CRIME

Deferred prosecution program raises troubling questions

Chris Anderson
chris.anderson@heraldtribune.com
Sarasota Herald-Tribune

It’s called the Deferred Prosecution Program, and it affords minor criminal traffic offenders a chance to avoid a conviction if they adhere to certain stipulations set forth by the State Attorney’s Office.

Pay money to the State Attorney’s Office, avoid traffic violations, obtain a driver’s license — if possible — and after six months of proper compliance the charge a defendant is facing will be dropped and expunged from their record.

The program has been in place for more than a decade and State Attorney Ed Brodsky said it is a successful one. Florida, he points out, is not a mass transportation state, meaning a significant number of people rely on their automobiles to drive to work, take their children to school and travel to other necessary destinations. He added that “we know people are going to drive regardless of the state of their license” and the program can provide someone a second chance and help eliminate a vicious cycle.

“It helps them avoid a conviction, which, when you get a conviction adds points to your record,” Brodsky said. “It’s kind of like a dog chasing its tail. We’re trying to avoid the dog chasing its tail. If you continue to amass points you are unable to get your license back.”

But the Deferred Prosecution Program has drawn criticism for the manner in which it is run.

Opponents say the program allows offenders to buy out of a crime without requiring them to fix their underlying legal issue, such as no valid license. And, if they’re here illegally, opting into the program could reduce the chance of a referral to immigration officials. Critics also question where the fee money goes.

There are also concerns over the lawful validity of the agreements, which have not been signed by judges since at least 2013.

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Critics also say a high participation rate by Hispanic offenders raises red flags. Some suggest that defendants facing a language barrier may be agreeing to the program’s conditions without adequate legal counsel. Others contend that it allows those who are in the country illegally to stay off the radar of immigration authorities. In certain cases, such participants have later committed serious offenses including aggravated battery and child abuse.

Other judicial circuits and counties — such as Duval — require participants to be legal residents of Florida or a U.S. citizen. The Deferred Prosecution Program does not.

“It’s cash register justice,’’ said 12th Judicial Circuit Public Defender Larry Eger, ”and they are riding on the backs of those who can least afford to pay.

“If you want to have a real diversion program, why not have an officer on the street who says ‘here’s a warning, get your license fixed.’ That’s a real diversion program. And no one profits from it.’’

Others agree.

“It’s a gross miscarriage of justice,” said Lisa Chittaro, a former prosecutor who is running against Brodsky for State Attorney of the 12th Judicial Circuit. “It appears people are buying out of criminal charges without having to get a license. It establishes a sanctuary city in our community, endangers our neighbors and tramples on the constitutional rights of those in the criminal justice system with no oversight or accountability.”

Local defense attorney Andrea Mogensen has several concerns about various aspects of the program, such as the representation of defendants and the payment of program fees, but she also sees value in it, too, and hopes that it can be fixed.

“I would hate to see the problems that have developed be the end of the program,” she said. “It’s important that people be given a grace and if they make a mistake we don’t turn it into a criminal history. It’s OK for us as a culture to forgive one mistake.”

Said Eger: “At least it’s less punitive than the alternatives.’’

How it works

The program is offered to criminal traffic defendants prior to their arraignment in court, and Brodsky said details are explained to them through a representative of his office, usually by program coordinator Celeste Bilodeau-White, who does not speak Spanish. According to Brodsky, however, there is always someone on hand to translate.

Assistant Public Defender Terry Drake said Natani Griener, a secretary in the program director’s office, is usually the person who represents the State Attorney’s Office and explains the program to defendants. She said a translator is always present and she is comfortable that language barriers do not hinder a person’s ability to make an important legal decision.

Mogensen, meanwhile, said she is concerned that the Hispanic population is being taken advantage of, basing her apprehension on the makeup of people she has personally observed in the hallway outside the courtroom when the program is being explained.

“You can tell it’s PTI traffic when you see the group gathered and there are so many Hispanics,” she said.

Drake said most of the defendants who are being offered the program are Hispanic, but does not feel the State Attorney’s Office is targeting a specific ethnicity of people. Law enforcement, she said, is more apt to do that, pulling over a truck, for example, with a trailer and holding the expectation that one or both will be operating illegally.

Mogensen said one aspect she has noticed is the lack of public defenders or defense attorneys who are present when a defendant is being offered the choice and is pondering the question of whether the option is the correct one for their situation.

“The agency who is prosecuting you is advising you how to dispose of the charge?” Mogensen said. “No one is looking out for their best interest. It’s very difficult for me to believe that the State Attorney’s Office should be advising what they should and should not do.”

When asked if there are defendants who are provided details of the program, and enter into it, without legal representation, Brodsky said, “yes, I would imagine there are folks learning about the program and are being advised of the opportunity to participate in the program and they don’t have counsel.

“That’s a fair question, but no one is requiring them to sign right then and there.”

Brodsky went on to say: “There is no coercion here because it is a win-win situation for them.”

Being in court can be intimidating for any person, especially when being offered something you were not prepared to address beforehand. It’s even more daunting when you don’t speak the language well or at all.

Eger said that representation is not a defendant’s right during a criminal’s traffic diversion program discussion.

“If it has been certified that if no jail sentence is sought in the adjudication of the case, the defendant is not entitled to representation through the public defender’s office,’’ he said.

Signing up

For other diversion programs — such as one for misdemeanors — a person can’t enter into the program unless all parties are confident a defendant has conferred with an attorney and “has knowingly and intelligently waived their right to a speedy trial,” according to Drake.

Part of the Deferred Prosecution Program agreement, written in both English and Spanish, says, “after an investigation of the criminal traffic offense and your background, it appears that the interests of the state of Florida and your own best interest may be served by allowing you to participate in a diversion program.”

In reviewing random documents dating back to 2013, there is no line for a judge to sign, just the defendant, the program coordinator and the assistant state attorney, who is not present during the signing.

Reviews of 2012 documents show there were lines for judges to sign that were removed the following year. Eger said a judge’s signature is not required for the agreement to be binding.

If the alleged offender decides to take part, they waive their right to a speedy trial and agree not to violate any traffic laws over a six-month deferred prosecution period. They also agree to pay $230 in fees and obtain, if possible, a valid driver’s license. If conditions are met, the criminal traffic charge will be dropped. A violation of any condition generally means the defendant is terminated from the program and the fee is forfeited.

“Some people would call that extortion,” said Mogensen.

Who gets the money?

Payments for the program are to be mailed or personally delivered to the State Attorney’s Office, and as underscored in the agreement, they must be made by cashier’s check or money order. It is specified that $180 goes to the comptroller, state of Florida, and $50 goes to Crime Stoppers.

The state comptroller, however, no longer exists — at least not as an official entity with that title. Established in 1845, it was merged into a new office in 2003 that is run by the Chief Financial Officer, following an amendment to the state constitution.

Jimmy Patronis is Florida’s CFO, and his office oversees such departments as accounting and auditing, insurance services, unclaimed property, worker’s compensation and investigative and forensic services. The CFO website does not mention diversion programs.

When asked if he was aware that the comptroller’s office no longer exists, at least by name, Brodsky said he was unaware, adding his office has never had a problem with fee money being rejected because a money order designated a possible non-entity as payee.

“I guess I’d have to look at it and see,” Brodsky said of the status of the comptroller. “I don’t know if I can answer your question.”

Brodsky said fees for other diversion programs pertaining to felonies and misdemeanors are paid in the same manner. However, court records reveal that regular misdemeanor program fees break down differently: $100 is paid to a local law enforcement agency such as a police department or sheriff’s office, $55 per month goes toward the cost of the program’s supervision and rehabilitation and $50 is marked for the comptroller, state of Florida. That is $130 less than what goes to the comptroller as part of the criminal traffic deferred prosecution fee.

The $180 fee that is paid to the comptroller as part of the criminal traffic fee is an increase of $40 from six years ago.

“It’s been a problem we’ve mentioned before,” said Drake. “It seems like it a ‘pay-to-play’ kind of thing.”

Mogensen also criticized the ‘pay-to-play’ aspect. “If you are paying something to the comptroller, it would seem it would be related to the offense,” she said. “It’s certainly not to administer the program. It raises the question: What’s the rationale? Who does it benefit?

“You are forcing someone to make a payment but you are getting the benefit. I’d be interested to know where these funds go and whose budget they are put into.”

The $180, Brodsky said, “goes to our office.” The fees go toward paying a full-time employee to operate the program as well as the general “operating budget of the State Attorney’s Office.”

Drake has a different version of the fee payment process. She said potential participants are told at the courthouse that $180 of their fee goes to a “crimes and compensation” fund.

“I don’t know what that fund is,” she said.

Defendants are also told, according to Drake, that $50 goes to the State Attorney’s Office.

“Nowhere is there any indication of checks and balances,’’ Eger said. “I don’t care how good the program is. Why is that not being done?’’

Hispanics affected

Obtaining a driver’s license is another point of contention for those who are facing a driving without a valid license charge. If a person is in the country illegally, they would not be able to obtain a license within the six-month window of the program. They would first need American citizenship, a lengthy process. Without a valid license, those people could be expelled from the program and thus would forfeit their fee.

In essence, they would be paying the state for nothing.

The program is not always adept at identifying those in the country illegally and initiating the deportation process to a lawful conclusion.

In 2019-20, 33 people who were cited in Manatee and Sarasota counties for driving without a license and were in the country illegally entered the program only to be charged with another offense a short time later. Some of the offenses were as serious as aggravated battery and child abuse. After the more serious charges, those defendants were detained by immigration authorities and deported.

Brodsky and Drake both said the background investigation referenced in the agreement is of a person’s past traffic history and not their criminal history. However, deeper dives into some backgrounds reveal troubling incidents. Omar Navis, for example, threatened to kill his pregnant girlfriend in 2003, according to a report. In 2016 he was cited for driving without a valid license and entered into the program. Two months later he allegedly abused and threatened to kill a different woman and was deported to Mexico.

“You can be an ax murderer, but it’s only based on someone’s driving history,” Drake said. “I understand why a person would be concerned about someone with a criminal history being able to participate in this program but I am also glad they are able to do it because driver’s licenses in this area are so important.”

Despite all of the questions it raises, Eger sees value in the program.

“I can support this program,’’ he said. ”At least it’s better than the alternatives.’’

Brodsky stands by it as well.

“This is a wonderful program to help motorists get their licenses back,’’ he said.