Pretrial Diversion

Pretrial diversion is an informal feature of the American criminal process that emerged in the late 1960s with the trappings of a formal "program." In 1973, the National Advisory Commission on Criminal Justice Standards and Goals defined pretrial diversion as "halting or suspending before conviction formal criminal proceedings against a person on the condition or assumption that he will do something in return" (U.S. Department of Justice, p. 27). By this definition, the commission sought to distinguish formal diversion programs from the vast array of informal mechanisms by which cases are routinely removed from the criminal justice system. A police officer's decision to ignore an incident or to "reprimand and release," a prosecutor's decision to decline or discount a charge, and a judge's decision to dismiss a case before trial or plea are all informal pretrial diversion procedures founded on the broad discretion available to decision-makers in a system that disposes of most of its cases without trial.

Formal diversion programs grew in response to broad disaffection with the vagaries of these discretionary release mechanisms, as well as to the perceived failure of the traditional criminal process to affect the behavior of those who remained in the system. Deinstitutionalization, decriminalization, diversion, and community corrections were all parts of the general search for alternatives to traditional criminal sanctions. All retained the goal of rehabilitation but sought to achieve it by strengthening the offender's ties to the community and forging more explicit links between individual behavior and the response of the criminal justice system.

In its traditional forms, pretrial diversion typically placed the defendant out of the reach of criminal sanctions, making him, in the candid view of one observer, "technically free to tell the diverter to go to hell" (Cressey and McDermott, p. 6). In its elaborated form, pretrial diversion involved a formal bargain with the accused. After arrest, selected defendants charged with nonserious offenses were offered a postponement of court action if they agreed to participate in a program of employment or counseling services for periods ranging from ninety days to one year. Satisfactory completion of the program resulted in a dismissal of charges; "failure" meant the resumption of criminal proceedings. From its modest beginnings in 1967 as an outgrowth of proposals for community treatment advanced by the President's Commission on Law Enforcement and Administration of Justice, the diversion movement flourished with generous federal funding support and the endorsement of local officials eager to embrace a strategy that promised to move the accused away from the jurisdiction of overburdened criminal courts and into an effective treatment alternative. By 1978, almost every state claimed a diversion program in one or more jurisdictions, and many had been formalized through the enactment of statewide enabling legislation.

Even as diversion was gaining strength, however, doubts were voiced in the academic community. Although early evaluations created high expectations that formal diversion programs would resolve many of the problems of traditional criminal justice treatment, more dispassionate observers found little evidence to support these claims (Zimring; Morris; Mullen). Even when formalized as an official "program," diversion's treatment of due process issues also left constitutional scholars uneasy (Freed; Note). Eligibility standards were often highly restrictive, and termination procedures remained almost wholly discretionary. Moreover, regardless of the locutions employed, the imposition of a rehabilitative "sanction" prior to trial suggested a presumption of guilt and the prospect of a new form of pretrial sentencing. Perhaps most important, these early critical reviews advanced the notion that diversion strategies might inadvertently serve to "widen the net of social control"—a concept that would be rediscovered at every turn in the movement to develop community-based treatment alternatives. Likened by Norval Morris to George Orwell's nightmare of the benevolent state in Nineteen Eighty-Four, the perceived danger was that the mere presence of another form of sanction—in particular, one that avoided the punitive overtones of traditional sanctions—might lead to the diversion of defendants who would otherwise avoid official attention because their cases were too inconsequential or the prosecutor's case too weak to support formal conviction and sentencing. Thus, although intended precisely to constrain the reach of the criminal justice system, diversion threatened instead to extend the scope of official control.

Despite these notes of caution, popular support for the diversion concept persisted until the late 1970s. Throughout that decade, innovation or expansion in criminal justice programming had become virtually synonymous with a grant from the Law Enforcement Assistance Administration (LEAA). With the termination of the LEAA block grant program in 1980 and the proliferation of increasingly costly standards devised to protect the legal rights of diversion participants (National Association of Pretrial Services Agencies), the general diversion movement began to lose momentum.

At the end of the decade of the 1980s, however, diversion would be reinvented as a central component of a new movement to supervise and rehabilitate drug dependent defendants remanded to treatment by drug court judges. In this application, diversion or deferred prosecution was an important tool to compel drug abusers to accept and remain in drug treatment. Stimulated by the rapid increase in felony drug cases that surfaced in the 1980s, the new drug courts gave the diversion concept new legitimacy. Fears of expanding the net of social control were less salient when the expansion enabled the court to do something more than nothing with a class of defendants who were clogging court calendars and promised to return again and again for drug-related crimes.