It sounds like a good idea: give first-time and nonviolent offenders a second chance with what's known as a deferred sentence.
If they follow the rules, their crime goes away and they get a fresh start.
But two recent high-profile cases have raised questions about a practice that both prosecutors and defense attorneys support.
Michael Toter, 19, is alleged to have violated the deferred sentence he got in a case in which 14-year-old Lewis Palmer High School freshman Sara Losasso was killed riding in Toter's car. He admitted he was speeding before the Jan. 19, 2005, crash that took her life on Monument Hill.
Toter pleaded guilty to a felony and accepted a deferred sentence in 2006, promising not to drive for a full year. But he got a speeding ticket 10 months later.
That speeding ticket could land Toter in prison for up to six years.
In the other case, Robert L. Psaty, 56, is alleged to have slipped drugs into a date's drink at a Colorado Springs diner in January. He faces two felony charges.
Before the recent allegations surfaced, Psaty successfully completed two felony deferred sentences - neither from the 4th Judicial District - and managed to get a position as a mental health clinician at the Colorado Mental Health Institute in Pueblo.
The two cases beg the questions: Do deferred sentences help people skirt punishment normally imposed for crimes? Or do they give people who have made a mistake a second chance?
‘Tool for prosecutors'
When a defendant enters a deferred sentence, either to a misdemeanor or to a felony, he or she pleads guilty to the crime alleged - but the conviction is never entered.
The conviction hangs in limbo because, in a deferred case, the sentence is never imposed. If the defendant successfully completes a term of probation - usually two years for a misdemeanor or up to four years for a felony - the conviction goes away though the arrest usually remains on the record.
"It's basically a contract between the district attorney and the offender and has to be approved by the court," said Assistant District Attorney Amy Mullaney.
The deferred sentence is "used to effect the interests of justice," she said.
"District attorneys are mandated to seek justice, not just to convict everyone or send everyone to prison," Mullaney said. "Sometimes good people just make a mistake."
Deferred sentences are usually used only for first-time offenders and usually only for nonviolent crimes. Colorado law prohibits them from being used in crimes of violence resulting in serious bodily injury, or in which a deadly weapon is used.
Colorado Springs defense attorney and former prosecutor Cynthia McKedy said it can be good for both sides.
"They are a good tool for prosecutors, especially if the case is hard to prove," McKedy said. She noted that prosecutors can get a felony conviction if the offender slips up on the deferred sentence, without the risk and cost of a trial.
Conditions for a defendant who gets a deferred sentence often include restitution for the victim, community service, educational classes such as anger management or alcohol awareness, some jail time and not picking up any new charges.
"In a lot of ways, a deferred sentence to a felony is better than a misdemeanor plea," McKedy said. "Sometimes defendants do better with something hanging over their head - though a misdemeanor punishment is less severe" if they should mess up on the terms of the felony deferral.
If prosecutors prove through a preponderance of the evidence that a defendant has violated the terms of a deferred sentence, a judge can impose the sentence that felony carries. At that point, no trial or appeal is possible.
Fourth Judicial District Judge David Shakes is scheduled to decide what to do with Michael Toter's case March 19.
Drug Court has success
It's rare for a person to get two deferred sentences in a lifetime, as Psaty got, Mullaney said.
After all, prosecutors try to weed out the "alligators" - repeat offenders - from the "lizards" - first-time offenders who commit nonviolent crimes, she said.
"If a person has had a deferred and successfully completed it, but then re-offends, they've established to us they are not the one-and-only (charge) type offender," Mullaney said.
She estimates deferred sentences are used in 10 percent to 12 percent of all criminal cases in the 4th district.
Mullaney points to the district's Drug Court as a success story that uses only deferred sentences. If someone gets approved for Drug Court, firsttime offenders enter deferred sentences in an attempt to get their lives on track.
Out of 714 defendants accepted into the program from 2001 through the middle of last year, only 29 failed and got felony convictions, she said. That's a 96 percent success rate.
Often, language is written into the agreement preventing a person from trying to seal the case, as well as the charges and arrest that came with it. So even though people can honestly say on a job application they were never convicted of a crime if they successfully complete a deferred sentence, background checks will reveal the arrest.
That's better than the alternative, officials say.
"Anytime you can avoid a felony conviction, it's the right thing to do," McKedy said. "Sometimes the risk is too great."