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Editorial Advisory Board: Probation not deportation

We urge the Maryland General Assembly to pass House Bill 559/Senate Bill 265, otherwise known as the Probation Not Deportation bill. The passage of this bill is critical to ensure equal protection under the law for all Marylanders. HB 559/SB 265 would amend Maryland’s probation before judgment (PBJ) statute so that it no longer triggers detention and deportation of noncitizens.

PBJ’s are widely used by judges in Maryland to give nonviolent offenders the benefit of probation without the burden of a criminal conviction on their record. Often PBJ recipients are young people who go on to live highly successful lives because they have been given this second chance.

For immigrants, like DACA recipients or green card holders, who are not yet U.S. citizens, however, the consequences of a PBJ are far more severe. This is because a PBJ, though not considered a conviction under Maryland law, is considered a conviction under federal law, leading to detention and deportation.

The straightforward remedy to this injustice currently before the Maryland General Assembly is a proposed amendment to Section 6-220 of the Criminal Procedure Article so that a PBJ can be entered when a court finds facts justifying a finding of guilt rather than entering the disposition only after a verdict of guilt. This is already done in a similar fashion when defendants enter a nolo contendere plea that is accepted by the court.

Another analogous proceeding that occurs with some regularity is a not-guilty plea on an agreed statement of facts, with the entry of a guilty verdict. HB 559/SB 265 would add another route to a PBJ: a not-guilty plea followed by a proffer of facts sufficient for a guilty verdict, but without entry of the guilty verdict.

There is nothing novel about this approach, which simply provides a new method of obtaining a PBJ, fully consistent with the existing law relating to pleas and dispositions in criminal cases.

This mechanism is already used in several other states, including Virginia, where it has been in effect since 1991. A noncitizen immigrant who receives the Virginia version of PBJ is not subject to deportation because the immigration courts do not treat it as a “conviction.”

The 4th Circuit has found the procedure sound in all respects. See Crespo v. Holder, 631 F.3d 130 (4th Cir. 2011). Yet the same immigrant who receives the current Maryland version of a PBJ is subject to deportation — notwithstanding the intent of the Maryland law — because a guilty verdict is entered.

Passage of HB 559/SB 265 would be a win for the courts, prosecutors, and defendants alike. Finality of judgments is an important and legitimate concern for courts and the state. Across the state, criminal convictions are regularly challenged years after the fact when defendants realize that they are subject to deportation.

In part, this is because immigration law is complex. The multi-step analysis required to avoid immigration consequences may require expertise not readily available to defendants and their counsel. Often, notwithstanding well-meaning efforts to structure plea agreements to avoid immigration consequences, a post-conviction or coram nobis becomes necessary to ensure that the intent of the parties is carried out.

Because this new route to a PBJ would not trigger immigration consequences, it will markedly reduce the number of post-convictions and coram nobis petitions filed to avoid immigration consequences.

Indeed, nearly all interested parties support this commonsense bill, including the Maryland Office of the Attorney General, the Maryland State’s Attorneys’ Association, the Maryland State Bar Association, the Maryland Office of the Public Defender, the Maryland Criminal Defense Attorneys’ Association, the Round Table of Former Immigration Judges, and dozens of other state and local organizations.

Yet, notwithstanding that the Maryland Judiciary “appreciates the concerns the bill is attempting to address and takes no position on the policy aims of the legislation,” it nonetheless opposes the bill.

This opposition seems to be based on vague misgivings about “due process,” apparently stemming from outdated advice provided by the Attorney General’s Office on a prior version of the bill introduced last session.

In light of amendments to the bill this session, the Attorney General’s Office fully supports HB 559/SB 265. In fact, the office submitted a detailed, thoroughly reasoned three-page legal memorandum to the House Judiciary Committee dated Feb. 11, 2022, allaying all of the “due process” concerns expressed by the Maryland Judiciary.

This bill presents an opportunity for Maryland to ensure that the Federal Immigration Statute does not subvert the true intention of the Maryland state statute, which is to treat a PBJ as a nonconviction. Until this bill becomes law, that intention will be defeated when the defendant is a noncitizen and the Potomac River determines whether or not someone is subject to deportation.


James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Michael Hayes

Julie C. Janofsky

Ericka N. King

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.