Diversion Programs

Diversion and first offender programs give some defendants a way to manage the charges against them without going to trial or pleading guilty.

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Most states have recognized that those charged with many low-level offenses, particularly those committed by first-time offenders, should not necessarily go through the regular court process of a plea and sentence or, in the case of a not-guilty plea, a trial. People who are facing charges of this nature can often be helped and deterred from future criminal conduct if they are counseled, rather than punished. (For information on a related topic, see Substance Abuse Treatment for Defendants Facing Drug and Other Charges.)

Studies show that diversionary programs are much less costly than sending a case through court. In addition, diversion gives the defendant the opportunity to compensate victims, by means of restitution orders and community service.

What is Diversion?

Diversion is a program that has been created by the state legislature and signed into law. It identifies specific crimes, and describes the characteristics of those charged with the crimes, that will enable the defendant to enter the program. Those who enter a diversionary program typically do not enter a plea when they come to court (at their arraignment) after being arrested. Instead, they are literally diverted to the counseling program. (In some programs, defendants plead guilty but the plea isn’t formally entered into the court system; the plea is erased upon successful completion of the program.) Programs can last from six months to a year or more.

Diversionary 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 to court and the matter is dismissed or a lesser offense is charged. If the case is dismissed, usually the record of the arrest is not sealed or otherwise destroyed, however. In some situations, defendants may take the additional step of seeking to expunge, or seal, the record of the case.

If participants do not complete diversion or are discharged from the program for failure to adhere to its terms (or for subsequent criminal behavior), the case returns to court for prosecution. At that time the defendant must enter a plea of guilty or not guilty.

Defendants typically pay for their diversion program, by paying a fee to the court and/or treatment center. The cost can sometimes be more than a fine.

What Crimes Qualify for Diversion?

When creating a diversionary program, legislators identify the types of offenses that may be included in the program. These offenses are typically low-level and are 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 offense they are now charged with (this isn’t the same as saying they must be first offenders). Common requirements for drug diversions in particular include 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.

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