Defense lawyers have had success recently in negotiating a program of community service, plus the stet docket, as an alternative to PBJ in Maryland marijuana cases. This approach has its advantages.
Probation before Judgment, “PBJ” for short, has been the go-to resolution of marijuana cases for defense lawyers in Maryland. Codified in Title §6–220 of the state’s Criminal Procedure article, PBJ allows a defendant to serve probation before judgment is entered. If the terms of probation are met, the guilty finding (after plea or trial) is struck and an adjudication of guilt is never entered.
After 3 years (or soon under if “good cause” is shown) a client is eligible for expungement. (Md. Crim. Proc. Art. §10-105). But PBJ has its drawbacks. First, for the purposes of federal immigration, PBJ is not recognized. The INS treats a PBJ just like any other conviction. For other purposes, such as background checks, security clearances, and employment, PBJ may not do much good either.
The 3 year waiting period for expungement can also be problematic. In the past, when court records were kept on paper files in individual courthouses, expungement was an effective solution for permanently erasing someone’s record.
In the internet age, with shared public databases, and sophisticated data-mining, any information which has been in the public domain for 3 years is probably there for good. You can’t un-ring the bell.
In Montgomery County and elsewhere, including the Rockville and Silver Spring District Courts, community service plus the stet docket is an attractive alternative. The stet docket is an inactive docket, which also offers expungement, but with two important benefits. First, with a stet disposition, the client never has to admit guilt or go through a trial. Because there is no admission of guilt, there is no guilty plea to strike, as there is with PBJ. Because there is never a finding of guilt (as opposed to a finding later stricken), stet can be a better solution.
Second, Maryland law prohibits a judge from giving a PBJ for “a second or subsequent controlled dangerous substance crime.” (see §6-220(d)(2)) So a PBJ “uses up” a client’s one bite at the apple. Of course, every client believes that his first case will be his last, but sometimes it doesn’t work out that way, so it’s good to keep your right to a PBJ for another day if possible.
Kudos to the Montgomery County State’s Attorney’s office for negotiating community service + stet dispositions. Now we need the Maryland legislature to follow Massachusetts, New York and 14 other states in decriminalizing possession of personal use marijuana, changing it from a criminal offense to a civil infraction, where the risk of a permanent criminal records is eliminated.