Diversion programs for minor criminal offenses

Many jurisdictions have diversion programs for relatively minor criminal offenses and defendants who have little or no criminal history. Under these programs, charges are filed but then adjourned by agreement while the defendant undergoes a period of pre-disposition probation. The probation may include reporting, restitution and a treatment program, such as a safe-driving program for DUI arrestees. Although rare, the court or probation office may impose a requirement that the defendant consent to (random) searches of his home as a condition of diversion. If you complete the probation successfully, the charges are dismissed. The diversion program also might provide for expungement of your record.

Disadvantages of diversion programs

An alternative disposition is not exoneration. Some programs require that you acknowledge guilt and this acknowledgement might become admissible against you in later civil actions or at the criminal trial, should you flunk out of the diversion program and charges be reinstated. Disposition by pre-trial diversion usually precludes you from suing for wrongful prosecution or arrest. The diversion might count as a conviction for license suspension purposes or immigration purposes. Even where the program results in expungement, the prosecutor’s office may keep a record of your participation so that you will not have diversion available for your next arrest. In some cases, a summary offense or violation, such as disorderly conduct, might be a better disposition than diversion. Not only does it impose fewer conditions of supervision, you still may resort to diversion on a subsequent charge.

Creative agreements

In the right case, you might have options other than a plea agreement, cooperation, or diversion. If you and the alleged victim have an ongoing relationship, a mediation program might be an option. Your criminal defense attorney might be able to convince the victim and the prosecutor to forego charges and agree to a protection from abuse order or the local equivalent (applicable when you and the victim are family members or have an intimate relationship), in return for restitution, or for submitting to counseling. Many jurisdictions have instituted a wide range of “problem-solving courts,” including drug and mental health courts for offenders who have substance abuse or mental health problems, domestic violence courts, sex offender courts, and even courts designed to treat the problems of veterans. Drug courts fall into two models: (1) the diversionary programs, in which an adjudication of guilt is postponed pending the defendant’s completion of the program; or (2) the post-adjudication model, in which the defendant first pleads guilty and then sentencing is suspended or deferred pending the defendant’s success (or lack of it) in the program. However, while drug courts offer an opportunity for you to address the underlying problems that perhaps contributed to a criminal lifestyle, they also may trap you into a long sentence, particularly the programs of the post-adjudicative type. Once you have pleaded guilty and then failed a drug treatment program, you have little leverage to obtain a favorable sentence. Some courts do not defer sentencing, but impose alternative sentences: one of probation for successful completion, and another of substantial incarceration if you flunk the program. An entrance requirement for treatment courts often is a contract in which you agree to waive privacy rights in your treatment records and the right to demand a hearing on whether you successfully completed the program.