Report Pretrial Diversion

Statutory pretrial diversion is well established in 48 states and the District of Columbia.These alternatives reroute defendants away from traditional criminal justice processing after arrest but prior to adjudication or final entry of judgment. Pretrial diversion is designed to address factors, called criminogenic needs that contribute to criminal behavior of the accused. Laws generally require that participation in diversion is voluntary and that the accused has access to counsel prior to making the decision to participate. Individuals are diverted prior to entry of judgment or conviction and a guilty plea may or may not be required. Successful completion of the program results in a dismissal of charges.

Population-Specific Diversion

Statutory diversion programs and treatment courts are often created by law to address the needs of a specific defendant population. Forty-three states and the District of Columbia have population-specific diversion programs which include:

• Thirty-nine states 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 abuse or addiction needs. (The information below excludes DUI specific diversion programs and courts).
• Twenty-four states have diversion alternatives for individuals identified as having needs related to mental illness.
• Many of the veterans or active military who have become involved with the criminal justice system have substance abuse and/or mental health needs stemming from combat experiences. Twenty-four states allow participation in diversion programs or treatment courts specific to the needs of veterans or active military members.
• Ten states permit some defendants charged with domestic relations offenses including domestic violence and child abuse or neglect to be diverted.
• Worthless check diversion programs are authorized in fifteen states. These programs generally allow first-time violators to clear their record after paying all restitution and completion of a financial management skills class.
• Fourteen states have laws allowing other population-specific programs, including programs aimed 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 provides defendants with intensive treatment, graduated sanctions and rewards, close monitoring by the court and other programming such as education or job training. Thirty-three 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. How these programs are administered and who they are managed by varies greatly by state. Thirty-six states and the District of Columbia have authorized a population-specific pretrial diversion program.

The map below provides more information on state laws governing population specific pretrial diversion and treatment courts. Driving under the influence courts and traffic courts are not included.

Substance Abuse

• Sixteen (16) states have statutorily authorized specialty courts aimed at addressing the needs of defendants charged with a drug offense or who have substance use related needs.
• Eight (8) states have statutorily created diversion programs for defendants charged with a drug offense or who have substance use related needs.
• Fifteen (15) states have statutorily authorized both specialty courts and diversion programs.

Mental Health

• Eighteen (18) states have  statutorily authorized specialty courts aimed at addressing the needs of defendants identified as having mental health needs.
• Four (4) states have statutorily created diversion programs for defendants identified as having mental health needs.
• Two (2) states have statutorily authorized both specialty courts and diversion programs.

Veterans/Active Military

• Eighteen (18) states  have statutorily authorized specialty courts aimed at addressing the needs of veterans and active members of the military who become involved with the criminal justice system.
• Five (5) states  have statutorily created diversion programs to address the needs of veterans and active members of the military.
• One (1) state  has statutorily authorized both specialty courts and diversion programs.

Domestic Relations

• Two (2) states have statutorily authorized specialty courts aimed at addressing the needs of defendants charged with domestic violence or related offenses.
• Eight (8) states have statutorily created diversion programs to address the needs of defendants charged with domestic violence or related offenses.

Worthless Check

• Fifteen (15) states have statutorily created diversion programs for defendants charged with offenses related to writing a worthless check.

These programs allow first-time violators to clear their record after paying all restitution and completion of a financial management skills class.

Other

• Eight (8) states have a statutory diversion programs for other populations.
• Three (3) states have statutory specialty court programs for other populations.
• Three (3) states have authorized both specialty courts and diversion programs.

These courts and programs include diversion alternatives for defendants charged with property offenses, prostitution offenses, specific weapon offenses, gambling offenses, defendants identified as victims of human trafficking, students, young adults, homeless defendants and public safety employees. Also included in this chart are community courts which target community-specific needs.

General Population Diversion

In lieu of, or in addition to, population-specific programming, 37 states authorize 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 agency. 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 uniform. Unlike the statutory eligibility requirements, these guidelines do not absolutely eliminate a defendant from consideration for participation in a diversion program, but instead, may help guide the discretion of the authority determining whether or not pretrial diversion would be appropriate for a particular defendant.

Thirty-seven states authorize 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 agency. 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.

The map below provides more information on state laws governing general population pretrial diversion options.