Probation Before Judgement – a Positive Updating of the Statute

The Probation Before Judgement Statute, Criminal Procedure 6-220, was updated several years ago to allow a person to be sentenced to a period of incarceration as a condition of the Probation Before Judgement. Why you ask, would a Maryland Criminal Defense Attorney think that amending a statute to allow for someone to be incarcerated when the previous iteration of the statute did not allow for incarceration, is a good thing?

To understand the answer it is important to first understand what Probation Before Judgement is. The best way to explain what Probation Before Judgement is, is to explain what it is not. Probation Before Judgement is NOT a conviction under Maryland Law. Under the statute a judge has the authority to strike out the guilty finding in most any criminal case. (There are a few crimes for which probation before judgement is not available including first, second and third degree sex offenses, first degree murder as well as second or subsequent convictions for DUI or CDS cases if the first conviction resulted in Probation Before Judgement).

The benefit of Probation Before Judgement is that a person who receives Probation Before Judgement can honestly say or, for instance put on a job application, that the person was not convicted in the case and has no criminal record. A person who receives Probation Before Judgement is also entitled by law to have the matter expunged in three years or, for good cause shown, sooner. Prior to the amendment the statute only allowed for a judge to incarcerate a person who received Probation Before Judgement in a few of the counties in the State. The reason I say that it is a good thing that the judges are now allowed to incarcerate someone is that it will and has resulted in more people receiving Probation Before Judgement instead of having permanent criminal records that can never be expunged.

It is obvious that having a permanent criminal record would be a significant impediment to one’s career and life. Prior to the amendment if a judge believed that a period of incarceration was necessary, he/she had no choice but to let the conviction stand because it was not an option to grant Probation Before Judgement and sentence person to jail. (Sentences could be modified at a later date to Probation Before Judgement if a timely motion to modify sentence was filed in the case. But too often these motions either don’t get filed, are followed through with or are denied by judges who are sometimes reluctant to change their original sentence). Since the amendment to the statute, judges routinely sentence first time offenders in drug cases or other non-violent offenses to short sentences ( a few days or months) in exchange for not have to spend the rest of their lives as a convicted criminal. The short period in jail is a very small price to pay to avoid that permanent scarlet letter.

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