Pretrial Diversion

Abstract

Concern about the harm that involvement in the criminal justice system can cause for youth and socially marginalized individuals prompted alternatives to traditional criminal processing in the mid-1960s. Pretrial diversion initially was an initiative focused around rehabilitating youths and first-time nonviolent defendants charged with a criminal offense. The defendant could voluntarily enter a diversion program to be helped, and at the same time, avoid the stigmatizing effects of a criminal conviction. Diversion, in most cases, takes place after the filing of a formal charge and before the adjudication of guilt, but the defendant remains under the authority of the criminal justice system. One important exception to this is police-led diversion whereby police officers typically divert youths away from juvenile justice system oversight. Pretrial diversion in practice is also known as deferred adjudication, deferred prosecution, police-led diversion or pre-prosecution intervention. Pretrial diversion is frequently and incorrectly confused with pretrial detention or pretrial release (See the separate Oxford Bibliographies in Criminology article “Bail and Pretrial Detention” for more information about pretrial detention). In pretrial release, the defendant is released from detention to assist in his or her own defense in a criminal case that is being processed through traditional channels. In contrast, the prosecutor in a diversion case agrees to delay the prosecution of the charge while the defendant undergoes counseling in a community-based setting or pays back the victim for losses incurred. With successful completion of diversion, the charge is dismissed, but the meaning of dismissal varies. Some states (e.g., Kansas) will permanently dismiss charges, while prosecutors in other states (e.g., Florida, Texas) exercise the option to re-file the charge again if a new crime is committed within a specified number of years after diversion is completed. The primary goals of the original diversion programs were the defendant’s likelihood of rehabilitation, increased employment prospects, and lowered recidivism. Rehabilitation was also a central tenet of the juvenile justice system (See the separate Oxford Bibliographies in Criminology article “Juvenile Justice System”) at this same time. This goal required the defendant in some jurisdictions to admit responsibility by entering a guilty plea. The judge decided whether this plea was made voluntarily and intelligently. In other jurisdictions, a guilty plea is not required and the prosecutor delays the case or the judge “continues” the case until diversion is completed. This bibliography presents the most important criminological works and law reviews that discuss history of diversion, legal issues, criticisms, referral methods, youth diversion programs, and evaluations of diversion programs for adults.