The scope and variety of diversion programs across the country reflect a policy and political context that is increasingly receptive to the benefits of diversion. Diverting individuals away from charges, and the lifelong collateral of consequences that come with them, into diversion programs that more effectively and efficiently address the conditions underlying criminal behaviors, is the new normal and has become an expectation to offer.
The Growth and Evolution of Diversion Programs
Prosecutor-led diversion is specifically promoted nationwide by almost every criminal justice organization, including the National District Attorney’s Association, the Association of Prosecuting Attorneys, the Bureau of Justice Assistance, and the Center for Court Innovation. The National District Attorneys Association’s National Prosecution Standards (“NDAA Standards”) states that the “prosecutor’s office should urge the establishment, maintenance, and enhancement of [diversion programs] as may be necessary.”**
During the past two decades, there has been a push to supplement alternative courts with more traditional prosecutor-led diversion programs. Part of this drive is the increased attention to collateral and social consequences of charges and convictions, even if subsequently withdrawn and/or expunged. Another factor is mitigating overall budget pressures with an ever-increasing caseload.
Prosecutor-led programs are not meant to take the place of drug courts or court-led diversion. “Where both types of programs exist, these differences actually offer an opportunity to provide a more comprehensive and efficient approach to engaging the defendants flowing into the system and the utilization of court resources by determining which type of case intervention is most appropriate.”*
Who are the Gatekeepers to Diversion Programs?
District Attorneys have broad discretion whether to charge, what to charge, and whether to offer diversion or deferred prosecution. “Diversion participation should only be done at the prosecutor’s discretion, and the prosecutor should not yield to external pressures in either selecting a charge or deciding if diversion alternatives are a proper course of action.”**
“Diversion may be done at the stage of the proceeding, but with the option of continued prosecution. That does not preclude diversion alternative after a formal charge.” ' -NDAA Standards, Charging Commentary at p. 53.
"Prosecutors should consider when deciding to initiate charges, the availability of suitable diversion and rehabilitative programs." -NDAA Standards 4-1.3.
“Pretrial diversion/intervention programs offer an opportunity to intervene very early on in the case which can result in greater impact on the defendant’s behavior.”* -NAPSA Standards at p 2.
Recently, some states like California, have expanded Court’s discretion in diversion, even going so far as to give Judges the ability to offer diversion to a defendant over the objection of the prosecuting attorney.*** This practically also gives some discretion to defense attorneys to request diversion from the court if diversion has not already been offered by the prosecutor.
In Conclusion...
Diversion has become the norm for courts and prosecutors across the nation, and not just accepted but encouraged by organizations like the National District Attorney’s Association, the Association of Prosecuting Attorneys, the Bureau of Justice Assistance, and the Center for Court Innovation. Look for our next post on diversion, where we go over the basics on what to consider when starting or changing a diversion program. If you would like to discuss your district's current diversion program, or would like more information on our diversion program services, contact Thomas Jonsson or fill out the form on our contact us page.
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*NAPSA Performance Standards and Goals for Pretrial diversion/Intervention, Nov. 2008.
**NDAA Standards, Charging Commentary at p. 53.