Deferred Sentence vs. Conviction

There was a lively and informative conversation on a recent ClearanceJobs Blog posting when a security clearance applicant asked for advice on whether they needed to report a domestic violence arrest where the judge deferred sentencing as part of a plea agreement by the defendant. Let’s take a look at what deferred sentencing actually means. In most states a judge has the authority to dismiss charges if the defendant pleads guilty and agrees to complete the terms of the court. This could mean completing classes, community service, or just remaining trouble free for a certain period of time. The last one is also considered a form of probation. In this case, the defendant pleaded guilty to the domestic violence charge and subsequently completed all the terms of the court conditions. The charge was then dismissed and under that state law, is considered as not a conviction. 

This is tricky for security clearance applicants when answering the questions on the Questionnaire for National Security Positions (SF-86). As a few of the background investigators noted on the blog post, it is better to disclose the arrest and deferred sentencing up front and explain what happened. This prevents the appearance of hiding information, which would lead to the perception of a lack of candor. Even if technically the applicant was correct in the way they answered, full disclosure is always better. Additionally, the adjudicator who reviews the completed background investigation looks at the behavior that led to the arrest, not necessarily the final court disposition where an attorney may get the charge pled down or even thrown out on a technicality. An example of this is someone who gets arrested four times for assault but may have no convictions because the witness refuses to testify. The likelihood that the behavior occured is high and will be taken into account in the final determination.