Depending on how a diversion program is structured, an individual can enter the program either before the disposition of the underlying charge or after a plea is entered. In Maryland, most diversion programs require individuals to enter a guilty plea or accept a Probation Before Judgment (PBJ) – a disposition that the state of Maryland does not consider to be a criminal conviction—in order to participate in the program. This is problematic in the immigration context because of the relationship between these dispositions and grounds of removability under immigration law: a guilty plea or a PBJ is enough to count as a “conviction” for immigration purposes.

Most controlled substance offense convictions automatically trigger removal proceedings, and can lead to harsh consequences, such as deportation and prolonged mandatory detention. Thus, participation in a controlled substance diversion program puts members of Maryland’s large noncitizen community at risk of prolonged detention and possible deportation. That result is punitive and inconsistent with the rehabilitative and community-oriented goals of diversion programs.

A number of other states, including Connecticut and Florida, have diversion programs in place that avoid such harsh immigration consequences. These programs could provide a useful model for Maryland. Notably in Maryland, Howard County, and Washington County have diversion programs that do not require an individual to accept a guilty plea in order to participate, and therefore do not result in a conviction for immigration purposes. These two counties – especially Washington County because of the more expansive number of qualifying offenses for participation in its diversion programs – can therefore provide a model diversion program for other Maryland counties.

Maryland, and specific counties within Maryland with a high number of undocumented residents, should examine and restructure diversion programs so as not to impose convictions on successful diversion program participants.