Most people think that the first time they get in trouble, the justice
system will give them a break since they don't have a prior record.
Sadly, the request for leniency has different results depending on where
that person goes to court. For many years some Virginia courts refused
to enter deferred dispositions or take a case under advisement unless
there is a law that allows such a finding. The Virginia Code only has
express first offender status for the following crimes: Underage Possession
of Alcohol (Virginia Code § 4.1-305(F)); Domestic Violence (Virginia
Code § 18.2-57.3); and Possession of Drugs (Virginia Code §
A criminal conviction is a devastatingly permanent matter. Virginia convictions
cannot be expunged and they do not come off of a record like a speeding
ticket. Many otherwise law abiding citizens have occasions when they make
a bad decision. Alcohol and trying personal circumstances can lead to
bad judgement. There is no reason why a mistake someone makes in his twenties
should prevent him from getting a job when he is forty or fifty years old.
THE BAD DAYS:
Lawyers and citizens were frustrated that a person could keep a clean record
after a felony cocaine charge but not after a $5.00 shoplifting charge.
Most judges in Virginia robotically followed the law on this issue. Despite
the tireless work of a great lawyer, there was limited discretion. If
the evidence was sufficient for guilt, a court would find a defendant
guilty; permanently affecting his record. Regardless of how clean a person's
record once was, one mistake could permanently affect him. The Virginia
Court of Appeals directed trial judges to act this way. The Appeals Court
ruled that trial judges could not decline to convict a person based on
a belief that a defendant deserved leniency.
In some cases prosecutors realized how unfair this was. A good lawyer could
negotiate a resolution that did not result in a permanent conviction.
In this small number of jurisdictions common sense prevailed over case
law. Some judges and prosecutors worked around the Appeals Court by continuing
cases to allow a defendant to complete a probationary period, crime awareness
classes or community service. At the end of that term, the court would
dismiss the charge.
FINALLY A CHANGE
In 2011, the highest court in the state finally changed the law. The Virginia
Supreme Court held Virginia courts have the "inherent discretionary
authority" to take a matter under advisement “and to continue
the case for future disposition, subject to such lawful conditions as
the court might proscribe.” In 2014, the Virginia Supreme Court
issued another decision that gave judges even more power to craft unique
dispositions for citizens that deserved a second chance.
WHAT HAPPENS NOW:
Courts and prosecutors have the authority to do the right thing. A good
lawyer can negotiate to reach a resolution that keeps a person's record
clean. In most situations (other than drugs, domestic violence and alcohol)
there are still no specific first offenders programs. Attorneys must be
creative and persuasive to get what their clients need.