Pretrial Diversion
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.
Goals and program procedures
Measured against any single pretrial reform effort, the multiple ambitions of the early pretrial diversion programs were extraordinary. The courts would gain flexibility in case processing, court congestion and costs would be reduced, and prison and jail populations would decline. Program participants would avoid the stigma of criminal prosecution and receive a variety of helping services that would enhance their community adjustment and decrease recidivism. In theory, there was something for everyone. In practice, no single program could hope to achieve such diverse aims.
At the outset, it proved difficult to reconcile the combined interests of intensive treatment and diversion of large numbers of cases from the criminal justice system. The diversion concept called for removal from the jurisdiction of the court those defendants who might not require a full criminal disposition—by the usual definition, minimum-risk cases. At the same time, the costs of treatment could hardly be justified unless programs served higher-risk clients whose criminal careers might be influenced by the delivery of services. In the context of the diversion process, the dilemma was irresolvable. To be considered for a pretrial diversion program, defendants were required to pass a number of screening tests. In most cases, the logic of this screening was either implicitly or explicitly the selection of minimum-risk defendants.
General diversion programs
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.
Diversion of drug abusers
Ironically, the group destined to become the most promising class of diversion cases—the drug dependent—was specifically excluded from most general diversion programs. Though some diversion programs accepted persons charged with minor drug-related offenses, most such programs lacked the resources to promote specialized treatment and, therefore, avoided defendants with known chemical dependencies. Despite the inability of general deferred prosecution programs to accommodate these defendants, there have been numerous attempts to address their needs for treatment. Approaches have ranged from compulsory institutional treatment programs to voluntary community-based treatment alternatives imposed as conditions of pretrial release, probation, or parole. Prior to the development of drug courts, the broadest attempt to use the arrest process to absorb unmotivated drug users into treatment was the TASC (Treatment Alternatives to Street Crime) Program developed in 1971 by the President's Special Action Office of Drug Abuse Prevention and funded in cities nationwide by the LEAA.
TASC itself operated solely as a referral mechanism, generally relying on existing community-based treatment facilities to provide the necessary supervision and services. Three functions were commonly performed by TASC staff: (1) screening arrestees, identifying abusers, and determining their eligibility for TASC; (2) diagnosing individual problems and locating appropriate treatment resources; and (3) monitoring participant progress and maintaining contact with the criminal justice system. Initially conceived as a pretrial diversion program for heroin addicts, in many cities the design was altered to include all drug abusers who were intercepted at a variety of points of entry and exit from the criminal justice system. Nonetheless, eligibility criteria were still fairly restrictive, resulting in the admittance of only a small proportion of drug users appearing before the courts. Moreover, because TASC generally operated solely as a referral agency, it was often difficult for TASC staff to monitor progress in treatment or to ensure the defendant's compliance with other court-imposed conditions.
The emergence of drug courts
The drug court approach improved on the TASC model in a number of ways, principally by forging a stronger role for the judiciary: specific courtrooms were dedicated solely to drug cases, the presiding judge was given a more proactive role in fashioning treatment plans, and drug court judges also became central figures in monitoring treatment and program compliance.
No longer an extralegal process managed by external social welfare programs, diversion became a fully integrated part of the criminal process for drug court cases, using the coercive power of the court to promote abstinence and compel participants to stay in treatment (Belenko, 1998). While many had been restive about the notion of compelling defendants to accept employment and social services under the threat of prosecution, when applied to the problems of drug use, "coerced treatment" was now viewed as the program's primary strength (Drug Strategies).
Most observers credit Miami's Dade County Circuit Court for developing the first treatmentoriented drug court in 1989. Within ten years the concept of drug treatment courts gained national prominence and estimates of the number in planning or operation ranged from four hundred to six hundred. During those ten years, an estimated 140,000 drug offenders had entered drug court programs (Belenko, 1999). Initially designed as a diversion program for less serious, primarily possession-offenders, by the year 2000 most had established probation and post-pleabased programs for more serious offenders with long histories of drug abuse (National Drug Court Institute).
The initial impetus for the extraordinary growth of drug courts can be traced to the volatile market for crack cocaine that developed in the 1980s, bringing with it a dramatic increase in the rates that young people (particularly African American males) killed and were killed (McDonald). Although crack cocaine use peaked in the mid-1980s, heroin made a comeback in the early 1990s and abuse of methamphetamines began to show sharp increases in the mid-1990s. During these years, the federal government responded with a "war on drugs" that provided a massive infusion of federal dollars for drug law enforcement (Brown). Beginning in the mid-1970s with the passage in many states of tough mandatory minimum prison sentencing laws for drug trafficking and moving to the passage at the federal level of anti-drug statutes in 1986 and 1988, the entire criminal justice system focused on the war on drugs. Annual arrests for drug crimes increased from 416,000 in 1970 to 1.6 million in 1998 with corresponding increases in the number of drug law offenders in state federal prisons (McDonald). Yet despite the unprecedented increases in arrests and incarcerations, it was clear that these traditional solutions had not materially affected levels of drug-related crime. The stage was set for introducing treatment into the adjudication process.
During the decade of the 1990s, the drug court movement also benefited from the endorsement of U.S. Attorney General Janet Reno (who had founded Miami's program when she served as Florida's state attorney for Dade County) and the substantial federal support provided by the Department of Justice. By 1995, a separate Drug Courts Program Office was established within the U.S. Department of Justice with $12 million to support drug courts, growing to $40 million by fiscal 1999.
Impact on recidivism
The fundamental ambivalence of the goals of diversion was reflected in a number of early evaluations. In addressing the issue of participant recidivism, many programs pointed to a low absolute level of rearrest as a measure of treatment success, seldom recognizing that in the absence of a comparison group this measure did not distinguish the effects of the selection process from actual behavioral change. Many quasi-experimental designs were scarcely more persuasive. Not surprisingly, project evaluators found positive results after comparing participants before and after they were designated as successful, comparing only the successful participant group with all members of an untreated group, or comparing the performance of failures with that of successes. Since each of these designs suffered the obvious bias, it was impossible to determine whether the observed difference was a change attributable to treatment or simply a confirmation that the successful group had been less inclined to criminality in any event.
Even the more comprehensive evaluative efforts were frequently forced to rely on matched group studies in lieu of random assignment procedures as a result of resistance by program personnel to the notion of withholding services from eligible participants. In these designs, defendants who—on paper—appeared to match the characteristics of eligible participants were selected retrospectively from closed case files. Since entrance criteria always required participants to volunteer for the program and to pass more than a paper screening, these matching exercises seldom survived careful scrutiny. In only one study of the Manhattan Court Employment Project, one of the nation's oldest and largest diversion programs, was a satisfactory, retrospective comparison-group selection methodology used. This 1974 reanalysis demonstrated no effect of treatment on recidivism (Zimring). Five years later, in 1979, the same project issued the first definitive experimental study of adult pretrial diversion, which also failed to find any significant effect on recidivism (Baker). Ironically, although resistance to random assignment procedures has typically been founded on legal and ethical objections to the denial of services to eligible groups, the evaluation did not find participants receiving more services or less exposure to the criminal justice system than did members of the control group.
Turning to the literature on the early diversion programs for drug cases, TASC evaluations often repeated the same mistakes observed in evaluations of general deferred prosecution programs. As a result the only firm conclusion that could be drawn is that costs were high and participant impact of any kind, hard to detect.
The drug court successors to TASC (many of which annexed TASC programs) have generated a substantial evaluation literature. A report issued by the U.S. General Accounting Office (GAO) in July 1997 reviewed the results of twenty evaluations of sixteen drug courts and concluded that while positive outcomes were reported, they were typically based on quasi-experimental designs that did not permit any definitive conclusions about impacts on recidivism or drug use. For example, many authors persisted in making invalid comparisons between program graduates and drop-outs, believing that these comparisons demonstrated a positive program effect (Brown). Subsequent reviews in 1998 and 1999 by Belenko were considerably more optimistic than the GAO report, although the author acknowledged the limitations of the available data. In his 1999 review of twelve evaluations that measured post-program recidivism of participants and a comparison sample, he found lower rates of recidivism in seven studies, comparable rates in three, and mixed results in two (Belenko, 1999).
Truitt and Rhodes (2000) examined seven of the most robust evaluations and concluded that even among the best available studies, outcomes ranged widely with four programs finding an impact on recidivism and three (including two based on true experimental designs) showing comparable rates of recidivism. A critical review of those showing positive effects suggested the results were confounded by selection bias that may have caused lower risks to enter drug court. Attempting to correct for that bias in a study of programs in Escambia County, Florida, and Jackson County, Missouri, Truitt and Rhodes found a strong treatment effect in Escambia County when recidivism is defined as an arrest for a felony but no demonstrable effect when both felonies and misdemeanors were considered. In Jackson County, the authors found a sizable treatment effect even when regarding felony and misdemeanor arrests as a single outcome measure.
In the end, however, the best that can be said is that while participants are under the supervision of a drug court (and subject to random drug testing and judicial oversight of their progress in treatment) recidivism appears to be held in check. Thereafter, the results are mixed with the most rigorous evaluations finding no effect on recidivism.
Results of drug treatment, employment, and social services
Many of the earliest diversion projects were funded initially by the U.S. Department of Labor as an extension of its mandate to assist hard-to-employ workers. Although many project goal statements posited a relationship between unemployment and crime, it was not entirely clear that program sponsors were eager to link the success of their employment services to prospects of reduced recidivism. In this view, pretrial diversion was simply a strategy to gain early access to the economically disadvantaged at a time when the crisis of arrest might promote their receptivity to employment assistance. At the same time, the provision for a dismissal of charges in successful cases would eliminate the conviction record, an acknowledged barrier to employment prospects of young adults.
At the outset, adding social performance criteria to definitions of criminal conduct raised serious questions about the proper limits of criminal jurisdiction. Did the results of program services justify this intrusion? Again, the absence of appropriate comparison groups was a major problem in evaluating program performance. In the single available experimental evaluation, some improvements were recorded, but these could not be attributed to the effects of program participation since similar improvements were found among members of the control group.
In the final analysis, the pretrial intervention design failed to provide a fair test of the notion that employment services could accomplish their manpower development objectives. In the context of a ninety-day period of pretrial supervision, it was not clear that projects could do much more than develop stopgap employment—jobs that were clearly necessary to meet program criteria for a dismissal recommendation, but not sufficient to support expectations of sustaining significant or lasting change. At best, another line was drawn in the conflict between the goals of diversion and treatment.
In contrast to the early manpower-based programs, the drug court diversion model recognized that treatment duration was related to treatment outcome and typically required a minimum time in treatment of one year. Belenko reported that approximately 60 percent of participants were still in treatment after one year—a significantly higher retention rate than most out-patient and residential drug treatment programs (Belenko, 1999).
Has the increased intensity of treatment allowed programs to succeed in breaking cycles of drug dependency? Again, while under court supervision—and "unlike a traditional court judge, drug offenders may appear before the drug diversion judge twenty to thirty times during the course of the treatment plan" (Brown, p. 85)—programs have shown some improvement in rates of abstention and less frequent periods of relapse. Mirroring the findings on recidivism, however, post-program results have been mixed.
A majority of drug courts have also acknowledged the difficulty of successfully treating participants' addiction without attending to other social and economic needs. Accordingly, most programs provide vocational, educational, manpower, and other rehabilitative services. Once again, available data on the impact of these services are too limited to draw conclusions.
Alleviating the burden on court and correctional system
Proponents of many of the first diversion programs often cited the opportunities to relieve congested court calendars and overburdened probation caseloads as a central rationale for the development of intensive pretrial service alternatives. However, although these benefits were freely announced, they were seldom carefully explored. In fact, on the strength of their numbers alone, few projects could have demonstrated any significant reduction in court or correctional caseloads. Moreover, the diversion process itself still involved calendaring cases, with at least one and frequently two court appearances during the period of deferred prosecution.
Demonstrating the cost savings of the diversion approach proved equally problematic. Many programs handled limited caseloads and maintained a fairly costly service apparatus, resulting in high per capita costs. Even the lower-cost programs emerged as relatively expensive alternatives when program budgets were adjusted for the additional costs incurred by the court in processing unsuccessful cases. If the programs were truly functioning as alternatives to incarceration, justifying the expense would not be difficult. In the absence of a diversion alternative, however, available evidence suggested that few project participants would have faced a jail sentence.
Notably, reducing court caseloads was not a goal of the drug court, which sought instead to increase the court's attention to drug cases with dedicated courtrooms and judicial officers. Although many analysts have compared these costs with the costs of incarcerating drug-involved offenders, more often diversion has been an alternative to doing nothing: Many diversion participants have been first-time felony drug possession cases who would typically be placed on probation with minimal to no treatment or supervision. Demonstrating savings therefore requires demonstrating lower recidivism among drug court participants. As we have seen, this measurement task has thus far produced ambivalent results.
Expanding the options for case processing
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.
Conclusion
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.
Joan Mullen
See also Alcohol and Crime: Behavioral Aspects; Alcohol and Crime: Treatment and Rehabilitation; Dispute Resolution Programs; Informal Disposition; Mentally Disordered Offenders; Rehabilitation.
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