Diversion
Pretrial diversion programs and treatment courts are fixtures in many states. However, statutes addressing these programs have been established and 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.
These alternatives are intended to reroute defendants away from traditional criminal justice processing after arrest but prior to adjudication. Pretrial diversion programs are designed to address criminogenic needs that contribute to criminal behavior, with successful completion resulting in a dismissal of charges.
Legislation addressing pretrial diversion often sets requirements for eligibility or dictates who is specifically excluded 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. Statutes also address who should administer the program, most often placing responsibility on courts or prosecutors, as well as what the fee structure should look like, length of the diversion and standards for what the content of the program should entail.
Population Specific Diversion
Diversion programs are not one-size-fits-all and population-specific diversion programs are often created to address the needs of a specific defendant population. Forty-four states and the District of Columbia have outlined population-specific diversion programs in statute. The most popular legislation in this area includes diversion for people with substance use disorders, mental health needs, a history of serving in, or active service in the military, and charges related to domestic relations.
Arrest Records and Convictions Can Lead to Additional Consequences
Deflection and diversion, and overall reducing involvement with the criminal justice system, can also reduce collateral consequences associated with being involved in the system. Having a criminal record means people can face “collateral consequences”—legal and regulatory sanctions and restrictions that can limit or prohibit access to employment, occupational licensing, housing, voting, education and other opportunities.
Some states have included provisions in their deflection and diversion statutes that will expunge criminal records if the programs or court participation is finished successfully. For example, Florida allows charges to be expunged for any person who successfully completes a treatment-based drug court program or a misdemeanor veterans’ treatment intervention program. (Florida § 948.16)
Substance Abuse
Thirty-eight states and the District of Colombia have legislatively authorized diversion alternatives that address individuals with substance-related needs. 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, depending on the program.
By and large, drug courts are the most popular substance abuse programming, although many states like Florida, specifically state that drug court programs must provide access to “alcohol, drug, and other related treatment and rehabilitation services.” (Florida § 397.334)
Some states have taken it a step further moving to combine substance abuse and mental health programs, noting as Illinois does that, “substance use disorders and mental illness co-occur in a substantial percentage of criminal defendants.” (730 ILCS 166/5)
Mental Health
Mental health related pretrial diversion programs and treatment courts have been enacted in 27 states. Legislators are responding to the attention placed on mental health, largely expanding eligibility for pretrial diversion programs centered on mental health. For example, Illinois expanded statutory eligibility for defendants to participate in mental health pretrial diversion three times in the past five years. (730 ILCS 168/1 et seq.)
In a similar effort, Mississippi created the State Intervention Courts Advisory Committee to establish “a viable and fiscally responsible plan to expand the number of adult and juvenile intervention court programs operating in Mississippi [including] plans to increase participation in existing and future programs while maintaining their voluntary nature.”
Mississippi also expanded the accessibility of diversion opportunities by authorizing courts to waive mental health court fees when a defendant was found to be indigent. (Miss. § 9-27-1 et seq.)
Veterans/Active Military
Many of the veterans or active military who become involved with the criminal justice system have substance abuse and/or mental health needs stemming from combat experiences. Twenty-eight states allow participation in diversion programs or treatment courts specific to the needs of veterans or active military personnel.
How legislators address this unique population in their state differs. For example, in Louisiana legislators enacted a pretrial diversion program specific to veterans suffering from Post-Traumatic Stress Disorder. (Louisiana § 15:244)
Massachusetts opted to direct district attorneys to establish a pretrial diversion program for veterans. (Mass. Ch. 12 § 34) The Minnesota legislature enacted a statute aimed at offering multiple pretrial diversion options for veterans ranging from deferred prosecution to probation in lieu of judgement and local veterans’ treatment court and diversion programs. (Minn. § 609.1056)
Domestic Relations
Twelve states permit some people charged with domestic relations offenses, including domestic violence and child abuse or neglect, to be diverted. These domestic relations pretrial diversion programs are largely different from those in other categories because they often require specified charges to be alleged.
Colorado, for example, allows prosecutors to divert people charged in child abuse or neglect cases to treatment or assistance with certain conditions. (Colo. § 19-3-310) In Virginia, under certain circumstances, a person charged with simple assault against a domestic relation may be diverted by the court. (Virginia § 18.2-57.3)
General Population Diversion
In lieu of, or in addition to, population-specific diversion, 39 states provide for one or more general diversion programs in statute. These programs are intended to address the needs of people more generally.
Laws addressing general population diversion normally 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 government agencies.
State statute often dictates which defendants are eligible for participation in a diversion program and frequently excludes specific defendants charged with a particular crime, defendants with specified criminal histories or cases where certain circumstances, like death or bodily injury, were a factor.
For example, Vermont’s statute lists defendants charged with a first- or second-degree misdemeanor or a first nonviolent felony as eligible, while Minnesota specifically excludes from participation in their diversion program defendants who have previously participated in a diversion program. (Virginia 3 V.S.A. § 164; Minnesota § 401.065)
Much of the legislation in this area also provides statutory guidance to program administrators, establishing factors to consider regarding who qualifies for entry into the program. These guidelines are generally intended to help make admission to diversion programs more consistent.
Prosecutor Led Diversion
At least 19 states have authorized prosecutor-led general diversion programs. Some states, like Arizona, authorize prosecutors to administer the program as well as decide, without dictating in statute which crimes are eligible or excepted, who could benefit from diversion. (Arizona § 11-361 et seq.)
Additionally, there are at least four states that authorize prosecutors to lead programs with court oversight or approval of some kind. North Carolina, for example, allows for prosecutor-led diversion, but requires court approval to divert a defendant. The law specifies eligible charges and requires that a court must find specific facts on the record including the completion of victim notification and opportunity to be heard, the existence of a written agreement of deferred prosecution, that the defendant has not been previously convicted of a felony or a misdemeanor involving moral turpitude, that the defendant has not previously been on probation and that the defendant is unlikely to commit another offense other than a class three misdemeanor. (North Carolina § 15A-1341)
Court Led Diversion
General population diversion programs led by courts exist in at least 17 states. State statutes vary on which courts are authorized to administer diversion programs. In most cases, diversion programs are administered at the trial court level. Sometimes chief judges, court administration or court services are referenced in statute as well.
Additionally, at least four states authorize courts to administer programs with input or approval from prosecuting attorneys. For example, Wyoming allows for a court-led diversion program but requires consent from the defendant and the prosecution. (Wyoming § 7-13-301)