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During the 2022 General Assembly session, we urged passage of House Bill 559/Senate Bill 265, to broaden the scope of the current Probation Before Judgment (PBJ) law. The bill had broad support, was favorably passed in both chambers, but unfortunately perished in the waning moments of the legislative session.
The bill is back this session, this time with bipartisan sponsorship (Republican Sen. Chris West and Democratic Del. David Moon) and prospects of widespread support once again. We urge the legislature to take up the bill promptly and ensure its timely passage.
PBJ’s are widely used by judges in Maryland to give first-time and 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 citizens who receive the benefit of a PBJ, there still may be severe consequences not contemplated or intended by the General Assembly. They may encounter difficulty obtaining federal employment, security clearances, and certain professional and commercial licenses.
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: detention, deportation, and inadmissibility for reentry. This is because a PBJ, though not considered a conviction under Maryland law, is considered a conviction under federal law because it is imposed after a guilty verdict.
The straightforward remedy to these injustices is a simple 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. The bill 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 has already been used for decades in several other states, including Virginia, Pennsylvania, and New York. A noncitizen immigrant who receives the Virginia version of a PBJ is not subject to deportation because the immigration courts do not treat it as a “conviction.” The Fourth Circuit has found the procedure sound in all respects. See Crespo v. Holder, 631 F.3d 130 (4th Cir. 2011).
Yet the same person who receives the current Maryland version of a PBJ is subject to deportation and other unintended consequences — notwithstanding the intent of the Maryland law — because a guilty verdict is entered.
Passage of the bill 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 Maryland, criminal convictions are regularly challenged years after the fact when defendants realize that they are not eligible for certain jobs or licenses notwithstanding their having received a PBJ.
For noncitizens, challenges typically arise when they learn months or years later 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 employment, licensing, or immigration consequences, it will markedly reduce the number of post-convictions and coram nobis petitions filed.
At the 2022 legislative session, nearly all interested parties supported 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. We anticipate that these and other groups will support the bill again this session.
This bill presents an opportunity to ensure that federal law does not subvert the true intention of our state statute, which is to treat a PBJ as a nonconviction. Now is the time to tweak the PBJ law so that professionals, truck drivers, and those persons otherwise eligible and qualified to work for the federal government are not treated as criminals even though they had been told their PBJ was not a conviction.
Until this bill becomes law, the intent of our PBJ law will be defeated most blatantly when defendants are noncitizens and the Potomac River determines whether they are deported from Maryland or allowed to remain in Virginia.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Gary E. Bair
Andre M. Davis
Eric Easton
Arthur F. Fergenson
Nancy Forster
Susan Francis
Leigh Goodmark
Roland Harris
Julie C. Janofsky
Ericka N. King
Susan F. Martielli
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.
