Informal Disposition - The Decision-making Process

Traditionally, the decision whether to proceed by means of an informal disposition has usually begun with the defense attorney, and this remains true to date. It is incumbent on defense attorneys to identify those cases that would generally merit informal disposition and request such disposition from the prosecutor, court, and/or program administrator. In some instances, statutes delineate factors that prosecutors and/or courts should consider in making the determination. Factors typically considered relevant to the decision include: the individual's amenability to rehabilitation, motivation in committing the crime, employment record, family ties, age, past criminal record, and mental and physical condition. For VORP programs, the willingness of both the victim and offender to participate in mediation are central to the referral decision.

Once a defense attorney determines that an individual should be considered favorably for an informal disposition, the next step will depend on the nature of the disposition sought. For pretrial diversion and referral to a rehabilitative program, the program administrator may be the first person to review the individual's request for admission into the program. If the program administrator determines that the individual does qualify for admission, then the next person who considers the request may be the prosecutor or it may be the judge.

Statutes and court rules governing pretrial diversion programs vary, but at least in some places it is no longer within the absolute discretion of the prosecutor whether to refer an individual to pretrial diversion. Some statutes and court rules permit courts to dismiss charges and refer individuals to pretrial diversion, even over the objection of the prosecutor. In other places, the prosecution maintains a veto power over the decision. Efforts were made in the 1970s by highly regarded groups like the American Law Institute (ALI) to convince prosecutors to publish guidelines such as the American Law Institute's (ALI) Model Code of Pre-Arraignment Procedure (1975) to make public the criteria upon which prosecutorial charging decisions are made. For the most part, these efforts have failed, and prosecutors continue to make these decisions without providing the public any means for evaluating the decision-making process.