What Is a Deferred Prosecution Agreement (DPA) in North Carolina?
A Deferred Prosecution Agreement is an agreement between the government and the defendant to hold all charges against the defendant in abeyance (essentially yield) pending successful completion of the deferred prosecution period. In NC, deferred prosecutions are available for drug offenses. These are also called "Drug Diversion Programs" by some counties. The purpose of the Deferred Prosecution program in NC is to encourage/require drug offending or alcohol offending persons to seek treatment through rehabilitation programs in exchange for the State of North Carolina agreeing to postpone bringing criminal charges.
The ramifications for accepting a deferred prosecution agreement can be significant. If accepted, the charges will be dismissed after successful completion of the probationary term (24 months in most cases) . If the defendant fails to successfully complete the probationary term, the charges can then be brought against the offender, as if the agreement never existed.
Many prosecutors employ this program because it provides some avenue for rehabilitation amongst a class of persons who otherwise would be facing traffic court in front of a large judge’s bench, as well as a large docket book. Drug and alcohol abuses are significant criminal problems, and without programs such as this, offenders may simply be processed through the system without the opportunity for rehabilitation. On the other hand, the deferred prosecution program is not appropriate for all defendants, and those who are closer to first-offenders in occasional need of treatment for drug or alcohol use should not automatically qualify for this program.
The deferred prosecution agreement provides a mechanism for both prosecuting certain crime types and helping rehabilitate the offenders in an efficient manner.
North Carolina Laws Pertaining to DPAs
The legal framework surrounding Deferred Prosecution Agreements in North Carolina is rooted in the state’s statutory and procedural provisions. Unlike many federal DPA requirements, North Carolina state law does not explicitly address the use of DPAs by prosecutors. However, the North Carolina Rules of Professional Conduct provides ethical guidance that indirectly addresses the use of DPAs.
The North Carolina General Assembly has not codified specific provisions for formalizing DPAs, nor is there any statutory language in the N.C. General Statutes regarding deferred prosecution in a criminal case. Instead, the N.C. General Statutes simply mentioned Deferred Prosecution Agreements as an option for a prosecutor in N.C. Gen. Stat. §14-63.3, thus giving the District Attorney the discretion to defer prosecution altogether or to suspend prosecution. As previously discussed, while N.C. Gen. Stat. §14-63.3 refers to the authority of a public official to grant a Deferred Prosecution Agreement, the statute does not shed light on how one is to proceed in entering into a DPA. This omission has led to a lack of uniformity among the state’s seventeen judicial districts in how DPAs are granted where prosecutors have been used them as an alternative to traditional plea agreements.
Furthermore, N.C. Gen. Stat. §90-96 provides authority to grant an absolute judgment "in accordance with [the] terms of the plea agreement" that is made by the District Attorney. This section of the General Statutes outlines the eligibility requirements for defendants who have entered guilty pleas that are subject to a plea agreement between the defendant and the District Attorney. While the North Carolina General Assembly has defined the requirements for entering into a plea agreement, failure to address the procedural requirements and permissible terms of a Deferred Prosecution Agreement creates a legal vacuum. It is in these gaps of ambiguity that prosecutors have the greatest amount of discretion and flexibility in the terms of a "DPA." Thus, it is of fundamental importance for defendants considering such an agreement to understand this non-uniformity of authority granted to District Attorneys across the state, and adapt their strategy accordingly.
Although state statute does not address the issue of DPAs directly, the N.C. Rules of Professional Conduct provide some guidance and standards for prosecutors "engaged" in DPAs. Specifically, Rule 3.8(g) addresses the conflict between a prosecutor’s "duty to see that the defendant is accorded procedural justice [] and his or her personal opinion as to the appropriate result in the matter." When entering into a DPA, prosecutors must always keep in mind their duty to act "fairly." Further, the ethical considerations of the offense level charged, any possible reduction of charges, dismissal of charges, and eligibility for release conditions should always be taken into account when crafting a plea agreement or a DPA.
In Emilia v. United States, the Fifth Circuit outlined a list of substantial benefits that can be considered when a prosecutor is engaging in plea bargaining, which are applicable here as well. These include: (1) dropping other charges; (2) reducing the level of the charged offenses; (3) agreeing to recommend or stipulate to a particular sentence; (4) recommending a sentence at all, and deferring prosecution and promising to discharge the defendant after a period of conditional freedom constitutes a benefit. Many of these benefits are defined by the individual DPAs, which vary from county to county. Because District Attorneys have wide discretion in granting these agreements, defendants must be cautious and well-informed when deciding whether or not to enter into a DPA.
Who Is Eligible for a DPA?
Generally speaking, there are two types of offenses that are eligible for Deferred Prosecution Agreements in North Carolina. The first are what you might call "crimes of hope:" offenses for which we have seen exceptional success in applying this innovative approach to the question: "how do we keep these good people out of the system and on the right path?" These might include Larceny (more than 60% of those in the program in 2016 were larceny charges), Possession of Drug Paraphernalia and Misdemeanor Drug Possession. These offenses due to their nature are ones that we have focused our energy on since the advent of the DPA during the last decade. We know that the offender’s primary risk is the temptation to reoffend – so, the idea is to not let them get arrested on a new case and instead to plug them into programs like the Recovery Court that are medically oriented and designed to reduce the risk of further criminal behavior.
The second category of eligible offenses would be those that can be classified as "discretionary." After the crux of the charges has been decided by the Court based on the defendant’s prior record level and history, the next layer of analysis to make that case more individualized is a determination of jail time eligibility: does this person "qualify" for jail time, or are they "program eligible?" Many Class 1 and 2 misdemeanants are in the haste to push their case forward and not think of this aspect of their case until much later – and, often at that time, they may qualify for the DPA. Traffic offenses also make up a large percentage of those who are in the DPA program as well (a defendant can have one DWI conviction and still be eligible for the program if the current offense is otherwise eligible).
Obtaining a DPA in North Carolina
In North Carolina, a defendant seeking a deferred prosecution agreement will first have their criminal attorney reach out to the state’s prosecutor before their first court appearance. The prosecutor will decide whether or not they want to offer a DPA to the defendant. If they do, they will then file an Application for Deferred Prosecution as well as a notice waiving any defects based on a speedy trial violation and requesting a reference for pretrial release.
Once the paperwork is filed with the court, the defendant will be called before the judge during the motion session. If the judge approves the Application for Deferred Prosecution, they will set terms of the DPA. In addition, they will set a date for the next court appearance for both the defendant and the prosecutor in order to inquire about how the defendant is doing under the DPA.
The Application for Deferred Prosecution must be signed by both the defendant and the prosecutor. It will also give the defendant’s written consent to speak with a pretrial release officer. The pretrial release officer will then explain to the defendant how pretrial release supervision operates. Pretrial release can include any of the following conditions: personal recognizance bond, unsecured bond, written promise, or secured bond. If the officer determines a defendant can be placed on a DPA, they will present the information to the presiding judge to review.
Advantages of a Deferred Prosecution Agreement
A fortunate benefit often included in the Deferred Prosecution Agreement is that all charges and active warrants are dismissed if the defendant successfully completes their probation period.
This means that a DPA not only operates like a normal plea and probation for immediate purposes, but also clears the defendant’s criminal record going forward. Completing the probation is like effectively getting past any charges, even charges that were held open by agreed plea. For example, check this out: many times someone enters a DPA to resolve felony drug charges on their record, and then subsequently gets charged with a DWI. As long as the individual successfully completes the DPA within the time set for probation, no longer will a conviction for the felony drug offense be listed on their criminal record and the person will not be subject to sentencing enhancement pursuant to the North Carolina sentencing statutes for a subsequent felony conviction.
From a practical viewpoint this essentially means that the DPA effectively eliminates the prior felony conviction if successfully completed. There are still some criminal checks (FBI , etc.) where the record may still show prior criminal convictions and the subsequent DPA, but for most criminal record searches this DPA will not show on a background check.
On a public policy level, it can make repayment or restitution much more likely than in cases where a defendant receives an actual conviction. Generally speaking, the defendant has to pay the amount of any money he/she supposedly obtained illegally as a part of a DPA, issued when the DPA was issued. This means that there is actually a greater likelihood the defendant will actually repay the money and not be able to claim bankruptcy. Additionally, a DPA has a more certain restitution amount which is completely different than using a normal plea disposition and shooting for a probation sentence. Finally, the benefit is that it allows for the resolution of more cases without the necessity of trial time.
Disadvantages and Controversies
While Deferred Prosecution Agreements (DPAs) provide the opportunity for individuals to avoid criminal convictions, they are not without their critics. Questions about fairness, accountability, and public perceptions of DPAs have all arisen.
As noted in an article from The Atlantic, the continued growth in DPAs has raised concerns that privileged or politically connected individuals receive either leniency or preferential treatment. A 2010 report by the U.S. Sentencing Commission on the Treatment of Similar Offenders found that the government sought DPAs in cases involving racial minorities only 32 percent of the time, compared with 42 percent in cases involving white defendants.
Concerns also have been raised about how DPAs may circumvent the adversarial process essential to ensuring a fair outcome for all participants. Critics argue that a lack of transparency can often result in inconsistent term lengths, and that DPAs can prevent public access to the official court record detailing the crime and punishing the offender.
Another criticism of DPAs relates to the potential lack of full accountability, due to the fact that DPAs and the records of those who enter into them are kept outside of the public record. In North Carolina, those who successfully complete their DPA program do not have a conviction recorded on their criminal record. Even though they have completed the program, critics argue that some individuals may have escaped a critical form of accountability.
Judges have also raised criticism of how DPAs circumvent court involvement in the defendant’s case. For instance, Judge Wieck of the 5th District Court of Appeals in Texas recently stated over the course of three years that he has seen 80 percent of juvenile cases reach a DPA agreement, and called this "frightening." Judge Wieck noted how he has dismissed DPAs in juvenile cases where the alleged crime involved a sexual act, gun possession, or drug possession by a gang member — none of which are eligible for a DPA.
DPAs also have attracted criticism for being perceived as "pay-to-play" deals that essentially allow businesses to buy their way out of criminal prosecution. Such criticism is particularly levied at DPAs entered into with large organizations, such as banks. Some critics believe that this could actually embolden many white-collar criminals who may be tempted to risk their legal penalties if they can essentially buy their way out of them.
Critics have raised specific questions about the possible negative impacts on minority groups from a potential lack of community support for agreed-upon penalties. DPAs are often entered into for a few reasons: to secure financial obligations without the need for a civil trial; to ensure an organization implements recommended changes in policy or procedure; and to avoid the costs associated with an extended civil fight. The costs associated with a prolonged civil trial can be substantial, as can the negative publicity that may accompany the trial.
The National Association of Criminal Defense Lawyers has actively opposed DPAs in North Carolina particularly in the wake of a controversial case involving North Carolina State Senator Wesley Meredith.
Common Questions About DPAs
This FAQ section is to help those who have questions about DPAs in North Carolina, but might be afraid or reluctant to ask them for whatever reason.
Is a DP not a conviction?
You have to fully comply with the terms of the DP for it to have no effect on your criminal record, so in this sense you could say that it’s not a conviction because the court has agreed to forego convicting you of something. But you can be put in jail as a violation, so in this sense it does function as a conviction. They will put you through a Rite of Passage, and if you mess up there, it counts as a guilty verdict because you failed to complete the program. You can also be put in jail for the duration of your probation term as part of a DP, which would functionally be the same as a guilty plea.
Is there a division of DP crimes versus probation crimes?
Yes, there is. If you have multiple cases pending, the State can offer a DP on one and a Plea on another – or even a Pretrial Diversion on another case – and those three positions are completely independent. Each case has its own file and prosecutor. If you mess up on one of your DP terms, that case will begin prosecution immediately just like a plea would. The State’s offer will be contingent on each DP being accepted. If one DP is rejected, then their offer will be retracted entirely. That said, you can negotiate for a deal on one of those deals if you like.
Can you end up getting a Plea Offer or a Trial after accepting a DP?
Yes. There are many situations where someone decides to enter into a DP out of an abundance of caution and then gets the DP terms and thinks, "I haven’t done anything wrong, why am I bound by these terms with no guarantee that the case is going to get this good of a result anyway? I am going to fight this case." If that happens, you’re free to talk to a whole different set of prosecutors about your case and try to negotiate a PL or to take it to trial. In most cases, the DP contract prohibits you from petitioning the court for an early dismissal of the charges, but the State can dismiss the charges at any time.
What happens if I follow the DP terms and go to Rite of Passage/Traffic School, but a term is violated anyway?
Most DP cases have a classwork portion with some sort of Drug School or Traffic School and a Rite of Passage (often community service). To be found in violation of the terms, the State has to show that you basically failed to pay enough attention to those things, or that there is intentional tampering such as failing to complete a term of school on purpose or giving your spot to someone else or tampering with the school records. Therefore, the phrase "failed a drug school" does not quite mean you actually failed a drug school, but you failed to make enough of an effort of attending it.
Deferred Prosecution Agreement Examples
Examples of DPAs in The Real-World in North Carolina
Deferred prosecution agreements have been put into practice in a number of higher-profile cases. For example, in the case of State v. White (2004), the defendant was charged with a number of sexual offenses involving a minor, but in exchange for entering into the DPA, he was allowed to enter a plea to a misdemeanor. The defendant was evaluated for competency, whereupon he admitted committing the acts, and did not take issue with the fact that he had a sexual addiction that he needed to control. Over the next 60 days, he maintained employment and attended counseling. According to the 2008 CPA Journal: "The defendant also submitted a letter from his psychiatrist and a discharge summary letter from an in-patient psychiatric facility. Ultimately, the defendant satisfactorily completed all terms of probation." After he satisfactorily completed all the terms of the DPA, the original charges were dismissed . In State v. Sanchez-Moore, 2006 NC App 317, 634 SE 2d 569, a defendant left the state shortly after his child’s birth, to which he was ordered by the court to return every year to keep his visitation rights. However, he failed to return to the state just after his child’s third birthday. The defendant was indicted on felony abduction of a child, but a DPA was offered whereby the indictment would be dismissed and the defendant would submit to testing and evaluation. Following the completion of the DPA, the indictment was dismissed. These are just two instances where a DPA was successfully implemented in North Carolina. The defendant in both cases was treated with dignity in a manner that allowed him to reclaim his reputation. Today, he is eligible to seek certain types of employment and can now support himself and his family in a manner that benefits North Carolina as a whole.