First-Offender Programs

Those who haven’t been in too much trouble with the law but are facing charges may be able to avoid conviction.

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A "first offender" program is a way for a defendant to avoid the full effects of a criminal prosecution. It’s a type of diversion, often for those who have no previous criminal record, or at least no felony convictions. (Usually traffic tickets don’t count, but defendants with juvenile offenses may be disqualified). In a typical first-offender program, by completing the program, the defendant keeps a conviction off her record.

Eligibility for first-time-offender programs varies from state to state. Some states may limit program participation to those facing misdemeanor charges, while others may let in those looking at certain felony charges. Commonly, though, first-offender programs are available only where the charges don’t involve a violent or “serious” offense. Many states have first-offender programs for juveniles.

Example: In Jefferson County, Wisconsin, to be eligible for the District Attorney’s first-offender program, a defendant must meet several eligibility requirements. Those include no prior convictions (excepting traffic violations) and the agreement of the prosecution. Participants must sign a contract that, in part, requires them to attend classes, make restitution, and undergo appropriate treatment or counseling. The defendant may have to live up to these requirements for six months, a year, or more. If the first offender successfully completes the program, the District Attorney’s Office reduces or dismisses the charge. If he falters, the prosecution will typically resume official court proceedings. (For more, see the Jefferson County site.)

Example: The SAGE Project, based in San Francisco and replicated in many other cities, is available to many who’ve been arrested for prostitution. The Project uses its First Offender Prostitution Project to remove women from commercial sexual exploitation and to educate "johns."

The Federal First-Offender Program

People who have been convicted of or are charged with certain federal drug crimes may be eligible for the federal diversion program, described in the Federal First Offender Act, 18 U.S.C.S. § 3607. To be eligible, the defendant must not have prior state or federal convictions concerning controlled substances. A person can participate in the federal program only one time.

Defendants who enter the program plead guilty or have been found guilty, but their judgment of conviction is not officially “entered” into the record. After a year of probation, if the defendant has completed its terms successfully, the court will dismiss the proceedings without entering the judgment of conviction. But if the defendant violates probation, the case will proceed with the entry of the judgment and sentencing. For successful probationers, the case "shall not be considered a conviction."

Defendants who were younger than 21 years of age at the time of the offense, and who successfully complete probation, will see the record of their case expunged or sealed. They may truthfully answer “No” to any questions about the case, even the arrest itself. The Department of Justice will maintain a nonpublic record of the case, for use by the courts when determining the person’s eligibility for future diversions under this program.

(For more in this area of law, see Probation and Supervised Release in Federal Court.)

Consult a Lawyer

If you face criminal charges, you may wonder whether you’re eligible for a first-offender program or some other kind of diversion. Even if you doubt you’re eligible, the advice of a lawyer with experience in your area is crucial. Rules and customs vary significantly from state to federal court, state to state, and even county to county.

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