What is Diversion in Legal Terms?
The term diversion refers to the sending of a civil or criminal matter away from the normal course of adjudication in order to achieve a more just resolution. Often refereed to as diversion, we see diversion in prosecutions and scheduling alternatives for juvenile offenses.
The legal meaning of diversion involves the suspension or termination of judicial proceedings following a finding of guilt but prior to a sentence being imposed. The diversion may be initiated by the prosecution, a judge, a court, an agency, or a probation department. An operation of statutory and case law in the state, federal, and local courts, diversion has become a significant part of the criminal justice process . Often, those who participate in diversion programs plead guilty or no contest.
The goals of diversion include (1) reduced recidivism, (2) enhanced educational or rehabilitative compliance, (3) avoidance of counterproductive social stigma, (4) prevention of the adverse social, legal, educational or occupational impacts of a conviction, (5) assuring community safety. Historically, diversion arose from the belief that some first-time or less serious offenders might benefit from treatment, community service, counseling, restitution, mental health care, education, or rehabilitative measures instead of incarceration, a fine, or some other form of legal punishment.
Forms of Diversion Programs
There are two main types of diversion programs: pretrial and post-trial. Although some pretrial programs are initiated with the prosecution of an adult, most are available before trial or prosecution has even begun.
Common state-level examples of pre-trial diversion programs are drug courts and programs for non-violent offenders. Typically, the offender has to meet certain requirements, such as:
Like pre-trial diversion programs, post-trial diversion programs usually offer procedures for the offender to waive his or her right to a jury trial and proceed with a "trial" before the judge. In this situation, if the offender meets the pre-set requirements, the judge agrees not to impose a jail sentence and/or to dismiss and "erase" the arrest record after all of the sentencing conditions are met.
Pre-trial diversion programs are most common with juvenile offenders. They may include:
Some states operate special diversion programs for juveniles who have committed alcohol or drug crimes. These programs, like the pre-trial programs available to adults, require that the juvenile participant meet certain obligations, such as completing an approved rehabilitation program.
Qualification Standards for Diversion
Eligibility Criteria for Diversion programs are often established on a case-by-case basis and can differ across various jurisdictions. Typically, the prosecution and the court must find that certain factors are present before a defendant in an alcohol related criminal matter can be eligible to participate in the Diversion process. Commonly, the components of this determination revolve around the level of the offense and the perpetrators prior criminal history. Although not a requirement, a driver who has been charged typically must also admit to drinking at the time. The entire purpose of diversion is that it offer your criminal matter a chance to be dismissed without the harsh penalties, ban on driving and perhaps even jail. However, if the prosecution and the court determine that the case at hand is particularly egregious, those same bodies can determine that the matter is not appropriate for diversion. The decision is oftentimes based upon the seriousness of the offense, if there were any injuries to the other party involved its much more likely that the matter will not provide diversion. A history of traffic problems also weighs against diversion. In some circumstances, even the existence of an open container of alcohol in the vehicle at the time of the alleged violation can weigh against diversion eligibility. The Arizona courts and prosecutors tend to be very interested in the time lapse between when the defendant was arrested and when admitted that he was drinking. Only offenders that acted in a reasonably responsible manner after having been drinking will be made eligible for diversion programs.
Mechanics of Diversion
Diversion is designed to avoid a criminal trial by moving the case from the courtroom to "divert" it into one or more of the programs as an alternative to being prosecuted and turned over to the court system.
Once a defendant expresses interest in diversion, our office will file a motion or petition with the court to request diversion. Often, the DA will also file a motion for diversion, and that can be heard at the same time.
Diversion hearings are generally heard by a different judge than the one that hears the initial arraignment. The judge that hears the case knows if the defendant has a criminal record. Often prosecutors know which judge will approve a diversion sentence or not. For that reason, prosecutors will often agree to divert certain cases but oppose others that they feel are serious enough to not allow diversion.
Please keep in mind that a lawyer should look seriously at the impact on your criminal record, and the defeat of the purpose for diversion, if a defendant seeks diversion but then engages in activities that cause the diversion to be revoked. That can occur if the defendant fails to meet the restrictions of the diversion order, can’t complete the diversion program, or if they engage in new criminal activity.
If it is a misdemeanor case, the DA’s office will explain how long the observation period will be. If the defendant completes the diversion program, the case is dismissed. If the defendant does not complete the program, the defendant can then be prosecuted on the original charges.
The same type of process is followed for felony diversion and juvenile diversion. The difference is that juvenile diversion may not be appropriate for violent felonies or sex crimes.
Pros and Cons of Diversion
Diversion programs can benefit defendants, the legal system broadly, and society as a whole in a variety of ways. A diversion program is often less costly than incarceration for defendants or probation for the legal system; these alternatives can be costly for the state and may reflect lower priority concerns. Moreover, there are often less burdensome for society.
The expenses associated with incarceration, specifically the cost of building and maintaining prisons and housing prisoners, is a major burden to the government. According to the Vera Institute of Justice, the average annual prison expenditure for every incarcerated person was $28,000 in 2015. Accordingly, the costs of incarceration totaled $80 billion nationally that year. Incarceration also takes prisoners away from their families and has negative social impacts on families and children , often increasing the likelihood that children in these types of families will become involved in the criminal justice system as well.
Under well-established diversion concepts, juveniles who commit misdemeanors or nonviolent felonies are generally diverted from formal prosecution in exchange for completion of counseling or community service. Adult offenders charged with low-level crimes may be eligible as well, particularly in drug courts.
Diversion program benefits can extend beyond those just mentioned. Criminal defendants who complete diversion programs often receive reduced or no charges on their underlying crime, and as a result may well have their criminal records wiped clean. Law enforcement can then better focus on high-level and violent crimes.
Legal Penalties Post-Diversion
If you successfully complete diversion on a criminal case, you will be treated as if that charge was never filed against you. The court will enter a dismissal of the charge and it will not show up on your criminal record. The courts are allowed to expunge records associated with the original charge. However, they are not required to do so. If you were arrested on a serious violent felony charge, the judge may decline to seal your record if he or she believes people should have access to your criminal record. Diversion also does not mean you cannot be charged in the future with a crime that arose out of the same facts.
Examples of Diversion in Action
To truly understand the impacts of diversion and the opportunities it presents, we can look at some case studies of when diversion was used effectively.
Case Study 1: Theft of services
In the state of Montana, a 32-year-old man was arrested for stealing services with a value under $1,500. Referred to as "failing to pay", the crime involved taking something without paying for it, such as service at a restaurant or a taxi cab fare. In this case, the man was accused of riding in a taxi cab with an unpaid balance. The potential penalty was a fine of up to $500 and/or 6 months in prison.
After evaluating the defendant’s situation, the court decided to allow him to participate in a diversion program. Local law enforcement was notified of the defendant’s participation in the program and the delay of the pre-trial conference. During this period, the defendant was encouraged to address other issues that were potentially contributing to his criminal behavior. He wrote a letter to the car service he rode, followed up by writing a check in the full amount of what was owed.
Through to the conclusion of the diversion program, the defendant kept a clear record, was granted 40 hours of community service and was not required to pay restitution. At the end of the process, the defendant was able to have his case dismissed.
Case Study 2: Felony theft
The defendant in this case was charged with a felony of theft of services with a value greater than $1500. This type of theft generally involves the fraudulent use of a person’s property for one’s own gain. Like in the case above, the defendant was charged with failing to pay for a taxi service, but in a much larger amount. The potential penalty for a felony would be a fine of up to $5,000 and/or 10 years in prison.
The defendant, however, was referred for a diversion program. Even after acknowledging that the money he owed would not be paid back, the district attorney granted the defendant a diversion. The defendant also contacted the owner of the taxi service directly. At the conclusion of the program, they discussed how to make amends.
The defendant successfully completed the diversion program, which meant he received no sentence and had the charges against him dismissed. He was required to write a letter of understanding, which he sent personally to the owner of the taxi service, to be distributed after the completion of the process. The defendant made full restitution, was placed on probation and completed community service.
Each of these defendants required representation throughout this process, as they will serve according to what was recommended for their unique situation.
The Future of Diversion
The future of diversion is poised for change. Various entities are pushing for criminal justice reform in California, and diversion programs are at the forefront. Some studies show that approximately 60% of those charged with a crime in the United States have a mental health illness. Of these cases, approximately 30% could benefit from a diversion program.
California legislature recently enacted Senate Bill 215 to ensure that courts divert people with certain mental health and substance abuse disorders into therapeutic programs. This provides eligibility to those previously deemed incompetent to stand trial because of their mental state or temporal incompetence due to a substance use disorder.
Additionally , the 2016 federal Fair Chance Act prohibits almost all employers from asking applicants, before making a conditional offer, to disclose whether they have been arrested, are subject to arrest, or were convicted of certain crimes. This could impact a diversion program’s eligibility criteria by changing how a previous conviction is handled.