Diversion

Programming
diversion

Presentation for the New

Orleans Racial Justice Task
Force

Foundational
Standards
Core Elements

By Spurgeon Kennedy

Developing/Implementing
A Diversion Program

February 11, 2011

New Orleans Louisiana

Outcome and
Performance Measures

Session Goals
Define diversion as it is currently practiced.
Outline the statutory and legislative supports

of diversion
Examine diversions benefits to local criminal
justice systems
Discuss diversions core elements and
fundamental practices

Diversion

diversion
Any voluntary option that provides alternative

criminal case processing for defendants and ideally

results in a dismissal of the charge(s).

Diversion programs feature: (1) uniform eligibility

criteria; (2) structured delivery of services and

supervision; and (3) dismissalor its equivalentof
criminal charges upon successful completion of the
required term and conditions of diversion.

(NAPSA Performance Standards and Goals for

diversion/ Intervention (2008). This definition is
supported by the upcoming ABA Standards, Federal
and State statutes, and ongoing diversion program
practices)

What This Includes

Accelerated Rehabilitative
Disposition

Accelerated Rehabilitation

Deferred Disposition

Deferred Adjudication

Probation without Verdict

Deferred Judgment

Conditional Discharge

Intervention in lieu of
Conviction

Pretrial Intervention

Judicial Diversion

What It Does Not Include

Jail Diversion

Pretrial Release

Post-Plea Diversion

The Goal of diversion

Reduce the likelihood of future arrests

through appropriate interventions based
on thorough assessments and tailored
to address the individual defendants
risks and needs

diversions Role
Early opportunity to interrupt cycle of crime

and reduce risk to public safety through

brief and effective intervention, focused on
changing behavior
Address behaviors targeted to minimize the

likelihood of further arrests

Conservation/redirection of criminal justice

resources to more serious crimes and

defendants

diversions Role

Emphasize a defendants accountability and

responsibility
Use alternative responses to address a

defendants conduct and needs that are

more appropriate and resource smarter
than traditional case processing/sentencing

diversions Benefits
Uses resources outside of courts and local

justice systembefore, during and after

intervention
Provides an early option in a problemsolving array that minimizes use of court
resources
Partnership with Problem-Solving Initiatives
Identifies gaps in community-based services
that limit options for interventions
Helps successful defendants avoid collateral
consequences of convictions that inhibit

Tenets of Diversion Programming

Whom does it divert?
Defendants

charged with first time

offenses or who have minimum criminal
histories or offenses tied to criminogenic
issues
What is its focus?
The defendants risk and needs
When does it occur?
Between arrest and adjudication

Tenets of Diversion Programming

Through effective interventions based on

best and promising practices, diversion

programs:
Offer defendants the chance to address
criminal behavior
Provide a proactive response to issues
related to future criminality

Diversion Today (2009 Survey)

Most diversion programs are county-based
Median annual budgets are about $160,000
Median staff size is about six
Tend to be part of larger agencies: nearly

35% are located within a pretrial services

agency, over 27% are under a prosecutors
office
Common programming includes risk/needs
assessment, regular drug testing, substance
abuse and mental health treatment,
counseling, and restitution

Legislative Underpinnings
There are 80 known diversion statutes in 45

states
Statutes are diverse from broad-brush
enabling legislation while to extremely
prescriptive formulas
Several statutes allow state legislatures
rather than prosecutors to outline rules and
requirements for diversion.

Foundational
Standards

diversion Standards
1977: NDAA National Prosecution Standards
1978 : NAPSA diversion standards (with

revisions in 1995 and 2008)

1976: ABA joint resolution favoring

expansion of diversion programs

2011: Forthcoming ABA Standards on

Diversion and Specialty Courts

NAPSA diversion/Intervention Standards

Initiated in 1978, revised in 1995 and again

in 2008 to incorporate changes in the

criminal justice system and to remain
relevant to practitioners
Latest revision incorporated
evidence based language
input from the most recent survey of
programs
legislation
court decisions
technological advances

Part II: Diversion/Intervention Option

2.1 The opportunity to apply/when in

process
2.2 Consult with counsel
2.3 Voluntary and with written consent
2.4 Should not preclude pursuing
other options

Part III: Eligibility

3.1 Broad eligibility criteria
3.2 No denial of access for

discriminatory reasons
3.3 Establishment of formal eligibility
guidelines
3.4 Program has the obligation to be
sure guidelines are consistently
applied
3.5 No denial based on ability to pay
or perform

Part V: Intervention Services

5.1 Comprehensive assessment
5.2 Individualized and realistic plans
5.3 Least restrictive means
5.4 Variety of approaches
5.5 Develop treatment/community

resources
5.6 Plans can be revised when
necessary

Core Elements

Core Elements
#1: Formalized cooperative

agreements between the diversion

program and key stakeholders to
assure program continuity and
consistency
#2: Defendant access to defense
counsel before the decision to
participate in diversion

Core Elements

#3: Specific due process protections

incorporated into programming

#4: Broad, equitable and objective
diversion eligibility criteria, applied
consistently at multiple points of case
processing

Core Elements
#5: Uniform and validated risk and

needs assessment to determine the

most appropriate and least restrictive
levels of supervision and services
needed
#6: Intervention plans tailored to
individual participant risks and needs
and developed with the participants
input

Core Elements

#7:

Graduated sanctions short of

termination as responses to participant
behavior
#8: Maximum possible privacy
protections for participants and
program records
#9: Independent program evaluations

Formalized Cooperative Agreements

Formal written agreements with criminal

justice and service provider partner agencies

that outline roles and responsibilities of all
parties
With a written agreement in place,
successive prosecutors, administrative
judges, and even new diversion program
directors, are less likely to change the
prescribed procedures
Agreements also provide transparency
about the rules governing diversion and

Defendant Access to Counsel

Standards 2.2 and 4.1

Participation is voluntary and must be based

on the defendants understanding of

possible rewards and sanctions
Access to counsel assures that the
defendant can discuss his or her legal
options and provides the information needed
for an informed decision

Specific Due Process Protections

Judicial review of prosecutorial decisions

To deny diversion placements and to terminate

program participation
Appropriateness of diversion conditions
Use of program information following termination
Substantive due process
whether prosecutors exercised discretion fairly
when denying diversion and terminating
agreements
whether conditions of supervision or treatment
were actually proper

Specific Due Process Protections

At the least, promising practices afford

defendants
the right to review prosecutorial
decisions to deny diversion
placement
written reasons for decisions to
terminate diversion placements
a right to challenge a termination
action

Diversion Eligibility Criteria

Standards 2.1 and 3.1

Broad, equitable and objective,

applied early and consistently at

multiple points of case processing

Risk and Needs Assessment

To meet diversions goal of reducing future

criminality, programs use risk and needs

assessments to identify a defendants risk of
future arrest and the level and type of
supervision and services needed to reduce
that risk
Uniform and validated risk and needs
assessment determine the most appropriate
and least restrictive levels of supervision
and the types of services needed

Risk and Needs Assessment

Risk and needs assessment validation

ensures that the instrument actually

measures and weighs factors
associated empirically with recidivism
or diversion noncompliance

Intervention Plans
Tailored to individual participants risks and needs

(gathered through assessment) and developed with

the participants input
Conditions relate to reducing the risk of future
arrests and can include attending treatment for
drug abuse, alcohol abuse, mental health
problems, or other specific need
Ensure against excessive conditions
Over-programming, especially of lower-risk
defendants, often leads to more technical
violations with no improvement of therapeutic
outcomes

Graduated Sanctions
Apply swift, certain and equitable responses

to supervision noncompliance to reduce the

likelihood of future infractions or recidivism
Administrative responses short of program
termination
Increasing community service hours
Modifying the diversion contract or level of
supervision
Changing drug testing or treatment
requirements

Privacy Protections

Guarantee, by means of interagency or

intra-agency operating agreements or

otherwise, that no information gathered in
the course of a diversion application or
participation in a diversion/intervention
program will be admissible as evidence in
the diverted case or in any subsequent civil,
criminal or administrative proceeding

END

QUESTIONS?