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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.