Some states may use a “sentencing” option referred to as deferred prosecution. Authorized by state statutes, this option allows the supervised individual to admit to or stipulate the facts of the criminal conduct but defers prosecution contingent upon the completion of a treatment program or other conditions. If the individual successfully meets the court’s requirements, the case is typically dismissed, and no criminal judgment is entered. Conversely, if the individual fails to comply, the court may enter a conviction and proceed with criminal sentencing.

The question with deferred prosecutions is whether the supervised individual is covered by the ICAOS, given that there is no formal conviction, and the individual remains in a “pretrial” status. However, the Commission has interpreted its rules to include such individuals. See ICAOS Advisory Opinion 6-2005. The Commission determined that there is little practical difference between “deferred prosecution” and “deferred sentencing.” In both cases, the supervised individual generally admits to the facts of the underlying criminal conduct. While deferred prosecution does not involve a formal judgment of conviction or suspension of sentencing, as in deferred sentencing, the court still accepts the individual’s admission to certain facts and places them under a probationary-type status. Unlike someone under pretrial, whose guilt has not been established, the individual in a deferred prosecution has admitted to the essential facts of their conduct and no longer enjoys the presumption of “innocent until proven guilty.” As noted by the Commission, “In determining that Rule 2.106 applies to deferred prosecutions, we focus on the actual actions taken…rather than the label used by the legislature.” Factors to consider in determining whether the Compact applies to a supervised individual subject to a deferred prosecution program include, but are not limited to:

• Is the supervised individual 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 supervised individual returned to court and in jeopardy of having a conviction entered without trial?
• Is the supervised individual, 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?

A supervised individual in a deferred prosecution program that includes elements such as admissions of material fact and waiver of rights, would be subject to the Compact. By contrast, if the deferred prosecution program operates solely as a prosecutorial diversion, without court involvement or the need to waive fundamental rights in future proceedings, it is likely not covered by the Compact.