May-June 2013

Tarrant County’s Deferred Prosecution Program (DPP)

Pamela A. Boggess

Assistant Criminal ­District Attorney in ­Tarrant County

Chris McGregor

Assistant Criminal ­District Attorney in ­Tarrant County

For several decades now, prosecutors in Fort Worth have allowed certain offenders to enter a program for a second chance. Here’s how it works.

As the oldest diversion program of its kind in the state, the Deferred Prosecution Program in Tarrant County has for 40 years allowed young, low-risk offenders a second chance at life with a clean record. Known by its initials, DPP unburdens the courts of over 500 cases annually and disposes them through a type of mail-in probation run by the DA’s Office.
    For most of the program’s history, investigators with the DA’s Office met with applicants for a face-to-face interview as the last step in the admission process. Things changed in spring 2012, when that role shifted to a handful of misdemeanor prosecutors. Over the past year the program has grown in scope and numbers. Consequently, more prosecutors were needed to meet the interviewing demand. Now, 18 misdemeanor ADAs share the job of interviewing the hundreds of applicants who all want the same thing: a chance to have their criminal cases dismissed and the arrests expunged.
    This article addresses the nuts and bolts of our program, as well as the experiences and lessons young prosecutors have drawn from it.

The offense
To qualify, applicants must be between 17 and 21 years old at the time of the offense. In a perfect world an applicant would have only one charge pending; however, facing multiple charges is not always a deal-breaker. We make exceptions in limited contexts, such as more than one qualifying offense arising out of the same transaction. Multiple cases from separate incidents, however, are an automatic disqualifier.
    The most common offenses we see, by a long shot, are misdemeanor marijuana possession and theft. In fact, the recent inclusion of marijuana cases as a qualifying offense is the driving force in the numbers spike referenced above. Defense attorneys, we find, are very eager to get clients facing that charge into the program.
    Even if the offense qualifies, we exclude those with facts involving violence, weapons, or an injury risk. For instance, even in a standard shoplifting case, if a defendant ups the ante by taking a swing at a loss-prevention officer, his case would be ineligible for the program. Furthermore, nearly all felonies are excluded. We do allow on occasion state jail theft and criminal mischief offenses, plus a few others that are handled on a case-by-case basis. A good number of misdemeanor offenses are also barred. Those include—for reasons that are fairly obvious—DWI, assault, prostitution, public lewdness, and any type of weapons case, to name a few. We do consider burglary of a vehicle cases, but these don’t clear the application process very often.

The application
At the outset candidates are given a lengthy paper application. They have 30 days to complete and return it, along with a notarized affidavit that its contents are truthful and accurate. These deadlines have meaning, so from the start responsibility is placed squarely on the applicants. They must fill out the paperwork themselves. This theme—personal accountability—is a consistent one throughout the process and speaks to the larger purpose of DPP.
    What we look for through the application is a small sense of who the applicant is as a person, what sort of background he has, and where he might be headed. And we see a real cross section of society in our applicants. We have the children of affluent parents who live in good neighborhoods and attend top schools, as well as those from hardscrabble backgrounds, and everyone in between (roughly 20 percent of applicants are represented by appointed counsel). The sad truth is that it’s not uncommon for an applicant to have a parent in the penitentiary or for the applicant to be a dropout with children of his own and no viable skills to get him by in life.
    It’s equally true that the information we get in the application is only as reliable as the person providing it. To offset the risk of applicants minimizing their bad deeds or overstating their good ones, we require three written references from non-family members that speak to the applicant’s character. References should be aware of the pending criminal charge. In addition, we have applicants submit high school transcripts (and college, if applicable). They provide both work and social history and answer to any past experiences with drugs, alcohol, Class C tickets, or other criminal cases. The latter is especially important because a full background search and criminal history is run on every applicant by a DA investigator. If we catch an applicant in a lie at this early stage, there’s little hope he will be truthful in an interview. Furthermore, the background search often reveals other automatic disqualifiers such as gang affiliation, involvement in organized crime, a juvenile history, or arrests for certain Class C offenses such as disorderly conduct, assault, and possession of drug paraphernalia. Occasionally these go unmentioned by the applicant.
    One wrinkle we’ve added to the application on marijuana possession cases is the inclusion of at least one five-panel drug test (clean, of course), taken at the applicant’s expense, which is submitted along with the completed application.
    Once that is done, applicants pay a $25 non-refundable fee (which helps defray the cost of our office’s time). Applications are then reviewed, typically, by a staff member of our intake division. This is a time-intensive process, as dozens of applications come in weekly. At present, nine out of every 10 applications are returned for additional information or reference issues.
    The primary causes for rejection at the application stage are either the failure to apply on time or because some disqualifying factor is discovered during the background check.
The interview
Once a candidate navigates the application and background check, an interview is scheduled. An additional $75 fee is also collected prior to the interview (again, to defray our costs). Because of the high volume of applicants, we have at any given time 150 to 200 interviews pending. This is the stage where the prosecutors come in. Before the interview, prosecutors review the file containing the application, references, and other relevant information. Interviews are conducted in offices reserved for that purpose. Two prosecutors are always present, as well as the applicant and defense attorney. To avoid a potential conflict of interest, a prosecutor cannot participate in an interview on a case drawn from her assigned court.
    One prosecutor leads the interview, while the other is there in a secondary role, mostly as a witness. Because of the unique nature of prosecutors interviewing defendants, it’s always helpful to have an extra set of eyes and ears to document what has taken place. Applicants are also required to have a parent or guardian accompany them, but usually they are not present in the interview, the idea being that an applicant will be more candid once removed from a parent’s critical eye. The challenge, then, for the prosecutor is distinguishing between the truth and someone saying what they think the interviewer wants to hear. It demands that we make snap judgments as to credibility, similar to what we do with witnesses in our trials and everyday cases. Indeed, many of the same principles overlap. Sometimes the interview can feel like a cross-examination. As young prosecutors still learning our trade, this additional experience can only be a plus.
    We make it known up-front that an interview does not guarantee acceptance into the program. And the ground rules are clear and simple: Be honest and accept responsibility. The offenders must admit guilt. Because the interviews hit upon all aspects of the applicant’s life (not just the facts surrounding the charged offense), it is vital for us that the applicants tell the truth, unflattering though it may be. Applicants are told to expect tough questions about the offense, prior drug use or criminal activity, and issues involving maturity, contrition, and likelihood to reoffend. Of course, the style of the interview depends on the prosecutor conducting it. Though there are similarities, no two are exactly alike, but as a general rule, applicants who are forthright about their pasts are admitted to the program. Conversely, the overwhelming majority of rejections result from dishonesty.
    The addition of misdemeanor marijuana cases has raised its own set of distinct concerns. Foremost, we’ve seen a tendency for some applicants to get clean long enough to pass the drug test required at the application stage. Owing to the previously mentioned case volume, there is commonly a six-week or more gap between application date and interview date. We have found that some applicants will return to drug usage in that in-between time. Weeding them out is not particularly difficult, however, as most will admit recent drug usage under threat of an immediate drug test. One memorable interview involved an applicant who appeared to be under the influence when he showed up (he did not get in to the program, needless to say). To combat this, we now insist that applicants provide a second clean drug test taken no more than a week before their interview.
    In addition, modern attitudes toward the tolerance of casual marijuana use are mirrored in many of our applicants. Contrition is a tough sell with a lot of them. By way of example, even a thief understands that theft is wrong. However, a young person on the pro-legalization bandwagon is more difficult to convince that, whether he agrees with marijuana laws or not, he is still obliged to follow them while they remain on the books. Several have indicated a desire to move to Colorado.

The acceptance
If accepted into the program (as some 75–80 percent of those interviewed are), applicants must mail in monthly probation reports. Even at this stage, personal responsibility is paramount. Parents, family, friends, and defense counsel cannot complete or deliver reports. The standard probation period is six months but can be up to a year long. Because the criminal case is being conditionally dismissed, applicants must sign a waiver of speedy trial. In the rare instance when someone is unsuccessfully discharged from DPP, we re-file the original case and start back at square one.
    Similar conditions to what you might find in a court-monitored probation are included with DPP. If restitution is applicable, we require that amount be paid. The same applies to appointed attorney’s fees. We also incorporate other conditions designed to steer young offenders toward maturity and responsible decision-making. This could include anything from having a high school dropout obtain a diploma, to making someone with no work history get a job or volunteer in the community. Monthly drug testing is not unusual. Ultimately, we do our best to tailor conditions to the specific needs of the offender.
    And by all accounts, the program is a success. Although not everyone we let in gets it right, most do. Over 95 percent complete their probationary term and are eligible to have their arrest expunged. And most who complete DPP do not reoffend later in life (we are aware of only a very small number). In fact from time to time program graduates contact us and credit DPP with giving them the wake-up call they needed. The easy conclusion to draw from this is that the right decisions are made in the application process and in the interview so that only the most deserving applicants are allowed in. And this is as it should be, given the spirit of the program and the benefit extended to offenders.
    For the prosecutors involved with DPP, there are positives beyond the practical ones mentioned above. For those of us who manage heavy caseloads, there’s a risk of seeing defendants solely as a case number or offense. What we’ve discovered is that being involved in this process humanizes the work we do. In a sense, it lends a pulse to the body of our cases. Moreover, this program is helpful in achieving our mission: to see that justice is done.