What Is Deferred Adjudication?

Political power in the United States has historically been created by the convergence
of resources and people. The accumulation of resources is necessary to develop and
maintain a power structure for political purposes, and a network of people is necessary
to construct, and then execute the objectives of any political movement; whether it is
for control of land, natural resources, people, or ideas. In this conversation, I
will deconstruct the politics of the “Deferred Adjudication” criminal justice system
of the state of Texas, explain the necessity to bring about its demise, and, hopefully,
educate the listener about the control this system exerts over the population of the
State of Texas. Deferred adjudication was not a part of the criminal justice system in Texas until
the state was forced to reduce its prison population to comply with an order issued
by a federal judge. This order was issued when the state could not prove that its
prisons were operated in a constitutional manner, and the court determined that changes
had to be made to the state’s prison system to protect constitutional rights of the
prisoners that were not forfeited when they entered the state’s prison system. An
important part of the ordered remedy required the state to take steps to reduce the
number of prisoners housed in the state’s prisons in relation to the number of prison
beds that were available, and to make whatever changes necessary to keep it that way.
That meant immediately reducing the population through the release of prisoners, and
reducing the number of prisoners that would enter the prison system, until it could
be determined that the state had corrected the conditions that existed before legal
action was brought to the federal courts. Additionally, if the state wanted to house
the same number of inmates as the state’s prisons housed when legal action was brought
against it, new prison beds would have to be constructed. The state’s prison system was
placed under the control of a federal administrator, and would remain under the control
of a federal administrator until the state could prove that it had complied with the order. The state sought, and received authority from the voters to build new prisons. During
their construction, the state created, through the legislature, a new criminal justice
system that operated within the existing one, whose sole function was to serve as a prison
population management tool. This new criminal justice system provided less protection to
the public from criminals, but enabled the state to comply with the court’s order. It
stripped those who entered it of numerous constitutional rights, including the right to own
firearms, without a court placing a final determination of guilt or innocence on the
defendant. It placed defendants under the supervision of a court, making officers of the
court, de facto prison population managers, without independent oversight or control of any
part of the Executive Branch of government. As such, the courts themselves created their
own political subdivision within state government, with no fiscal or legal accountability
to the state’s prison system itself. In other words, the legislature gave Executive Branch
powers to the Judicial Branch of state government, clearly in violation of both the Texas
state constitution, and the United States Constitution. Because the state had been ordered
to take steps to control the prison population and keep the number of prisoners underneath
the population cap the court created, the court overlooked this constitutional issue and
disregarded the Separation Of Powers sections of the United States Constitution, which created
the legal authority upon which it is based, to serve the convenience of the State of Texas so
that it could more easily comply with the court’s order and judgment. Because this disregard of both constitutions served the interests of the State of Texas, the
state did not object to this assault on one of the most fundamental principles that is
contained within both the state and federal constitutions that are there to prevent any
branch of government from exercising powers that are reserved for another branch of government.
But, even if it could be said that the court had the legal authority to permit the state to
disregard its own constitution in order to comply with the order of the court, once the court
released the state from any oversight, any actions authorized by the court for compliance with
its order would no longer be authorized by the court, and would have to stand on their own
constitutional basis. Therefore, not only is the state’s deferred adjudication system wholly
unconstitutional because it gives powers to the Judicial Branch of government that are reserved
for the Executive Branch, namely the authority to manage prisons, which has NEVER been authorized
in the entire history of the United States, but the authority that had been granted to the state
to create such an alternative sentencing scheme ceased the day that U.S. District Judge William
Wayne Justice released the State of Texas from federal oversight of its prison system. This brings us to today. What taxpayers in Texas are saddled with today is an unconstitutional
prison system that has created an entire political underclass of hundreds of thousands of Texans
who will never have the same rights they were guaranteed at their birth; even though they have
never been convicted of a crime, whose ability to affect political decisions in the state have
been undermined by a system that has no constitutional authority. A system that costs Texas
taxpayers hundreds of millions of dollars each year, taking badly needed money away from the
educational needs of our citizens, and has created an impasse to resolving the equalization of
public school funding for over ten years. A system that continues to employ thousands of people
who have been denied employment in law enforcement due to misconduct, unlawful activity, and
other prohibited actions. This is a political system that should not be in existence today. What can be done about this? Well, one of the best things that we can all do is to educate
ourselves about “deferred adjudication”. But once we educate ourselves, then what? Is it
possible for one person to change an entire government subdivision? The answer to these questions
is a singular one: When we work together, we can change things. But how can change be brought to
this one thing that has devastated so many families financially, and in numerous other ways, when
the powers are entrenched and in control of the political systems that allow them to continue to
function? When people combine their efforts to confront oppressive government, change will occur.
It is the basis of our own country. In this regard, I believe that there is one person who can
bring people together to fight, and ultimately overcome this blight upon the citizens of the State
of Texas. That person is my friend, Rob Sandifer. Over several legislative sessions, it is hard
to ignore the impact that Rob has had on so many Texas lives, and he has not given up the fight.
I believe that the cause of ending deferred adjudication in the State of Texas is the single most
critical issue facing citizens in Texas, and the person that I believe is the most committed to
seeing it end is Mr. Rob Sandifer. But, he cannot fight this battle alone. He needs your help.
If you believe that all Texans deserve to have equal rights, that the right to be an equal citizen
in society is one that ALL TEXANS ARE BORN WITH, and that no citizen should be deprived of their
civil rights UNLESS they have been CONVICTED of a crime in a FINAL DETERMINATION BY A COURT, then
I urge you to join Rob as he works to make the changes that must be made. He has my support.
Will he have yours? William L. Castle President, B.C. Expertise Author and Researcher

Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction, October 2005
TALE #5 - Juicial Expungement, Sealing, And Set-Aside
STATE	All Or Most Offenses Eligible	First Offenders Only	Probationary Sentences (Incl. Deferred Adjudication)	Misdemeanors Only	Pardoned Offenses	No Provision For Expunging Adult Convictions
Alabama						X
Alaska			Court may suspend imposition of sentence and “set aside” conviction after successful completion of probation, but no expungement.
Arizona	“Set-aside” available following completion of sentence for all but violent and sex offenses; generally relieves from all penalties and disabilities, but may not deny conviction.
Arkansas		See next column	Deferred adjudication for first offenders; expungement upon successful completion of probation.		Expungement must issue following pardon for all but a few serious offenses.
California			Set-aside for probationers, misdemeanants; rights restored and disabilities removed, may be used as predicate offense, disclosed in certain contexts. Deferred sentencing for felony convictions, treated as misdemeanors following probation. No expungement or sealing ex. for certain under-age misdemeanants.
Colorado						X
Connecticut			Six programs for deferred adjudication may result in “erasure” of record.		pardoned conviction “erased;” after 3 yrs records destroyed; may deny conviction
Delaware						X
District of Columbia						X
Florida			Adjudication may be withheld and defendant placed on probation for second and third degree felonies if requested by prosecutor or if court makes findings of mitigating circumstances; no conviction results	non-violent misdemeanors may be sealed and/or expunged
Georgia			Adjudication deferred pending completion of sentence (including prison); rights restored, may deny conviction, but no expungement or sealing. Predicate offense
Hawaii		Non-violent first offenders; restores rights
STATE	All Or Most Offenses Eligible	First Offenders Only	Probationary Sentences (Incl. Deferred Adjudication)	Misdemeanors Only	Pardoned Offenses	No Provision For Expunging Adult Convictions
Idaho			Set-aside upon successful completion of probation; restores rights but does not expunge or seal.
Illinois				Sealing for misdemeanors and two minor felonies only (marijuana and prostitution)
Indiana					Pardon “wipes out guilt” and automatically becomes basis for expungement. (Limited admin. sealing also available from state police 15 yrs following completion of sentence.
Iowa		See next column	Deferred adjudication followed by expungement for first offenders.
Kansas	Waiting period of 3-5 yrs; serious violent and sex offenses excluded. Presumption in favor of expungement if court makes certain findings. May deny conviction, ex. for certain employment and licensing contexts. No guns, predicate offense.
Kentucky			Pretrial diversion for Class D felonies; no conviction results, but expungement may or may not be available.	Misdemeanants and Class D felony drug possession convictions may obtain expungement after 5 yrs.
Louisiana			Deferred adjudication for certain misdemeanor and felony convictions sentenced to probation; record expunged but remains available for law enforcement and certain licensing purposes. Predicate offense.
STATE	All Or Most Offenses Eligible	First Offenders Only	Probationary Sentences (Incl. Deferred Adjudication)	Misdemeanors Only	Pardoned Offenses	No Provision For Expunging Adult Convictions
Maine						X
Maryland			Deferred adjudication available for certain crimes, record may be expunged		Non-violent first offenders pardoned may obtain judicial expungement
Massachusetts	Felonies may be sealed after 15 years if no subsequent conviction (misdemeanors 10 years), but no expungement. May deny conviction in employment application, but no guns, predicate offense.				Pardon seals automatically, recipient may deny conviction.
Michigan		Set-aside for first offenders 5 yrs following sentence or release from prison. Employment-related uses, predicate.
Minnesota	Trial court has common law expungement authority; balancing test applied.		Deferred sentencing for felony convictions, treated as misdemeanors following probation.	Minor marijuana convictions only statutory expungement authority.	“Pardon extraordinary” has effect of “setting aside and nullifying” conviction, but does not expunge or seal record. Recipient may deny conviction.
Mississippi			Deferred adjudication followed by dismissal, expungement of arrest records for nonviolent first offenders (ex. drug trafficking); expungement of conviction for first offender misdemeanants.
Missouri			Sealing for some probationary sentences, becomes “non-conviction” record, need not be reported.	First time alcohol-related misdemeanors, after 10 yrs
Montana		See next column	Deferred sentencing for first felony offenders and misdemeanants, after which access to records limited but not expunged.			X
Nebraska			Set-aside for probationers “nullifies” conviction, removes “all civil disabilities and disqualifications” but does not expunge or seal record
STATE	All Or Most Offenses Eligible	First Offenders Only	Probationary Sentences (Incl. Deferred Adjudication)	Misdemeanors Only	Pardoned Offenses	No Provision For Expunging Adult Convictions
Nevada	Seven to 15 yrs waiting period, depending on offense, court may seal all records, if no subsequent arrest; conviction may be denied (with law enforcement and firearms exceptions). Three year waiting period for misdemeanants, no waiting at all for probationers honorably discharged. Other special sealing statutes for drug –related offenses. No guns, predicate offense.
New Hampshire	Less serious non-violent offenses may be “annulled” after waiting period of 1 to 10 yrs. Recidivists wait longer. May deny conviction, questions limited. Predicate offense.
New Jersey		Expungement for first offenders after 10 yrs. May deny ex. in connection with judicial and law enforcement jobs.
New Mexico			Deferred sentencing is available except in first degree felony cases; rights restored but conviction remains. No expungement.
New York						Court may issue certificate of good conduct for misdemeanants and non-prison sentences
North Carolina		See next column	Deferred adjudication for first-time minor drug offenders. No conviction results if probation successfully completed. No predicate effect. Expungement of records only if under 21.	First offender misdemeanors committed under age 18, and first offender alcohol-possession misdemeanors committed under age 21, after 2 years.
North Dakota			Minor felony convictions may be “knocked down” to misdemeanor, conviction set aside after completion of probation, but no expungement.
Ohio		First offender “sealing” after 1-3 yr. waiting period for minor nonviolent convictions, if court finds rehabilitation. Applies to federal and out-of-state. May deny if improperly questioned. Predicate offense.			Pardon “erases” conviction, may be denied, basis for judicial expungement
STATE	All Or Most Offenses Eligible	First Offenders Only	Probationary Sentences (Incl. Deferred Adjudication)	Misdemeanors Only	Pardoned Offenses	No Provision For Expunging Adult Convictions
Oklahoma		See next column	Deferred adjudication and probation leading to expungement for first offenders	Misdemeanants after 10 years	non-violent first offenders who have been pardoned
Oregon	Less serious non-violent offenses may be “set aside” after waiting period of 1 to 10 yrs, no other conviction in past 10 yrs, or arrest within 3 yrs. Order must issue unless court finds it would not be “in the best interests of justice.” May deny conviction. Predicate offense.
Pennsylvania	Expungement at age 70 if no arrests for 10 yrs.		Deferred adjudication of guilt, expungement after “ARD” probation		Pardon basis for judicial expungement.
Puerto Rico	Broad expungement authority for all offenses, including violent felonies, after waiting period of six months to 20 years, if applicant demonstrates “good moral reputation in the community.”
Rhode Island		Nonviolent first offenders only, after 5-10 yrs. Allows denial ex. for certain jobs and licenses. Predicate offense.
South Carolina		See next column	Deferred adjudication for first-time minor drug offenders. No conviction results if probation successfully completed. No predicate effect. Expungement of records if under 25.
South Dakota		See next column	Deferred adjudication for first offenders, results in no conviction, no predicate effect, records sealed.		Pardon seals record automatically
Tennessee						X
Texas					Pardon basis for judicial expungement
STATE	All Or Most Offenses Eligible	First Offenders Only	Probationary Sentences (Incl. Deferred Adjudication)	Misdemeanors Only	Pardoned Offenses	No Provision For Expunging Adult Convictions
Utah	Most offenses may be “expunged” after 3-10 yr waiting period, 20 for recidivists. Order must issue unless court finds it would be “contrary to public interest.” May deny conviction. Predicate offense.
Vermont			Deferred sentencing and diversion both available at DA’s discretion, may result in sealing of record, may deny conviction.
Virgin Islands			Non-violent first offender probationers, record expunged; drug possession offenses if under age 21.
Virginia						X
Washington	All but most serious offenses may be “vacated” after waiting period of 1 to 10 yrs. Conviction erased, limited predicate effect. Special provisions for probation and misdemeanor offenses.				Pardon vacates conviction automatically.
West Virginia					Pardon as basis for judicial expungement after 2 yrs, and 20 years following completion of sentence. May not be considered for licensing and teaching
Wisconsin				Misdemeanor convictions may be expunged only if committed before age 21.		X
Wyoming			Deferred sentencing for first felony offenders and misdemeanants; specifically prohibits expungement.	Expungement of misdemeanors for purposes of regaining firearms privileges
Federal				Expungement for misdemeanor possession of marijuana only.
STATE	All Or Most Offenses Eligible	First Offenders Only	Probationary Sentences (Incl. Deferred Adjudication)	Misdemeanors Only	Pardoned Offenses	No Provision For Expunging Adult Convictions