A New Era of Justice: Understanding Maryland’s PBJ(c)

A significant change in Maryland’s legal landscape arrived on October 1, 2023, with the introduction of a new disposition known as the “Probation Agreement,” or PBJ(c). This new tool, established under Md. Crim. Proc. § 6-220(c), represents a major step toward creating a more equitable justice system. It specifically addresses long-standing disparities that have disproportionately affected non-U.S. citizens.

This post will provide a detailed overview of the PBJ(c). We will explore its purpose, how it differs from the traditional Probation Before Judgment (PBJ), and the specific procedures required to implement it correctly. For legal professionals, understanding this disposition is not just beneficial—it’s essential for providing effective counsel and upholding the principles of fairness it was designed to promote.

What is a PBJ(c) and Why Was It Created?

The Probation Before Judgment (PBJ) disposition has long served as a way for Maryland courts to impose consequences and supervision while giving a defendant the chance to avoid a permanent conviction. If a person successfully completes their probation, they can maintain a clean record. However, this opportunity was not equally available to everyone.

For non-U.S. citizens, including lawful permanent residents (Green Card holders), DACA recipients, and asylees, a standard PBJ often triggered severe and irreversible immigration consequences. Under federal immigration law, a typical Maryland PBJ was considered a “conviction,” which could lead to mandatory deportation, family separation, and exile from a country they have called home for years.

The PBJ(c) was created with bipartisan support to fix this disparity. It is not a “lite” version of a PBJ; it is a carefully crafted procedural alternative that allows non-citizens to accept accountability and complete probation without automatically triggering the federal definition of a conviction. This disentangles the state criminal justice system from federal immigration enforcement, allowing each to function as intended.

How PBJ(c) Promotes Fairness and Accountability

The core principle behind PBJ(c) is fairness. It ensures that the rehabilitative promise of a PBJ is accessible to all Marylanders, regardless of their citizenship status. A U.S. citizen and a non-citizen who commit the same minor, PBJ-eligible offense can now receive truly comparable outcomes.

PBJ(c) is not an avoidance of accountability. A defendant who accepts a PBJ(c) is still subject to the full range of criminal consequences available under a standard PBJ. This can include:

• Probation with supervision
• Fines and court costs
• Mandatory rehabilitative services or treatment
• Incarceration or home detention as a condition of probation

If the defendant violates the terms of their probation, the court can enter a finding of guilt and impose a sentence without the need for a new trial. The defendant is essentially betting on their ability to demonstrate accountability. Failure to do so results in the full weight of a criminal conviction and its associated consequences, including potential immigration issues.

Key Differences: PBJ(c) vs. Other Dispositions

Understanding how PBJ(c) differs from other common dispositions is critical for its correct application.

PBJ(c) vs. PBJ(b) (Traditional PBJ)

The primary difference lies in the plea. A traditional PBJ typically follows a guilty plea or a finding of guilt. This admission is what triggers the definition of a “conviction” under the Immigration and Nationality Act (INA).

In contrast, a PBJ(c) does not involve a guilty plea or an admission of facts. The defendant maintains a plea of not guilty throughout the process. This procedural distinction is precisely what prevents it from being classified as a conviction for immigration purposes.

PBJ(c) vs. Nolo Contendere or Alford Plea

A PBJ(c) is distinct from a nolo contendere (no contest) plea or an Alford plea. In those cases, a defendant does not admit guilt but accepts that the state has enough evidence for a conviction. The PBJ(c) procedure does not involve changing the initial plea of not guilty. The defendant simply agrees to a probation contract without admitting to the facts presented by the state.

The PBJ(c) Procedure: Precision is Paramount

The legislature designed the PBJ(c) statute with great care to withstand legal challenges and achieve its intended goal. Any deviation from the prescribed procedure or casual language on the court record could jeopardize its effectiveness for a non-citizen defendant.

Here are the essential steps for implementing a PBJ(c):

1. Secure Agreement: All parties must consent. The State’s Attorney must agree to the disposition, the court must find it serves the public welfare and the defendant’s best interest, and the defendant must provide written consent.
2. Enter a Not Guilty Plea: The defendant formally enters a plea of not guilty. The record must be clear that this is not a nolo contendere plea or a “not guilty agreed statement of facts.”
3. Factual Proffer Without Admission: The state presents the facts of the case. Crucially, the defendant does not admit to or agree with these facts. Instead, the defendant waives their right to a trial and appeal in exchange for the court withholding a finding of guilt and placing them on probation.
4. Finding of Sufficient Facts: The judge finds that the state has presented sufficient facts to support a finding of guilt but explicitly withholds making that finding. This distinction is the linchpin of the entire process.
5. Impose Probation: The court defers the entry of a conviction and places the defendant on probation before judgment, with any appropriate conditions.

The Importance of Accurate Court Records

Ambiguous or unclear court records can have devastating consequences. If an immigration court cannot clearly determine that a defendant received a PBJ(c) and not a standard PBJ, it may treat the disposition as a conviction, defeating its entire purpose.

It is imperative that the final disposition documents clearly reflect a PBJ(c) under Md. Crim. Proc. § 6-220(c). Legal counsel should advise clients to obtain multiple certified copies of the disposition before it becomes eligible for expungement. These records are the defendant’s proof that they are not “convicted” under federal immigration law.

PBJ(C) is a good option, but be dilligent.

The PBJ(c) is more than a new legal option; it is a tool for advancing justice and fairness in Maryland. It promotes judicial efficiency by resolving cases in a way that protects the interests of all parties and provides a significant incentive for defendants to comply with probation.

However, still proceed with caution. This is a Maryland-created legislative tool that has not been ruled on by the immigration court officially yet. Although the purpose of the PBJ(c) is to help those facing immigration consequences, you should consult with an immigration lawyer before accepting a PBJ(c).

Our lawyers have experience in both criminal defense and immigration. If you would like a free consultation, call us at 301.513.7832 24/7. You can also complete our online intake form here. Once finished, you will hear from a lawyer within fifteen (15) minutes.

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