First-offender programs divert certain first-time defendants away from the traditional criminal process and into pretrial (sometimes pre-charge) services that address their specific needs—such as substance addiction, mental health needs, gang involvement, homelessness, or food insecurity—that may have brought about the criminal behavior.
Goal. The goal of these programs is to hold defendants accountable while trying to keep them out of the system at present and in the future.
Who runs the program? Many first-offender programs are run by prosecution offices at the local, state, or federal level. Depending on the needs of the jurisdiction, an office might offer first-offender programs to defendants facing first-time drug possession charges or nonviolent misdemeanor or felony charges. Defendants must voluntarily agree to participate in the program.
What is the outcome? If the defendant successfully completes the program, the prosecutor might dismiss or reduce the charge or decide not to formally file the charges. However, prosecutors leave their charging and prosecution options open for those defendants who violate the rules or don’t complete the program. These defendants usually go back to square one and head to court.
Eligibility for first-offender programs varies from state to state and federal district to federal district. Often, a state or federal law will authorize a diversion program and set high-level eligibility requirements. And then it’s up to the individual prosecutor’s office to decide what type of program to run and what eligibility requirements to impose. (Generally speaking, defendants are not entitled to participate in a diversion program even if it’s offered and they meet the requirements.)
For instance, state law might authorize pretrial diversion programs for defendants charged with a nonviolent felony or misdemeanor, as long as the defendant has no prior convictions for violent crimes, has never been in a diversion program before, and isn’t charged with a crime involving a position of trust (such as embezzlement). Prosecutors’ offices around the state could implement various programs under this authority. Some might focus on young adult offenders (age 18 to 25), while others might apply only the drug or alcohol-related charges or prostitution charges.
Initially, many prosecutors’ offices limited first-offender programs to misdemeanor charges but that has changed over time. First-offender programs across the country range from minor to major charges. For example, several cities offer diversion programs for young people facing felony or misdemeanor firearm possession charges.
Defendants who enter first-offender or diversion programs get a chance to avoid criminal prosecution or a conviction. But this opportunity usually means the defendant will be closely supervised for a year or more and must agree to the prosecution’s terms to get the benefits.
For instance, many programs require the defendant to:
The actual program requirements will depend on the charges and the defendant’s criminal history and personal history. Typically, the defendant will sign a contract with the prosecutor’s office that outlines all the requirements.
Not following the rules can get the defendant kicked out of the program and the prosecutor can proceed with the criminal case as usual. For minor violations, a defendant might get a second chance, although this second chance could come with more onerous conditions.
For those charged with a federal crime, you might want to ask your defense lawyer if the U.S. District Attorney’s office offers a pretrial diversion program. Remember, diversion and first-offender programs vary by district.
People who have been charged with certain federal drug crimes may be eligible for diversion under the Federal First Offender Act (18 U.S.C § 3607). To be eligible, the defendant must not have prior state or federal convictions concerning controlled substances. A person can participate in the federal program only one time.
Defendants who enter the program plead guilty or have been found guilty, but their judgment of conviction isn’t officially "entered" into the record. After a year of probation, if the defendant has completed its terms successfully, the court will dismiss the proceedings without entering the judgment of conviction. But if the defendant violates probation, the case will proceed with the entry of the judgment and sentencing.
For successful probationers, the case "shall not be considered a conviction." Defendants who were younger than 21 at the time of the offense, and who successfully completed probation, will see the record of their case expunged or sealed.
Federal diversion programs are not limited to simple drug possession charges. Examples of other federal diversion programs, often run by Pretrial Services, include programs aimed at:
Some programs don’t have a specific focus but might exclude defendants who are charged with sex offenses, child exploitation or pornography, offenses involving the use of a firearm, or gang-related offense for major players.
Department of Justice (DOJ) guidelines outline certain eligibility criteria for pretrial diversion programs but leave many decisions for local offices to make, including the available outcomes. Upon completion, a prosecutor might offer to dismiss or reduce the charges or not file charges. (18 U.S.C. § 3154.)
Just like the federal programs, state programs vary by city, county, or district and depend on the needs of the community and prosecution priorities. A community suffering from a high rate of opioid and other drug overdoses might focus on first-offender programs for defendants with drug addiction. Another community might be trying to get guns off the streets and out of the hands of teens and young adults and focus on firearm possession charges.
Other program examples include efforts to divert the following people out of the criminal system:
Some prosecution offices offer several first-offender programs. It’s a good idea to talk to your lawyer about what options are available in your area, what the program entails, and what the advantages and disadvantages are.
If you face criminal charges, ask your lawyer if you might be eligible for a first-offender program or some other kind of diversion. Even if you doubt you're eligible, the advice of a lawyer with experience in your area is crucial. Rules and customs vary significantly from state to federal court, state to state, and even county to county.
]]>Furthermore, studies show that diversionary programs are much less costly than sending a case through the normal court process. In addition, diversion still gives defendants the opportunity to compensate victims, by means of restitution orders and community service.
Diversion is a program that has been created by the state legislature and signed into law. It identifies crimes and offender characteristics that will enable the defendant to enter the program. Under some diversion systems, defendants are “diverted” to counseling early in the proceedings. In some formats, the defendant doesn’t have to enter a guilty or no-contest plea in order to receive diversion. Other systems require that the defendant formally admit guilt, but suspend punishment until the defendant has had the opportunity to complete diversion. (The plea isn’t formally entered into the court system so it can be erased upon successful completion of the program.)
Defendants typically pay for their diversion programs with a fee to the court, treatment center, or both. The cost can sometimes be more than a fine.
Diversion programs can last from six months to a year or more. These programs emphasize counseling, treatment, and behavior modification over punitive measures. Often, participants must agree to attend classes and vocational training, participate in individual or group therapy or counseling, perform community service work, make restitution to any victim, and pay fines.
When participants successfully complete the program, the case returns once and for all to court and is dismissed. If the case is dismissed, the record of the arrest isn’t usually sealed or otherwise destroyed. Defendants may be able take the additional step of seeking to expunge, or seal, the record of the case. (For more information, see Expungement or Sealing of Adult Criminal Records.)
If the defendant doesn’t complete diversion or is discharged from the program for failure to adhere to its terms (or for subsequent criminal behavior), the case returns to court. If the defendant previously entered a guilty or no-contest plea, then the judge can impose a sentence. If the defendant failed and the form of diversion didn’t require her to previously enter such a plea, then she’ll have to enter one, and the case will proceed accordingly.
When creating a diversionary program, legislators identify the types of offenses that make offenders eligible for it. These offenses are typically minor and non-violent, such as petty theft, personal possession of certain drugs (not possession for sale), and in some states, driving while under the influence of alcohol or drugs. Some states include assaults that involved very minor or no injuries, and some include domestic violence and child abuse or neglect.
Most programs limit participation to those who have no prior convictions for the charge they now face. Common requirements for drug diversion in particular includes:
If you’ve been arrested or otherwise face criminal charges, consult an experienced criminal defense lawyer. A lawyer versed in local practice will be able to fully explain the applicable law, including the ins and outs of the relevant diversion system.
]]>There are, however, situations in which the prosecution may agree to drop or hold off on filing charges, such as diversion or pretrial interventions. And despite the general prohibition against settling criminal charges for monetary consideration, in many states, defendants can resolve certain misdemeanor charges through financial settlement with the victim. (To learn more, see Civil Compromise for a Criminal Offense.)
Although there are many ways—including (but not limited to) diversion programs, mental health and drug courts, and expungement and record-sealing opportunities—to avoid or minimize the effects of a criminal conviction, only a knowledgeable criminal defense attorney can properly evaluate whether they apply to your situation. Make sure to consult a lawyer versed in local court practices if you want to pursue any of them.
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