When Pre-Trial Diversion Programs Disappear: The Need to Protect Diverted Defendants’ Due Process and Liberty Rights

Abstract

Thousands of diversion programs across the country cut costs, reduce prison overcrowding, control court dockets, reduce recidivism, and avoid costly inpatient care. Diversion is successful: the majority of participants successfully complete mandated treatment. Diversion also helps uphold fundamental constitutional liberty protections. Courts protect defendants’ liberty through a strong presumption of pre-trial release, with or without conditions. These conditions frequently include participation in diversion programs. Courts also protect participants’ liberty interests by recognizing their right to continued participation in diversion programs.

Diversion focuses on defendants suffering from mental illness, substance abuse, or both. Federal and state diversion programs are discretionary. To determine eligibility, courts consider several factors including: expert evaluation; police reports discussing the defendant’s behavior; witness and victim statements; the offender’s criminal history; the offender’s behavior during the court proceeding; and statements made by the defendant’s family members. Once a defendant is deemed eligible, diversion programs allow first-time, nonviolent offenders, or those accused of misdemeanors, to participate. The court may offer the defendant probation and mandatory treatment rather than incarceration.

Funding comes from various sources, but when funding dries up, the programs are unable to succeed. Eliminating or reducing diversion programs forces participants back into the criminal justice system—the very result the programs were created to avoid. Program funds are not tied to success, and when funding dries up it becomes difficult—if not impossible—for the programs to function.

There exists a fundamental liberty right in America, and a strong presumption in favor of release pending trial. Diversion participants have a due process right to continued participation. Thus, it is crucial to protect these rights. The governing statute or court rule can protect participants in several ways. First, diversion programs should have four types of discharge: successful; neutral; unsuccessful; and voluntary withdrawal. Second, the government should be prohibited from issuing arrest warrants for individuals whose programs were shut down, so long as the individual has not engaged in any other violation; the state also must maintain lists of affected individuals and disseminate those lists to law enforcement and court staff to help prevent a participant’s arrest. Third, when a program is shutdown or lacks space, the participant should remain free and the court clerk should automatically schedule a new court date for all affected to determine whether transfer to other pre-trial programs is appropriate. Fourth, the legislature should provide consistent funding—including a provision for emergency funds. Fifth, the state must track, analyze, and publish data regarding the success of diversion programs. Sixth, the state must identify and create protocols for programs to replace services that fall away.

Keywords: criminal law, constitutional law, Fourteenth Amendment, Fifth Amendment, liberty right, due process, liberty, diversion programs, pre-trial diversion