Pretrial Diversion

by

Leanne Alarid, Nicole Cebak

• LAST REVIEWED: 21 February 2023
• LAST MODIFIED: 21 February 2023
• DOI: 10.1093/obo/9780195396607-0327

Introduction

Concern about the harm that involvement in the criminal justice system can cause for youth and socially marginalized individuals prompted alternatives to traditional criminal processing in the mid-1960s. Pretrial diversion initially was an initiative focused around rehabilitating youths and first-time nonviolent defendants charged with a criminal offense. The defendant could voluntarily enter a diversion program to be helped, and at the same time, avoid the stigmatizing effects of a criminal conviction. Diversion, in most cases, takes place after the filing of a formal charge and before the adjudication of guilt, but the defendant remains under the authority of the criminal justice system. One important exception to this is police-led diversion whereby police officers typically divert youths away from juvenile justice system oversight. Pretrial diversion in practice is also known as deferred adjudication, deferred prosecution, police-led diversion or pre-prosecution intervention. Pretrial diversion is frequently and incorrectly confused with pretrial detention or pretrial release (See the separate Oxford Bibliographies in Criminology article “Bail and Pretrial Detention” for more information about pretrial detention). In pretrial release, the defendant is released from detention to assist in his or her own defense in a criminal case that is being processed through traditional channels. In contrast, the prosecutor in a diversion case agrees to delay the prosecution of the charge while the defendant undergoes counseling in a community-based setting or pays back the victim for losses incurred. With successful completion of diversion, the charge is dismissed, but the meaning of dismissal varies. Some states (e.g., Kansas) will permanently dismiss charges, while prosecutors in other states (e.g., Florida, Texas) exercise the option to re-file the charge again if a new crime is committed within a specified number of years after diversion is completed. The primary goals of the original diversion programs were the defendant’s likelihood of rehabilitation, increased employment prospects, and lowered recidivism. Rehabilitation was also a central tenet of the juvenile justice system (See the separate Oxford Bibliographies in Criminology article “Juvenile Justice System”) at this same time. This goal required the defendant in some jurisdictions to admit responsibility by entering a guilty plea. The judge decided whether this plea was made voluntarily and intelligently. In other jurisdictions, a guilty plea is not required and the prosecutor delays the case or the judge “continues” the case until diversion is completed. This bibliography presents the most important criminological works and law reviews that discuss history of diversion, legal issues, criticisms, referral methods, youth diversion programs, and evaluations of diversion programs for adults.

History and Overview of Pretrial Diversion

The theoretical concept of pretrial diversion can be traced back to the way the juvenile court system offered youth other alternatives to a criminal conviction in an attempt to avoid stigmatization and labeling youths as criminals (See the separate Oxford Bibliographies in Criminology article “Labeling Theory”). Diversion offered youth and their parents the chance to make changes to prevent further case processing, so that youths could transition into adulthood without the negative consequences associated with having a conviction. The first documented use in the federal system was a deferred prosecution program in the late 1940s, but Ulrich 2002 and Scott-Hayward 2017 argue that in practice, diversion is still only used in less than 1 percent of all federal cases. Pretrial diversion expanded in the 1970s for state defendants to include low-risk and first-time adults. Akers 1975 provides a historical account crediting widespread practice to the President’s Commission on Law Enforcement and the Administration of Justice of 1967, whereby federal funding was offered to start diversion programs around the country. Three of the earliest diversion projects included the Manhattan New York Court Employment Project, Citizens’ Probation Authority in Michigan, and Project Crossroads in Washington, DC. Johnson, et al. 2019 found that contemporary diversion goals have changed to reduced prosecutorial costs associated with traditional case processing and increased employment opportunities for individuals who were able to have their cases expunged. In addition, the researchers found an increase in diverted felony cases, particularly for offenders with mental health or substance abuse problems. In the 1990s drug courts, mental health courts, and other specialized types of problem-solving courts became a new and improved way of implementing diversion programs for defendants with substance abuse problems (See the separate Oxford Bibliographies in Criminology articles “Problem-Solving Courts,” “Drug Courts,” and “Mental Health Courts”). Clark 2007a discusses how problem-solving courts became the next iteration in diversion programs, because they were more individualized to each offender, they provided more chances for failure, and judges became active participants. Johnson, et al. 2019 also found that contemporary diversion programs accepted a wider range of offenders and the programs included elements of restorative justice, community service, payment of fees/restitution, cognitive-behavioral therapy, and educational classes in areas such as health, substance abuse, parenting, and driving. Over the last two decades, deferred prosecution program goals have changed so that judges and prosecutors become administratively more efficient, reduce their court dockets, and spend time on more serious cases. Cowell, et al. 2004 examines the cost effectiveness of diversion compared to other outcomes, while Mueller-Smith and Schnepel 2021 looks at the role that diversion plays in maintaining future earning power and employment prospects for marginalized groups.

• Akers, Monte E. 1975. Pretrial diversion and its effect in Texas. Houston Law Review 12:1087–1109.

  This law review traces the history and development of pretrial diversion programs nationwide, and the various federal agencies that helped fund their expansion. The second half of the article discusses specific pretrial diversion and deferred prosecution programs in major cities of Texas.

• Clark, John. 2007a. The role of traditional pretrial diversion in the age of specialty treatment courts: Expanding the range of problem-solving options at the pretrial stage. Washington, DC: Pretrial Justice Institute.

  This monograph succinctly compares and contrasts prosecutor-centered pretrial diversion programs with more recent, judge-centered problem-solving courts.

• Cowell, Alexander J., Nahama Broner, and Randolph Dupont. 2004. The cost-effectiveness of criminal justice diversion programs for people with serious mental illness co-occurring with substance abuse: Four case studies. Journal of Contemporary Criminal Justice 20:292–314.

  DOI: 10.1177/1043986204266892

  This article examines the cost effectiveness of diversion for people with serious mental illness in four jurisdictions. The authors find that post-booking diversion reduced costs when compared to jail, but costs were not uniformly reduced for pre-booking diversion programs when compared to community-based mental health treatment.

• Johnson, Kalani C., Robert C. Davis, Melissa Labriola, Michael Rempel, and Warren A. Reich. 2019. An overview of prosecutor-led diversion programs: A new incarnation of an old idea. Justice System Journal 41:63–78.

  DOI: 10.1080/0098261X.2019.1707136

  This article provides an excellent comparison of original diversion programs in the 1970s and contemporary diversion programs today in terms of how program goals, eligibility, program duration, program requirements, and consequences of completion have changed.

• Mueller-Smith, Michael, and Kevin T. Schnepel. 2021. Diversion in the criminal justice system. The Review of Economic Studies 88:883–936.

  DOI: 10.1093/restud/rdaa030

  This article uses regression discontinuity to show the positive effect of diversion on employment and lower recidivism outcomes compared to the lower employment prospects and higher recidivism of young black men with a criminal conviction. The authors suggest that a conviction contributes to future lost wages long after a sentence is served, and diversion should be part of reform efforts to reduce racial inequality.

• Scott-Hayward, Christine. 2017. Rethinking federal diversion: The rise of specialized criminal courts. Berkeley Journal of Criminal Law 22:47–109.

  This article points out that pretrial diversion is infrequently used in the federal system due to statutory limitations, and argues that the United States Sentencing Commission should consider expanding federal pretrial diversion programs.

• Ulrich, Thomas E. 2002. Pretrial diversion in the federal court system. Federal Probation 66:30–37.

  This article outlines the use of pretrial diversion in the federal system, including the most common qualifying offenses, the demographics of this population, the length of the diversion period and the outcomes of defendants who received diversion from 1995 to 1999.