Informal Disposition

Prosecuting authorities in the American criminal justice system have broad discretion in deciding how to handle a criminal matter. A prosecutor may file formal charges against an individual suspect and pursue a guilty verdict by means of a plea bargain or trial. The vast majority of cases that are processed to a verdict within the criminal justice system result in the conviction and punishment of the offender, with only a tiny percentage resulting in acquittal. Alternatively, a prosecutor (or, in some instances, the police) can dispose of a case by dismissing the charges outright, if the circumstances warrant such a disposition. Principled reasons that a prosecutor might dismiss charges include a determination that there is insufficient evidence to establish guilt beyond a reasonable doubt, the failure of a material witness to cooperate with the prosecution, a determination that the evidence was unlawfully obtained by the police, or for policy reasons. Lying in between these two options is a third reason—to seek a satisfactory disposition through informal means.

The term informal disposition refers broadly to the manner of obtaining a final disposition of a criminal matter without reliance on the normal processes of the criminal justice system that would result in conviction of the offender. Informal dispositions are obtained without any judicial determination of guilt or innocence. It should be noted, however, that many of the programs available for informal dispositions may also be utilized as sentencing alternatives for those convicted through the traditional criminal process. Thus, the demarcation between the informal and formal processes may not be clear, but rather may resemble a fine continuum of options available to prosecuting authorities or the police.

A principal form of informal disposition is a process known as "pretrial diversion" by which an alleged offender's case may be transferred into structured programs for rehabilitative purposes, such as mental health treatment or drug or alcohol abuse treatment, or for the payment of restitution and fines or community service. Alternatively, the criminal prosecution may be "deferred" for a period of time with the understanding that unless the person commits a subsequent offense in that period, the charges will be dismissed. Yet another option is to transfer an individual's case to another forum that would provide warnings against future wrongdoing as well as periodic supervision. Examples include the transfer of a minor to juvenile court and the dismissal of domestic violence cases in exchange for the individual's consent to permit community supervision.

Thus, the informal disposition process serves a screening function to determine which cases merit prosecution and which merit an alternative mode of treatment, usually for purposes of rehabilitation. Informal dispositions also serve the purpose of reducing the overburdened criminal caseloads of prosecutors and judges, as well as, in some jurisdictions, public defenders. The drive to reduce caseloads, cut costs, and promote the rehabilitation of offenders who have the potential to become law-abiding citizens has fueled a trend to create innovative new programs and even new forms of "courts" for producing the desired results without resort to the traditional criminal adjudication process. A renewed interest in better serving the needs of victims of crime has also spurred the development of programs for mediating cases between the offender and the victim, in lieu of the formal criminal process.

This entry surveys the primary types of informal dispositions available to the criminal justice system and explores both the availability of such modes of disposition as well as the process by which the decision to proceed informally is made.