I wanted to let everybody on this list know that I am working with several groups in California to introduce Legislation in January 2015 to amend the Deferred Entry of Judgment statute (for minor drug offenses) to provide for pre-plea diversion the way it was pre-1997, probably with some minor change(s). The only major change would be that in addition to a waiver of speedy trial rights, there may be a waiver of the right to jury trial.
It is tragic that a minor drug offense can lead to deportation and inadmissibility and tear families apart, even when the offense is dismissed after a diversion program and may be many years old.
I would urge anyone in CA who is interested in working with me on this to contact me, and I would urge those in other states to begin the Legislative process to amend state laws to provide for pre-plea diversion for minor offenses such as possession of a controlled substance, under the influence of a controlled substance, possession of paraphernalia, and the like. If anyone else knows of similar legislation that has been introduced or will be introduced in other states, please let me know. The California Legislature is in a sweet spot right now, and I think it likely that this bill will become law.
As most of you know, for immigration purposes a plea and some form of restraint on liberty is a conviction for immigration purposes even if there is no formal sentence and even if the criminal case is ultimately dismissed. Pre-1997 in California there was a pre-plea diversion statute. This was amended prior to 1997 to provide that a plea would take place because D.A.'s were frustrated that a defendant could flunk out of diversion and then demand a jury trial. We are proposing that there be some additional waiver of right, such as the right to a jury trial, to deflect any law enforcement concern that it would be difficult to get a judgment if there is a unsuccessful termination of diversion.
Anyone wishing to contest a drug case could still plead not guilty and take the case to jury trial. Those wishing to obtain pre-plea diversion, would waive the right to a jury trial.
- Mike Mehr