Diversion Programming

1. Diversion Programming diversion Presentation for the New Orleans Racial Justice Task Force By Spurgeon Kennedy February 11, 2011 New Orleans Louisiana Foundational Standards Core Elements Developing/Implementing A Diversion Program Outcome and Performance Measures

2. Session Goals • Define diversion as it is currently practiced. • Outline the statutory and legislative supports of diversion • Examine diversion’s benefits to local criminal justice systems • Discuss diversion’s core elements and fundamental practices

3. Diversion

4. 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)

5. What This Includes

6. What It Does Not Include

7. 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

8. 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

9. 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

10. 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 Initiatives • Identifies gaps in community-based services that limit options for interventions • Helps successful defendants avoid collateral consequences of convictions that inhibit reaching economic and education goals

11. 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

12. 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

13. Diversion Today (2009 Survey) • Most diversion programs are county-based • Median annual budgets are about $160,000 • Median staff size is about six • Tend 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

14. 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.

15. FoundationalStandards

16. 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

17. 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

18. Part II: Diversion/Intervention Option • 2.1 The opportunity to apply/when in process • 2.2 Consult with counsel • 2.3 Voluntary and with written consent • 2.4 Should not preclude pursuing other options

19. Part III: Eligibility • 3.1 Broad eligibility criteria • 3.2 No denial of access for discriminatory reasons • 3.3 Establishment of formal eligibility guidelines • 3.4 Program has the obligation to be sure guidelines are consistently applied • 3.5 No denial based on ability to pay or perform

20. Part V: Intervention Services • 5.1 Comprehensive assessment • 5.2 Individualized and realistic plans • 5.3 Least restrictive means • 5.4 Variety of approaches • 5.5 Develop treatment/community resources • 5.6 Plans can be revised when necessary

21. CoreElements

22. 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

23. 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 

24. 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

25. 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 

26. 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

27. Defendant Access to Counsel • Standards 2.2 and 4.1 • Participation 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

28. 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

29. 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

30. Diversion Eligibility Criteria • Standards 2.1 and 3.1 • Broad, equitable and objective, applied early and consistently at multiple points of case processing

31. 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

32. 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

33. 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

34. 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

35. 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

36. END QUESTIONS?