By Wendy Davis, ABA Journal
In February 2018, newly elected Philadelphia District Attorney Larry Krasner sent his staff a five-page memo outlining new policies aimed at fulfilling his campaign promise of ending mass incarceration.
One of his mandates was simply “Divert More”—meaning, offer defendants alternatives to the traditional criminal justice system. The memo elaborated that prosecutors should “approach diversion and reentry with greater flexibility and an eye toward achieving accountability and justice while avoiding convictions where appropriate.”
Krasner isn’t alone. Other reform-minded prosecutors throughout the country, particularly ones who promised to reduce imprisonment rates, are turning to diversion to resolve criminal charges.
Many of these programs involve requiring defendants to follow certain conditions, which can include performing community service, attending counseling and the like. When defendants complete the programs, their cases are typically dismissed. Some diversion programs require defendants to plead guilty as a condition of entry, while others operate on a “pre-plea” model. But even when people plead guilty, the charges can be dismissed at sentencing.
Some defendants also have their records “sealed”—meaning not accessible—when underlying cases are dismissed, though this varies by state. In New York, for instance, cases are typically sealed when they’re dismissed. But in Vermont, defendants must wait two years after they complete diversion before their records are sealed.
In recent months, a high-profile example of diversion involved Jussie Smollett, the Empire actor who was indicted in Chicago for allegedly falsely reporting to the police that he was the victim of a hate crime. In March, the Cook County State’s Attorney’s Office dismissed the charges against Smollett, in exchange for his agreement to forfeit $10,000 in bail money and perform 16 hours of community service. Smollett’s case sparked questions around diversion sentencing and special treatment.
Many criminal defense attorneys tend to favor diversion programs because they allow people to avoid the lifelong consequences of a criminal record, including the impact on their eligibility for certain jobs, or even housing. But even as reformers praise diversion, questions have arisen about how decisions regarding diversion are made—and if they’re made equitably.
“Most times, diversion is the fair thing to do,” says Drew Findling, president of the National Association of Criminal Defense Lawyers and an attorney in Atlanta. “You don’t want to see people make that one mistake in life and have to live with it for the rest of their lives.”
The concept of diverting cases from the criminal justice system isn’t new. As far back as 1977, there were an estimated 200 diversion programs in the country, according to a recent Center for Court Innovation report. But enthusiasm for diversion appeared to wane during the tough-on-crime years of the 1980s and 1990s.
These days, as movements such as Black Lives Matter—which called attention to mass incarceration in the U.S.—have taken hold, there’s renewed interest in shuttling cases out of the criminal justice system. Additionally, the dramatic drop in crime rates over the last several decades has lessened the political pressure that fueled a push toward incarceration.
“Declining crime rates have made it harder to demagogue this issue—at least on the right,” says Greg Berman, director of the Center for Court Innovation.
A recent survey of 220 prosecutors’ offices by the Center for Court Innovation found that 55% of counties nationwide now offer diversion programs for people accused of crimes or violations. Those programs aren’t just for defendants charged with misdemeanors, or even for first-time offenders. Fifty-six percent of counties with diversion allow defendants charged with felonies to participate, while 85% accept people who have previously been arrested and 34% accept people with a felony conviction.
In some jurisdictions, eligibility is established by state or local lawmakers; in others, prosecutors’ offices establish criteria. But even where defendants meet eligibility requirements, prosecutors typically have discretion over how to proceed. Factors that can influence the decision can include the nature of crime, prior contact with the system and input from victims.
Currently, there’s little uniformity nationwide—or even within states—over how these decisions are made. Often, the question comes down to district attorneys’ practices, according to the NACDL’s Findling.
“Georgia has 159 counties. You can be in one part of Georgia and qualify for a diversion program and literally step over the line to the next county and have to take five years’ probation,” Findling says.
The upshot, he says, is that defendants accused of the exact same crime—such as first-time offenders accused of a nonviolent theft—can face drastically different outcomes, depending on the locale.
“What really frustrates people is there’s not consistency,” Findling says. “It’s location, location, location.”
Much depends on the views of individual district attorneys. “Unfortunately, you have certain people in this country who have a love affair with incarceration because it gets them votes,” Findling adds.
In Philadelphia, Krasner’s memo spelled out some examples of situations where prosecutors should consider diversion—including cases where defendants were accused for the first time of driving under the influence, as well as those where defendants were accused of delivering marijuana, and where an “otherwise law-abiding, responsible gun owner” was arrested for failing to have a permit to carry a firearm. The memo specifies that the examples are not meant to be comprehensive.
Michael R. Moore, Beadle County state’s attorney in South Dakota and co-chair of the ABA’s Prosecution Function Committee, says he began offering diversion around seven years ago, in hopes of shielding people from disproportionate consequences. For instance, he says, a high school student arrested for marijuana possession could lose a college scholarship if convicted.
Moore adds that traditional prosecutions can unfairly worsen some defendants’ situations: “On some of these minor offenses, you’re just compounding the problem for these individuals,” he says.
Even as some prosecutors push for diversion, others resist its use. The ACLU reported in December 2017 that prosecutors in Kansas are failing to utilize diversion programs. The organization found that 21% of Kansas’ counties won’t consider diverting people accused of drug offenses, and that 33% of counties won’t divert people accused of felonies. The group also found that around 25% of the 105 counties in Kansas violate a state law that requires prosecutors to create written diversion policies and guidelines.
Last year, the ACLU went into court and sought a writ of mandamus that would force Montgomery County prosecutor Larry Markle to comply with those notification procedures. That case is currently pending.
“If more folks knew of their options, they would ask for it more,” says the ACLU’s Somil Trivedi, a staff attorney with the Criminal Law Reform Project. “A case like this raises awareness and pressures folks to use it more often.”
Markle’s office did not return the ABA Journal’s call for comment.
THE COST-BENEFIT OF DIVERSION
Some jurisdictions require defendants to pay fees to the private agencies that operate the programs. A 2016 investigation by the New York Times found that fees can reach as high as $5,000 in some jurisdictions, and that some of the money can go to prosecutors’ offices. Defense attorneys surveyed by the Times said fees prevented some clients from participating in diversion.
Diversion programs can also involve sending some defendants—such as people with mental health issues, or substance abuse problems—to specialty courts, where judges supervise a plan of treatment.
As with diversion to an out-of-court program, diversion to a so-called problem-solving court offers defendants the ability to comply with conditions—often a drug-treatment program or mental health regimen—in exchange for a better sentence. If people comply with treatment, charges are either dismissed or reduced at sentencing; however, not all specialty courts automatically dismiss the charges at sentencing.
The National Drug Court Institute reported in 2016 that drug courts were found to reduce recidivism by an average of 8% to 14%; some were found to reduce recidivism by 35% to 80%.
But not everyone thinks problem-solving courts have been an unqualified success. Erin Collins, an associate professor at Richmond School of Law, says there are concerns that some specialty courts deal with defendants who have been arrested on minor charges and don’t necessarily require intense supervision, while excluding people who have been arrested for more serious crimes. “Research shows that the people who need it the most are the serious offenders,” Collins says.
She adds that most specialty courts require people to plead guilty—waiving their rights to whatever defenses they may have been able to present—as a condition of entry.
“Most courts are a post-plea model,” she says. “The threat of whatever sentence they would have gotten is hanging over their head while they’re in the program. I would be more encouraged by actual true diversionary programs that actually divert people from the system.”
DIVERSION UNDER ATTACK
In February, the Trump administration proposed that federal job applicants should be asked whether they have ever participated in diversion programs. Currently, federal job applicants are asked whether they have convicted of a crime, imprisoned, on probation or on parole during the last seven years.
The administration now wants to also ask applicants whether, in the last seven years, they have “been subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”
ABA President Bob Carlson recently urged the U.S. Office of Personnel Management to reject the proposal.
“These programs help keep justice-involved persons employed, housed, and together with their families while repaying their debt to society as determined by a court. We should support such programs and not impose unnecessary obstacles to them,” Carlson wrote in a May 1 letter.