Pretrial Diversion

To the extent that many applications of diversion failed to replace postconviction remedies, they nonetheless succeeded in increasing the alternatives available to the court for differential case processing. This goal implied that even if formal prosecution were unwarranted for the majority of program participants, the availability of an alternative more onerous than no action might usefully serve the interests of law and order. In this view, the dangers of "expanding the net" were less ominous than the prospect of screening out cases simply because the system was too overloaded to pursue those charged with minor offenses. As expressed in the goals of one of the earliest prosecutor-based diversion projects, a legitimate and major need exists to process and treat persons who are lawbreakers but not criminals (Perlman). Although this version of the goal appeared to define diversion more as a convenience to prosecutors than as a rehabilitative tool, other statements emphasized the therapeutic value of early intervention and treatment—presupposing that, left unattended, today's lawbreakers were tomorrow's career criminals.

Then came the drug court, and the concept of therapeutic jurisprudence acquired new meaning. In drug cases, judges faced two equally unpalatable alternatives—probation or incarceration, neither of which could promise to do anything about the offender's underlying substance abuse problem. Here at last a clear and compelling case could be made for bringing together criminal justice and public health interests in a new, problem-solving approach to justice. In giving a clear voice to the premise that a collaborative approach is needed to solve medical-legal problems, drug courts may have achieved their most important victory.