Pretrial Diversion

By the close of the 1970s, the earliest pretrial diversion programs had failed to demonstrate much promise as a means for achieving rehabilitation or resource conservation. Diversion programs could be justified only by their utility in providing the prosecutor with another disposition option—and then only if sufficient resources were available to permit expenditures on cases not amenable to full prosecution. As a result diversion gave clear form to the threat of a widened net of social control.

The fact that the new control mechanisms were dressed in the benign guise of community treatment was hardly comforting to those who saw the specter of Orwell's dystopia, where farreaching social controls replaced the narrow constraints of the criminal law. In defense of their treatment of those charged with minor offenses, zealous program sponsors only reinforced this vision by arguing that descriptions of their clients' legal problems often failed to reveal their more serious needs for social assistance. Few stopped to ask whether this enthusiasm for solving social problems under the aegis of the legal process might not result in "considerable dilution of the desirable pressures to reduce and clearly define the scope and purposes of the criminal law" (Zimring and Frase, p. 395).

With the development of the drug court at the close of the 1980s, the diversion concept, called in its early days "a practice in search of a theory" (Vorenberg and Vorenberg, p. 151), found its strongest rationale. Diversion or deferred prosecution would be used to motivate participation in court-supervised drug treatment. Instead of simply turning over the case to treatment personnel, the judge would remain on point, holding frequent status hearings and reviewing urinalysis results and reports from treatment providers. Diversion now functioned not as an alternative to the traditional court process but as an integral part of a new treatment-oriented court process.

Those who embraced the new therapeutic jurisprudence looked forward to the development of other treatment-based specialty courts (for domestic violence, for DUI cases, or for offenders with mental health problems) and asked that law schools recognize the moral imperative of the court to treat and not simply adjudicate cases (Simmons). Others relived early warnings about the appropriate scope of the criminal law and asked whether justice and therapy could be combined without producing a "therapeutic state" even more flawed than the system it was designed to replace (Cohen).

Absent from this debate is any clear and compelling evidence that the new treatment-oriented court process has seriously affected the incidence of drug-related crime. We know the process has succeeded in interrupting drug use and related crime—at least for the length of time participants remain in treatment and are subject to random drug tests and close judicial supervision. The extent to which these results are sustained when participants leave the program is less clear. Yet even if post-program performance proves disappointing, it may still be said that significant reform has been achieved. Drug courts have engaged many offenders in their first treatment experience. They have also provided offenders with far closer supervision and accountability than they would have received under other forms of criminal justice intervention. In so doing, the credibility of enforcement agencies has been strengthened; a sense of humanity has been injected into a process not known for its helping orientation; and closer ties have been forged between the accused, the justice system, and the treatment community. A structure has been put in place for integrating a medical treatment with the criminal process and may now only await advances in treatment technology to prove its worth.