Pretrial Diversion: Pay Not to Stay (in Jail)
by Christopher Zoukis
As government authorities come to grips with the massive and costly incarceration problem in the United States, efforts to find alternatives to expensive prison and jail sentences are underway. Pretrial diversion, an old favorite, is once again gaining popularity across the country in conjunction with bail reform efforts. [See: PLN, June 2017, p.30; May 2017, p.26].
Pretrial diversion, which has been around for decades, is intended to relieve overcrowded jails and court dockets by providing a more effective method of dealing with minor offenders. Diversion programs often include counseling, rehabilitation and job training components. Plus they offer certain criminal defendants a way to avoid being branded as felons.
In Florida, for example, some jurisdictions offer “pre-trial intervention” for people charged with most non-violent, third-degree felonies, which afford them a type of diversion typically only available to misdemeanor offenders.
When offenders enroll in a diversion program they agree to comply with certain conditions – usually including community supervision, drug testing and the payment of fees – and to refrain from further criminal behavior for a specified period of time. If successful, the original charges are dismissed and do not appear on their criminal record.
Diversion programs are controlled almost exclusively by prosecutors. There is no way to appeal a prosecutor’s decision and there is little oversight. Prosecutors generally do not have to report on these programs, so there is no data available to directly measure their success. Nor in some cases is it possible to determine who is offered diversion and who isn’t.
One thing that is well-known about pretrial diversion programs, though, is that they routinely discriminate against the poor because the fees associated with diversion are usually significant and mandatory. An investigation by the New York Times found fees ranging from a few hundred dollars up to several thousand.
And in some places, a well-heeled defendant can pay a little extra to ensure eligibility in a pretrial diversion program. Such as in Shawnee County, Kansas, where the district attorney’s Chief of Staff Matt Patterson said a defendant who might not normally be considered eligible can secure diversion if they agree to pay more.
The monies received from diversion fees often go directly into the prosecutor’s coffers, and accounting for those funds is rarely required.
Not every jurisdiction with a diversion program charges fees, however. Robert Groebener, Jr., a felony prosecutor in Cook County, Illinois, said the concept of fee-based diversion was absurd.
“That would be a complete failure here in Cook County,” he said. “These defendants, they don’t have $50 in their pocket.”
Others see charging fees for diversion for what it is: pay to play, or rather pay not to stay in jail awaiting the disposition of criminal charges.
“It’s almost like you’re paying for a dismissal,” said Lynn Pride Richardson, the Chief Public Defender in Dallas. “And that is illegal.”
Sources: www.nytimes.com, www.floridacriminallawblog.com
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