PRETRIAL DIVERSION IN THE FEDERAL COURT SYSTEM

PRETRIAL DIVERSION is a voluntary program that provides an alternative to prosecution for an individual selected for placement in a program of supervision administered by a pretrial services or probation office. The offender who is selected for pretrial diversion enters into a contract with the U.S. attorney’s office, pledging to meet certain conditions and to refrain from criminal activity for a specified period of time. Because participation is voluntary, persons may decline to enter the program and instead exercise their right to proceed with a trial on the charges against them.

The roots of pretrial diversion in the federal system lie in the treatment of juveniles facing judicial action in the federal courts. In 1947, the Judicial Conference recommended that courts be encouraged to use what was termed “deferred prosecution” in the cases of “worthy” juveniles, by placing them under the informal supervision of probation officers for a definite period.[1] In the 1960s, growth in pretrial release programs spurred interest in going beyond assuring appearance in court and led to efforts to focus on addressing the reasons for arrest. In the 1970s, diversion programs expanded following the recommendations of the 1967 President’s Commission on Law Enforcement and the Administration of Justice. Diversion thus emerged as a national crime control strategy.[2] By addressing the reasons for arrest, pre-trial diversion is intended to reduce the likelihood of recidivism. Under diversion, the possibility that prosecution in the defendant’s case might be suspended is meant to serve as an incentive to defendants to change their behavior and habits, particularly because it is clear that prosecution will occur if diversion is not completed successfully. Changed behavior through successful completion of diversion is also of value to the community and the courts.[3] Anticipated benefits arising from pretrial diversion also include conservation of court time and resources for more serious crimes, as well as the opportunity for rehabilitation, which can reduce the likelihood of future criminal activity.[4] For the individual, who is often a first-time offender charged with a less serious offense, satisfactory completion of the period of diversion offers the possibility of avoiding a charge on the record and a possible conviction. Positive outcomes for society occur when an individual receives treatment as a condition of diversion and when a pattern of illegal behavior is broken, which reduces that person’s risk of becoming a repeat offender. Society also benefits when diversion results in restitution in the form of financial repayment to victims or service to the community.

In the federal system, the Department of Justice (DOJ) has responsibility for pretrial diversion and creates policies and procedures for persons diverted from prosecution under this program. The U.S. Attorney’s Manual includes eligibility criteria for divertees and describes procedures to be followed. When pretrial diversion is used, a written agreement between the U.S. attorney and the chief pretrial services or probation officer defines aspects of its implementation. The agreement describes the responsibilities of the U.S. attorney for referring potential candidates for pretrial diversion to the pretrial services or probation office, outlines the procedures to be followed if the individual breaches the conditions of the agreement, and describes actions that are taken upon successful completion of the requirements. A pretrial services or probation officer typically prepares a diversion report that describes the offense, the candidate’s personal history, including any criminal record, and an assessment of the person’s risk factors; it also contains a recommendation regarding the person’s participation in a pretrial diversion program. When the officer recommends an individual as a candidate for placement in pretrial diversion, the report typically suggests possible conditions, as well as a recommended length of diversion supervision. The National Association of Pretrial Services Agencies (NAPSA) has developed a set of standards for diversion entitled The Performance Standards and Goals for Pretrial Release and Diversion. The original standards were developed in 1978, then revised in 1995. NAPSA defines a pretrial diversion program that includes the following standards:

• persons charged with criminal offenses are

provided with alternatives to traditional

criminal justice or juvenile justice proceedings;

• the accused participates in the program

only on a voluntary basis;

• the accused has access to defense counsel

prior to a decision to participate;

• service plans developed with the candidate

are designed to address the needs of that

candidate, and are structured to assist that

person in avoiding behavior likely to lead

to future arrests; and

• the program results in the dismissal of

charges or the equivalent if the divertee successfully completes the diversion process.

In the federal court system, the use of diversion varies across districts, reflecting the discretion of the U.S. Attorney’s Offices and district characteristics. How supervision is conducted also differs depending upon the types of offenses, needs of the divertees, and supporting programs available. Participation in pretrial diversion is voluntary and may require a waiver of the individual’s Sixth Amendment right to a speedy trial, because participation in the program causes prosecution to be deferred pending satisfactory completion of the diversion period. Prosecutors have the discretion to determine whether a defendant is suited for pretrial diversion, but are not authorized to selectively prosecute defendants based on impermissible considerations such as race or religion.

Enrollment of defendants in pretrial diversion in the federal court system has provided an alternative to traditional criminal justice proceedings for more than two thousand persons annually. Participants in pretrial diversion are more likely to be persons charged with criminal offenses such as fraud, larceny, theft, embezzlement, and violations of other federal statutes than are persons charged with drug or immigration offenses.

If charged with a federal offense, pretrial diversion is an avenue that should be explored by defense counsel. If charged with a federal offense, contact T. Kirk Truslow, P.A.