Pretrial Diversion

A tremendous range of programs emerged in the 1970s under the aegis of probation agencies, prosecutors, community service groups, or independent contractors. Although specific client groups and service configurations differed accordingly, the mechanics of the diversion process were generally similar. Eligibility was first defined by entry standards that restricted participation by such variables as alleged offense, age, prior record, and history of substance abuse. Although a formal admission of guilt was strongly discouraged by professional standards, a few programs expected the defendant to acknowledge criminal responsibility. Once identified, a typical program candidate agreed to participate by waiving the right to a speedy trial and indicating some willingness to cooperate with the program. The prosecutor, presiding judge, or both were also required to concur with the project's choice of diversion candidates.

After entry, participants typically spent three to six months under project supervision, receiving direct or referral assistance in meeting their needs for personal and vocational counseling, training, job placement, remedial education, and a variety of supportive services. At any time after entering a program, defendants who violated their projects' conditions for diversion (generally by absconding, incurring new charges, or failing to cooperate with the treatment regime) were terminated from the project and returned to the court on their original charge. Those who satisfied their obligations were recommended for dismissal, and, with the cooperation of the prosecuting attorney or judge, their cases were dropped at the conclusion of the pretrial period.

Clearly, the entire process was designed to be highly sensitive to the motivation of the defendant, the discretion of the program staff, and the prerogatives of the court and prosecutor. Moreover, the need to establish official confidence in project efforts created substantial pressures to divert minimum-risk cases and to terminate and thereby avoid final responsibility for defendants who evidenced little or no progress. In most programs the inevitable result of this process was the delivery of intensive services to small numbers of low-risk defendants. If pretrial diversion had been conceived solely as a screening device for prosecutors, the systematic exclusion of higher risks could be considered a rational policy. If, however, it was conceived as a program designed to reduce recidivism through intensive treatment, then the inclusion of defendants least likely to recidivate could hardly be considered a wise use of scarce criminal justice resources. As Franklin Zimring has suggested, either the wrong group was receiving the right services or the right group was receiving the wrong treatment.