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Data Stories

Deep dives into the Eighth Judicial District Attorney's office.

Using Diversion in the Criminal Justice System

By Gordon McLaughlin · 2023-01-12

The 8th Judicial District Attorney “Diversion” program ensures justice and accountability while promoting individual growth and allowing an individual to avoid the unnecessary collateral consequences associated with convictions or adjudications. The program targets individuals with minimal criminal history, charged with lower-level offenses, who are willing to take responsibility for their actions and provides an opportunity to resolve their cases outside of the traditional court process. Outcomes of diversion are aimed at preventing future unlawful behavior, repairing harm to victims of crime and the community, and reducing the number of cases in the criminal justice system. Cases considered for diversion undergo a screening process with the diversion team and deputy district attorney. Our office has discretion to accept or reject any case for diversion based upon the specific facts of the case, the history and needs of the individual, the safety of the community, and the input of the victim. A Diversion agreement pauses the criminal proceedings while the defendant agrees to complete certain conditions, determined by a person-centered response to the individual, within a specific time frame, typically three months. This means that person will not have to plead “guilty” or “not guilty.” Conditions could include useful public service or taking classes that address the underlying cause of the criminal behavior. If they successfully meet the conditions, their charges are dismissed and the case is sealed. If the person does not comply with the conditions, the case continues on and can be prosecuted just as it would have been. We began our adult diversion program in the fall of 2021 and expanded it significantly in 2022.

Our office is currently working on how to best include diversion data on our dashboard, but we were able to share our last almost four years of data with Larimer County as part of an annual presentation of the office’s performance measures. Our goals are to properly and appropriate divert and defer eligible defendants in ways that continue to hold people accountable while not unnecessarily burdening the defendants or the criminal justice system. The diversion efforts of our office have grown and evolved, and we continue to seek grant funding to support our pilot efforts. Currently we have Diversion staff and programs through a Larimer County Behavioral Health Grant (to divert defendants with behavioral wellness needs), and staff and programs through a state Adult Diversion Grant (to increase the number of cases we can divert, and to develop an a Adult Restorative Justice Program). In reviewing the data, we are proud to see that our increase in staffing has positively influenced not only the number of cases receiving diversion, but also – even with a much larger population of defendants - the success rate of those being diverted has increased as well.

With a “deferred judgment,” the defendant enters a “temporary” guilty plea. In other words, the court and the DA’s office accept the defendant pleading guilty, but then the defendant agrees to complete conditions such as useful public service, probation, paying restitution to victims, or drug or alcohol treatment. These agreements typically last longer than diversion, up to two years, and can include closer supervision by the probation department and more rigorous conditions. If the defendant complies with the terms, their temporarily guilty plea is withdrawn and then the case is dismissed. Some cases may also be eligible to be sealed. If the defendant fails to comply, the conviction enters and the defendant can face further consequences as provided pursuant to their guilty plea. Deferred judgements have been offered by the DA office for many years and there is therefore a much bigger data set. Our deferred sentence data is currently available on our public dashboard.

Reviewing Diversion along side with Deferrals, it appears the two many have in inverse relationship – as diversion goes up, deferrals may be going down. While the programs naturally pull from some of the same categories of defendants, our goal is to increase the total number of cases going through the programs. It should be noted that overall case filings decreased since the COVID-19 pandemic and so while the total number of diverted and deferred cases is similar, the percentage of cases we are sending to those programs has increased. There is also already an immediate benefit to shifting many cases to diversion from deferrals as the program is significantly less resource intensive for multiple criminal justice system departments, including the DAs office, and less burdensome to defendants which we believe will result in positive outcomes for the community.

The success rate of our deferred judgements is only available through 2020, as the two-year time frame of the sentence necessitates we wait that duration to quantify who has completed the terms.

We are also tracking the recidivism rates of our diversion and deferral programs. Recidivism rate means the percentage of defendants who commit a new crime after having been in the program. We are proud that the recidivism rates in our deferred judgement cases have been consistently low over time. Recidivism data for our diversion program is not yet available as the program is too new to have a statistically significant window of possible recidivism to assess.

Using Data to Inform our Work

By Gordon McLaughlin · 2022-08-08

As we begin to dig in and cross reference data points to make our office more efficient and ensure swift resolution for victims and meaningful accountability for our defendants, one section that caught our attention was the gradual but consistent increase in time to felony resolution. The median number of days from case filing to case resolution has increased from around 100 days in 2017 to closer to 200 days in 2022.

Certainly, COVID and the resulting court shutdowns in 2020 and 2021 contributed to the issues. However, there has been a steady increase, which far predates the pandemic, from 2017 to present.

Also of note, according the data, the number of felony cases filed since 2017 has decreased:

In order to help alleviate this increase in case delay, we have embarked on significant discussion and analysis to get to the roots of the issue. We have conducted several internal work sessions where our office explored potential contributors to the problem and developed action steps to begin to address it. While many factors may be external to our office, we focused on possible internal contributors as that is where we can make the most direct and significant impact. We have also begun sharing this data with external stakeholders such as the Public Defender's Office, the private defense bar, and our local judges so they are aware of the trends and can look into their own practices too. We will continue to share the data and discuss process improvements with other members of the criminal justice system.

One contributing factor for case delay may be the timeliness of dismissal. We identified a similar trend where the timeliness to dismissal has decreased steadily since 2018. Identifying cases which are not appropriate for prosecution - for instance, because they cannot be proven beyond a reasonable doubt - at the earliest stage of the case is in the best interests of the victim, defendants, and the community.

Along with our partner judicial districts and PPI, we have begun to work on ways to track reasons for dismissal so we can get to the bottom of why cases are being dismissed as a first step in reducing unnecessary delay. In the meantime, we have presented this data to our attorneys and discussed strategies for recognizing problematic cases earlier in the process.

Another factor which we hope can mitigate unnecessary delay is to work to reduce the number of hearings held per case. While we have already managed to reduce this metric since 2021, our aim is to make further progress. Ultimately, case continuances are decided by the presiding judge, not our office, and they are often requested by defense. While some continuances are important to a fair justice process - an accused defendant needs time to prepare their case - by tracking the number of continuances, the requesting party, and the reasons behind them, we can more effectively lobby judges for speedier resolutions when appropriate. We aim to work in collaboration with the State Judicial Branch or on our own to create clearer tracking of continuance reasons.

We have also worked on an Expedited Pilot Program where cases involving in-custody defendants are docketed sooner than defendants awaiting resolution out-of-custody. Reducing delay in resolution time for those experiencing pre-trial detention will improving timeliness for defendant most impacted by delay.

As we continue to work through the new indicators, contextualize them, analyze pros and cons of different action steps, and dig deeper into the data, we have also begun to discuss a multitude of other internal policy and procedure changes. Possible steps that we will be  exploring include:

  • Enhancing our felony screening process and misdemeanor charge review to ensure appropriate charges at the outset of a case,
  • Onboarding more law enforcement agencies to our automated LEDES discovery system to improve our timeliness of discovery,
  • Creating more rigorous filing standards for law enforcement case completion,
  • Leveraging the use of deferred judgment and diversionary resolutions to resolve cases,
  • Increasing the use Preliminary Hearings or Grand Juries to advance cases in the process,
  • Improving communication timeliness and proactive outreach to opposing parties,
  • Assessing appropriateness of plea disposition offers to incentivize just resolutions, and
  • Reviewing our plea paperwork process and ability to resolve cases at each appearance.

Why does it matter?

The longer a case lasts, the more hardship it can cause for victims and defendants and it can create a backlog of cases which burdens the criminal justice system and wastes resources. Some may know the old adage "justice delayed is justice denied." That is an outcome every actor in the criminal justice system has a stake in avoiding.

Next Steps:

We will be examining these cases with a goal of reducing case length. We plan to review what factors may be contributing to delays in case resolution, including:

  • Factors within our control: number of continuances requested by our office, timeliness of offers and other correspondence, training of our staff, staffing levels.  
  • Factors out of our control: the number of continuances requested by the defense or the court, delay in having jury trials due to COVID, processing of drug testing, outstanding warrants of a defendant who is no longer appearing for court.
  • Review indicators that cases have become increasingly complex (increased complexity of criminal networks and digital evidence, more evidence including the exponential growth in body worn cameras).

 Sometimes with more data comes more questions, but the ultimate goal is to create data points to hold ourselves accountable to the community, and to be able to objectively review our overall performance. Since, for the first time, we have begun to collect, analyze, and publish this data, we (and you) can watch how the timeliness to disposition changes over time and our service to the community improves.

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