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First-time offender option in Tennessee may vanish

7:00 AM, Mar 30, 2010   |    comments
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By Clay Carey, 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.

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