Presentat ion for the New Or leans R ac ia l Just i ce Task

Force

By Spurgeon Kennedy

February 11 , 2011New Or leans Louis iana

Diversion Programming

Foundational Standards

Core Elements

Outcome and Performance Measures

diversion

Developing/ImplementingA Diversion Program

Session Goals

Define diversion as it is currently practiced.Outline the statutory and legislative supports

of diversionExamine diversion’s benefits to local criminal

justice systems Discuss diversion’s core elements and

fundamental practices

Diversion

diversion

Any voluntary option that provides alternative criminal case processing for defendants and ideally results in a dismissal of the charge(s).

Diversion programs feature: (1) uniform eligibility criteria; (2) structured delivery of services and supervision; and (3) dismissal—or its equivalent—of criminal charges upon successful completion of the required term and conditions of diversion.

(NAPSA Performance Standards and Goals for diversion/ Intervention (2008). This definition is supported by the upcoming ABA Standards, Federal and State statutes, and ongoing diversion program practices)

What This Includes

Accelerated Rehabilitative Disposition

Accelerated Rehabilitation

Deferred Disposition Deferred Adjudication

Probation without Verdict Deferred Judgment

Conditional Discharge Intervention in lieu of Conviction

Pretrial Intervention Judicial Diversion

What It Does Not Include

Jail Diversion

Pretrial Release

Post-Plea Diversion

The Goal of diversion

Reduce the likelihood of future arrests through appropriate interventions based on thorough assessments and tailored to address the individual defendant’s risks and needs

 

diversion’s Role

Early opportunity to interrupt cycle of crime and reduce risk to public safety through brief and effective intervention, focused on changing behavior

Address behaviors targeted to minimize the

likelihood of further arrests

Conservation/redirection of criminal justice resources to more serious crimes and defendants

 

diversion’s Role

Emphasize a defendant’s accountability and responsibility

Use alternative responses to address a defendant’s conduct and needs that are more appropriate and resource “smarter” than traditional case processing/sentencing

diversion’s Benefits

Uses resources outside of courts and local justice system—before, during and after intervention

Provides an early option in a problem-solving array that minimizes use of court resources

Partnership with Problem-Solving InitiativesIdentifies gaps in community-based services

that limit options for interventionsHelps successful defendants avoid collateral

consequences of convictions that inhibit reaching economic and education goals

Tenets of Diversion Programming

Whom does it divert? Defendants charged with first time

offenses or who have minimum criminal histories or offenses tied to criminogenic issues

What is its focus? The defendant’s risk and needs

When does it occur? Between arrest and adjudication

Tenets of Diversion Programming

Through effective interventions based on best and promising practices, diversion programs: Offer defendants the chance to address

criminal behavior Provide a proactive response to issues

related to future criminality

Diversion Today (2009 Survey)

Most diversion programs are county-basedMedian annual budgets are about $160,000Median staff size is about sixTend to be part of larger agencies: nearly

35% are located within a pretrial services agency, over 27% are under a prosecutor’s office

Common programming includes risk/needs assessment, regular drug testing, substance abuse and mental health treatment, counseling, and restitution

Legislative Underpinnings

There are 80 known diversion statutes in 45 states

Statutes are diverse – from broad-brush enabling legislation while to extremely prescriptive formulas

Several statutes allow state legislatures rather than prosecutors to outline rules and requirements for diversion.

Foundational Standards

diversion Standards

1977: NDAA National Prosecution Standards

1978 : NAPSA diversion standards (with revisions in 1995 and 2008)

1976: ABA joint resolution favoring expansion of diversion programs

2011: Forthcoming ABA Standards on Diversion and Specialty Courts

NAPSA diversion/Intervention Standards

Initiated in 1978, revised in 1995 and again in 2008 to incorporate changes in the criminal justice system and to remain relevant to practitioners

Latest revision incorporated evidence based language input from the most recent survey of

programs legislation court decisions technological advances

Part II: Diversion/Intervention Option

2.1 The opportunity to apply/when in process

2.2 Consult with counsel2.3 Voluntary and with written consent2.4 Should not preclude pursuing

other options

Part III: Eligibility

3.1 Broad eligibility criteria3.2 No denial of access for

discriminatory reasons3.3 Establishment of formal eligibility

guidelines3.4 Program has the obligation to be

sure guidelines are consistently applied

3.5 No denial based on ability to pay or perform

Part V: Intervention Services

5.1 Comprehensive assessment5.2 Individualized and realistic plans5.3 Least restrictive means 5.4 Variety of approaches5.5 Develop treatment/community

resources5.6 Plans can be revised when

necessary

Core Elements

Core Elements

#1: Formalized cooperative agreements between the diversion program and key stakeholders to assure program continuity and consistency

#2: Defendant access to defense counsel before the decision to participate in diversion

Core Elements

#3: Specific due process protections incorporated into programming

#4: Broad, equitable and objective diversion eligibility criteria, applied consistently at multiple points of case processing 

Core Elements

#5: Uniform and validated risk and needs assessment to determine the most appropriate and least restrictive levels of supervision and services needed

#6: Intervention plans tailored to individual participant risks and needs and developed with the participant’s input

Core Elements

 #7: Graduated sanctions short of termination as responses to participant behavior

#8: Maximum possible privacy protections for participants and program records 

#9: Independent program evaluations 

Formalized Cooperative Agreements

Formal written agreements with criminal justice and service provider partner agencies that outline roles and responsibilities of all parties

With a written agreement in place, successive prosecutors, administrative judges, and even new diversion program directors, are less likely to change the prescribed procedures

Agreements also provide transparency about the “rules” governing diversion and consistency in treatment of participants

Defendant Access to Counsel

Standards 2.2 and 4.1Participation is voluntary and must be based

on the defendant’s understanding of possible rewards and sanctions

Access to counsel assures that the defendant can discuss his or her legal options and provides the information needed for an informed decision

Specific Due Process Protections

Judicial review of prosecutorial decisions To deny diversion placements and to terminate

program participation Appropriateness of diversion conditions Use of program information following termination

Substantive due process whether prosecutors exercised discretion fairly

when denying diversion and terminating agreements

whether conditions of supervision or treatment were actually proper

Specific Due Process Protections

At the least, promising practices afford defendants the right to review prosecutorial

decisions to deny diversion placement

written reasons for decisions to terminate diversion placements

a right to challenge a termination action

Diversion Eligibility Criteria

Standards 2.1 and 3.1Broad, equitable and objective,

applied early and consistently at multiple points of case processing 

Risk and Needs Assessment

To meet diversion’s goal of reducing future criminality, programs use risk and needs assessments to identify a defendant’s risk of future arrest and the level and type of supervision and services needed to reduce that risk

Uniform and validated risk and needs assessment determine the most appropriate and least restrictive levels of supervision and the types of services needed

Risk and Needs Assessment

Risk and needs assessment validation ensures that the instrument actually measures and weighs factors associated empirically with recidivism or diversion noncompliance

Intervention Plans

Tailored to individual participant’s risks and needs (gathered through assessment) and developed with the participant’s input Conditions relate to reducing the risk of future

arrests and can include attending treatment for drug abuse, alcohol abuse, mental health problems, or other specific need

Ensure against excessive conditions “Over-programming,” especially of lower-risk

defendants, often leads to more technical violations with no improvement of therapeutic outcomes

Graduated Sanctions

Apply swift, certain and equitable responses to supervision noncompliance to reduce the likelihood of future infractions or recidivism

Administrative responses short of program termination Increasing community service hours Modifying the diversion contract or level of

supervision Changing drug testing or treatment

requirements

Privacy Protections

Guarantee, by means of interagency or intra-agency operating agreements or otherwise, that no information gathered in the course of a diversion application or participation in a diversion/intervention program will be admissible as evidence in the diverted case or in any subsequent civil, criminal or administrative proceeding

END

QUESTIONS?