Get With the Diversionary Program

The front page of today's New York Times featured an article on diversionary programs. I've written about them before. To recap: a diversionary program is a way for a criminal defendant to have charges dismissed by following a set of court orders or requirements. We have quite a few in Connecticut which cover drug possession, DUI, family violence and other misdemeanors and lower felonies. Accelerated Rehabilitation ("AR") is available for people who do not have criminal convictions and have not used the program in the past ten years. A defendant applies for a program, the court determines if he or she is eligible and then decides to grant or deny the application. If granted, the defendant must follow the program. At a later date, if the program is successfully completed, the charges will be dismissed. If the program is not completed (or a defendant picks up a new charge or some other violation), the case goes back to where it was before the program and the defendant will likely have to decide whether to plead out or go to trial.

The Times article did not discuss Connecticut's programs, which is a shame, because ours are pretty good, especially compared to other states. The basis of the article was that in many states, diversionary programs have high fees and are often at the discretion of the prosecutor, not the judge. It did not provide many reasons but I gather that it's because most states, unlike Connecticut, have more local, county-based court systems in which prosecutors and judges have more autonomy. Connecticut has a unified court system. While our courts are divided into judicial districts and geographic area which have their differences, judges are selected at the state level and we have a State's Attorney, not district attorneys. 

The Times highlighted how many programs in the 37 states it surveyed have exhorbitant costs that many defendants cannot afford--and wind up failing out of the programs as a result. Many also are approved or denied by the prosecutor not the court. Again, this is probably because counties are on their own to fund programs or collect court revenue. In Connecticut our programs are statewide (with the exceptions of some community courts) and available in all criminal courts. While there are fees to apply and use the programs, there are fee waivers for indigent defendants and judges may allow community service in lieu of a fee. Prosecutors have a more nuanced role in the granting of programs. Prosecutors still control the charges (assuming probable cause has or can be found) and can either sub a charge into one that would make a person program-eligible or potentially charge someone out of a program. The State can also object to a program being granted. Moreover, while individual State's Attorney offices do not create their own programs, they may have informal deals that they regularly give out for charges to be nolle'd (community service, charitable contributions, anger management classes, etc.). The genesis of other states' programs may very well be these kinds of prosecution agreements. The article would have been better if it mentioned that.

Diversionary programs are a great idea. Many crimes are mistakes or lapses of judgment. A person should be given the chance to improve and earn a second chance. While a person may be eligible for a program, getting into it may require some persuasion (especially if a victim is involved). An attorney may also be able to get the State and the court on board to making someone eligible as well as the terms of the program. As always, when you are charged with a crime, hire an attorney. 


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