First-Offender Programs

The basics of first-time offender programs, eligibility, rules, and possible outcomes.

By , Attorney · Mitchell Hamline School of Law

A "first offender" program is a way for a defendant to avoid the full effects of criminal prosecution. It's a type of diversion, often for those who have no previous criminal record. In a typical first-offender program, by completing the program, the defendant keeps a conviction off their record.

What Are First-Offender Programs?

First-offender programs divert certain first-time defendants away from the traditional criminal process and into pretrial (sometimes pre-charge) services that address their specific needs—such as substance addiction, mental health needs, gang involvement, homelessness, or food insecurity—that may have brought about the criminal behavior.

Goal. The goal of these programs is to hold defendants accountable while trying to keep them out of the system at present and in the future.

Who runs the program? Many first-offender programs are run by prosecution offices at the local, state, or federal level. Depending on the needs of the jurisdiction, an office might offer first-offender programs to defendants facing first-time drug possession charges or nonviolent misdemeanor or felony charges. Defendants must voluntarily agree to participate in the program.

What is the outcome? If the defendant successfully completes the program, the prosecutor might dismiss or reduce the charge or decide not to formally file the charges. However, prosecutors leave their charging and prosecution options open for those defendants who violate the rules or don't complete the program. These defendants usually go back to square one and head to court.

Who Is Eligible for First-Offender Programs? Can First-Time Felons Qualify?

Eligibility for first-offender programs varies from state to state and federal district to federal district. Often, a state or federal law will authorize a diversion program and set high-level eligibility requirements. And then it's up to the individual prosecutor's office to decide what type of program to run and what eligibility requirements to impose. (Generally speaking, defendants are not entitled to participate in a diversion program even if it's offered and they meet the requirements.)

For instance, state law might authorize pretrial diversion programs for defendants charged with a nonviolent felony or misdemeanor, as long as the defendant has no prior convictions for violent crimes, has never been in a diversion program before, and isn't charged with a crime involving a position of trust (such as embezzlement). Prosecutors' offices around the state could implement various programs under this authority. Some might focus on young adult offenders (age 18 to 25), while others might apply only the drug or alcohol-related charges or prostitution charges.

Initially, many prosecutors' offices limited first-offender programs to misdemeanor charges but that has changed over time. First-offender programs across the country range from minor to major charges. For example, several cities offer diversion programs for young people facing felony or misdemeanor firearm possession charges.

What Are the Rules for First-Offender Programs?

Defendants who enter first-offender or diversion programs get a chance to avoid criminal prosecution or a conviction. But this opportunity usually means the defendant will be closely supervised for a year or more and must agree to the prosecution's terms to get the benefits.

For instance, many programs require the defendant to:

  • remain law abiding (no new arrests or charges)
  • check in weekly or monthly with a pretrial or probation officer
  • stay sober and pass random drug or alcohol tests
  • remain in school or employed
  • attend recommended treatment or counseling, and
  • make timely restitution payments or child support payments.

The actual program requirements will depend on the charges and the defendant's criminal history and personal history. Typically, the defendant will sign a contract with the prosecutor's office that outlines all the requirements.

Not following the rules can get the defendant kicked out of the program and the prosecutor can proceed with the criminal case as usual. For minor violations, a defendant might get a second chance, although this second chance could come with more onerous conditions.

Federal First-Offender Programs

For those charged with a federal crime, you might want to ask your defense lawyer if the U.S. District Attorney's office offers a pretrial diversion program. Remember, diversion and first-offender programs vary by district.

Federal First Offender Act (FFOA): Drug Possession Charges

People who have been charged with certain federal drug crimes may be eligible for diversion under the Federal First Offender Act (18 U.S.C § 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 isn't 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 at the time of the offense, and who successfully completed probation, will see the record of their case expunged or sealed.

Other Federal Diversion Programs

Federal diversion programs are not limited to simple drug possession charges. Examples of other federal diversion programs, often run by Pretrial Services, include programs aimed at:

  • nonviolent defendants with a documented history of substance abuse
  • defendants suffering PTSD after military service
  • young adult offenders (ages 18 to 26), and
  • nonviolent defendants whose history shows a lack of family support or education.

Some programs don't have a specific focus but might exclude defendants who are charged with sex offenses, child exploitation or pornography, offenses involving the use of a firearm, or gang-related offense for major players.

Department of Justice (DOJ) guidelines outline certain eligibility criteria for pretrial diversion programs but leave many decisions for local offices to make, including the available outcomes. Upon completion, a prosecutor might offer to dismiss or reduce the charges or not file charges. (18 U.S.C. § 3154.)

State Diversion or First-Offender Programs

Just like the federal programs, state programs vary by city, county, or district and depend on the needs of the community and prosecution priorities. A community suffering from a high rate of opioid and other drug overdoses might focus on first-offender programs for defendants with drug addiction. Another community might be trying to get guns off the streets and out of the hands of teens and young adults and focus on firearm possession charges.

Other program examples include efforts to divert the following people out of the criminal system:

  • people with behavioral health issues
  • people charged with nuisance crimes
  • people who solicit sex workers ("johns")
  • people charged with shoplifting, petty theft, or vandalism
  • young people who are gang-involved, and
  • juvenile offenders.

Some prosecution offices offer several first-offender programs. It's a good idea to talk to your lawyer about what options are available in your area, what the program entails, and what the advantages and disadvantages are.

Consult a Lawyer

If you face criminal charges, ask your lawyer if you might be 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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