Diversion Programs

Diversion and first-offender programs give defendants a way to avoid criminal convictions.

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Most states have recognized that low-level offenses, particularly those committed by first-time offenders, shouldn’t necessarily trigger the normal criminal-case process. They’ve acknowledged that offenders with minor crimes may not be best served going through the regular court process of a plea and sentence or, in the case of a not-guilty plea, a trial. Counseling, rather than punishment, can often help and deter such people. (For information on a related topic, see Substance Abuse Treatment for Defendants Facing Drug and Other Charges.)

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.

How Diversion Works

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.

What Crimes Qualify for Diversion?

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.

Who Qualifies for Diversion?

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:

  • no probation revocations for any prior offenses
  • a period of being "clean," or without convictions, prior to the present case, and
  • no diversions within a specified amount of time.

Talk to a Lawyer

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.

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