Pretrial diversion programs and treatment courts are fixtures in many states. However, laws authorizing and regulating these programs have been modified in recent years, with many states moving to expand access and eligibility for defendants. Thirty-one states have made significant amendments to, or created new, pretrial diversion programs since 2017.
Pretrial diversion programs are alternatives intended to reroute defendants away from traditional criminal justice processing after arrest but before adjudication. These programs are designed to address criminogenic needs that contribute to criminal behavior, with successful completion resulting in dismissal of charges.
Laws addressing pretrial diversion generally set requirements for eligibility or dictate criteria for exclusion from participation. Many states have recently amended their eligibility guidelines, intending to increase pretrial diversion opportunities, and thereby increasing treatment opportunities and alternatives to jail for defendants. Laws also address who administers programs, most often placing responsibility with courts or prosecutors. Laws can also address fees and provisions for indigency, length of the diversionary agreements and standards for completion, and what the content of the program should entail.
Population-Specific Diversion
Diversion alternatives are not one-size-fits-all and population-specific diversion laws are often drafted to address the needs of a particular group of people. At least 44 states and the District of Columbia have outlined population-specific diversion alternatives in statute, which include:
- Thirty-eight states and the District of Columbia have diversion alternatives that address substance abuse. These programs or treatment courts are available to people charged with drug- or alcohol-related offenses as well as defendants identified as having substance use or addiction needs. (The information in the attached database excludes DUI-specific diversion programs and courts.)
- Twenty-seven states have diversion alternatives for individuals identified as having needs related to mental illness.
- Twenty-eight states allow participation in diversion programs or treatment courts specific to the needs of veterans or active military members.
- Thirteen states permit some defendants charged with domestic relations offenses, including domestic violence and child abuse or neglect, to be diverted.
- Fifteen states have a diversion option for individuals charged with crimes related to writing worthless checks.
- Fourteen states have laws allowing other population-specific alternatives, including those designed to help defendants accused of property offenses, defendants accused of prostitution-related offenses, defendants who are considered victims of human trafficking, homeless defendants, defendants statutorily classified as young adults, defendants charged with weapons offenses under specified circumstances and defendants charged with crimes that affect their neighborhood and can be addressed by a community court.
Types of Diversion Alternatives
Treatment courts are a specific type of diversion which provide defendants with intensive treatment, graduated sanctions and rewards, close monitoring by the court, and other programming such as education or job training. These alternatives are administered by courts and successful completion of pretrial treatment court requirements generally results in dismissal of all charges. Thirty-five states have authorized the use of substance abuse, mental health, veterans, and other types of these specialized courts.
Pretrial diversion programs are also used to reroute defendants who are veterans, have substance use or mental health needs or who fit within another defined population away from the justice system. Administration and management of these programs varies greatly by state, but in many instances, they are administered by prosecutors. Thirty-five states and the District of Columbia have authorized a population-specific pretrial diversion program.
The linked database provides more information on state laws governing population-specific pretrial diversion and treatment courts.
General Population Diversion
In lieu of, or in addition to, population-specific programming, 39 states provide for one or more programs that are not population-specific and address the needs of defendants more generally than the programs listed above. These laws generally designate who has authorization to create a diversion program or designates administrative authority over a program to a specific individual or office such as prosecuting attorneys, local courts or other local governmental agencies.
State statute also generally provides guidance on which defendants are eligible for participation in the diversion program and often specifically excludes defendants charged with a particular crime, defendants with specified criminal histories or cases where certain circumstances, like death or bodily injury, were a factor.
Many of these laws also provide statutory guidance to program administrators regarding who qualifies for entry into the program. These guidelines are generally intended to help make admission to diversion programs more consistent. Unlike the statutory eligibility requirements, these guidelines do not absolutely eliminate a defendant from consideration for participation. Rather, they are aimed at guiding the discretion of the authority determining appropriateness of pretrial diversion for a particular defendant.
Prosecutor-Led Diversion
At least 17 states have authorized prosecutor-led general diversion programs. Additionally, there are at least six states that authorize prosecutors to lead programs with court oversight or approval of some kind.
Court-Led Diversion
General population diversion programs led by courts exist in at least 17 states. Some statutes vary on which courts are authorized to administer diversion programs. In most cases, diversion programs are administered at the trial court level. Chief judges, court administration, or court services are sometimes referenced in statute as well. Additionally, at least four states authorize courts to administer programs with input or approval from prosecuting attorneys.
The linked database provides more information on state laws governing general population pretrial diversion options.
Using the Database
The database can be navigated by using state and subtopic filters. Text searching is available for statutory summaries or statutory language contained in the database. The map is also interactive and allows you to more quickly select multiple states to review―just hold down the control key to select more than one state. Use the reset button at the top left to clear all filters and start a new search.
Note that this database only contains statutory provisions that address each policy area. Case law, regulations or agency policy may further impact the current state of the law in each state. This database also does not address policies adopted by local jurisdictions.