication (also called "deferred entry of judgment," "deferred sentencing," "deferred acceptance of guilty plea," and "probation before judgment"). The terms of deferred adjudication vary from state to state, but the goal is the same—to divert individuals away from a conviction at the front end of a criminal case.
In most states, defendants who accept deferred adjudication:
The purpose of deferred adjudication is to hold defendants accountable through a formal court process, without burdening them with the consequences and stigma of a criminal conviction.
How a Defendant Accepts Deferred AdjudicationHere's an example of how and why a defendant might agree to deferred adjudication.
Jennifer is charged with possession of cocaine. The cocaine was found in her pocket, so she knows she will probably be convicted if she goes to trial. She doesn't want to enter a traditional guilty plea because she doesn't want to go to jail or be burdened with the collateral consequences of a criminal conviction (like losing employment opportunities or voting rights). Fortunately, based on her offense and limited criminal history, she is eligible for deferred adjudication.
After consulting with her lawyer, she pleads guilty (waiving her right to a trial) in exchange for deferred adjudication. She signs a written agreement to stay out of trouble, complete community service, and attend drug treatment for 18 months. The judge accepts her guilty plea and continues the case—without entering a judgment of guilt in the court record—for further review.
Jennifer fulfills her part of the deal, earning a positive report from the probation department. At her 18-month review, the judge finds she has satisfied the conditions of deferred adjudication and dismisses her case. Had Jennifer failed to comply with her conditions, the judge would have entered her guilty plea into the court record and sentenced her.
Eligibility for deferred adjudication varies greatly among states but is generally based on the type of offense and the defendant's criminal history. Some states grant deferred adjudication to first-time offenders only. Others limit it to certain categories of crimes, like drug offenses, to encourage defendants to engage in treatment.
A growing minority of states make deferred adjudication broadly available for most misdemeanors and a significant number of felonies, without regard to prior record. In these states, courts (and sometimes prosecutors) determine the appropriateness of deferred adjudication on a case-by-case basis.
Deferred adjudication conditions are similar to standard probation conditions and might include:
One key difference between deferred adjudication and probation is timing: Deferred adjudication occurs before judgment and sentencing, so judges can't order jail as a condition of deferred adjudication. Judges grant probation as part of a defendant's sentence and can order a period of incarceration as a condition of probation.
The goal of deferred adjudication is to restore defendants to the legal and social position of someone who has never been charged with or convicted of a crime.
Some states, but not all, automatically expunge and seal the records of defendants who successfully complete deferred adjudication. In these cases, background checks by private employers, landlords, or nosy neighbors won't reveal that a defendant pleaded guilty and successfully completed deferred adjudication. Law enforcement agencies and other authorities, like state licensing boards, will almost always have access to the entire criminal record.
For a state-by-state breakdown of deferred adjudication approaches and other record relief policies, see the Restoration of Rights Project's "50-State Comparison: Expungement, Sealing & Other Record Relief."
Timing Is Everything: How Deferred Prosecution Differs from Deferred AdjudicationSome states offer deferred prosecution, which sounds similar to deferred adjudication, but is typically better for defendants. The key difference is the timing: Defendants don't have to plead guilty to accept deferred prosecution (called "diversion" in some states).
Deferred prosecution is generally limited to non-violent, first-time offenders. Participants who successfully complete deferred prosecution earn a dismissal of their case. Participants who violate the conditions of deferred prosecution reserve their right to enter a plea of not guilty and explore a plea bargain or demand a trial.
Defendants who violate (fail to comply) with conditions of deferred adjudication face consequences ranging from a modification of their terms to conviction and incarceration.
Defendants are entitled to a hearing in front of a judge when a probation officer or a district attorney alleges a violation of deferred adjudication. The burden is on the prosecution to prove the violation by a preponderance of the evidence (a more likely than not standard).
If the judge finds (or the defendant admits) a violation, the judge can modify the conditions of deferred adjudication or revoke it. If deferred adjudication is revoked, the case stands as it did the moment after the defendant pleaded guilty. Defendants can't change their minds and decide to go to trial at this point. Instead, the judge finds them guilty based on their guilty plea and sentences them up to the maximum possible punishment for their offenses.
Immigrants (whether with a visa, green card, or no status at all) should carefully consider accepting deferred adjudication if deferment requires an initial guilty plea, as many do. Deportation can be triggered under federal immigration law by the initial guilty plea alone, irrespective of the defendant's successful completion of deferred adjudication. Pre-plea diversion (deferred prosecution) might not count as a conviction for immigration purposes. If the case is dismissed by the prosecution or won at trial (a verdict of acquittal), the defendant would also avoid immigration consequences. Talk to an attorney who understands the consequences of criminal convictions on non-citizens before agreeing to diversion or deferred adjudication.
If you've been arrested or charged with a crime, talk to a criminal defense lawyer with experience practicing in your area. A lawyer will be able to fully explain the applicable law, including the ins and outs of deferred adjudication.