Some states may use a “sentencing” option referred to as deferred prosecution. Such sentences, which are generally authorized by a state’s statutes, allow the offender to admit under oath or stipulate to the facts of the criminal conduct, but defer prosecution conditioned upon the offender completing some type of treatment program or meeting other conditions. Generally, if the offender successfully complies with the court’s order, the case is dismissed and no criminal judgment is entered. If the offender fails to comply with the court’s order, the court may enter a judgment of conviction and proceed to criminal sentencing.

The question in deferred prosecutions is whether the offender is covered by the ICAOS because there is no conviction, since the offender is in a “pretrial” status. However, the Commission has interpreted its rules to apply to such offenders. See ICAOS Advisory Opinion 6-2005. In concluding that the Compact covers such offenders, the Commission opined that there is little functional difference between a “deferred prosecution” and a “deferred sentence.” In both cases, the offender is generally required to stipulate to the facts of the underlying criminal conduct. While in the deferred prosecution context, the court does not enter a judgment of conviction and then suspend sentencing (as is the case in deferred sentencing), the court nevertheless accepts the offender’s admission to certain facts and places the offender on a probationary-type status. Unlike a pretrial offender, whose guilt has not been established by trial or admission, the deferred prosecution offender has admitted to the essential facts of their conduct and no longer enjoys the status of “innocent until proven guilty.” As the Commission has noted, “In determining that Rule 2.106 applies here [to deferred prosecutions], we are considering the action actually taken by the offender and the court, rather than the label used by the legislature.” Considerations in determining whether the Compact would cover an offender subject to a deferred prosecution program include, but are not limited to:

• Is the offender required to make material and binding factual admissions before a court concerning the circumstances of the case such that practically there is no question that an offense has been committed?
• Upon violation of the terms and condition of the deferred prosecution program, is the offender returned to court and in jeopardy of having a conviction entered without trial?
• Is the offender, as a condition of participation in a deferred prosecution program, required to waive material rights concerning future court proceedings, such as the right to contest the facts, confront witnesses and offer exculpatory evidence?

An offender in a deferred prosecution program that includes some of these elements, particularly those regarding admissions of material fact and waiver of rights, would be subject to the Compact. By contrast, an offender in a deferred prosecution program that is run exclusively as a prosecutorial diversion program and does not involve the courts or require an offender to waive fundamental rights in future proceedings is likely not covered by the Compact.