What is Pre-Prosecution Diversion

Pre-Prosecution diversion programs are designed to identify defendants who are not likely to commit additional offenses, and to allow them to avoid being formally charged with a criminal offense. A diversion program allows a county to save money on prosecution and probation for minor offenses, while allowing a person who is not likely to reoffend to avoid having a formal criminal record.

Pre-prosecution diversion programs may also be known as pretrial intervention, deferred prosecution, accelerated rehabilitative disposition (ARD), or accelerated rehabilitation (AR).

Who Can Qualify for Pre-Prosecution Diversion

The terms and availability of pre-prosecution diversion vary significantly between states, and even between prosecutor's offices within a state. Although some states have statutes that define pretrial diversion programs and their terms, other states may leave pretrial diversion largely or entirely to the discretion of a prosecutor's office.

Pretrial diversion is rarely available in federal prosecutions. To qualify for federal diversion a defendant must be represented by a lawyer, so a defendant interested in the possibility should discuss the eligibility requirements with their lawyer.

When available, eligibility may be limited based upon a number of factors, including:

  • The defendant's age - Some diversion programs are available only to younger offenders;
  • The defendant's criminal history - Diversion programs are often limited to first offenders who have not previously participated in a diversion program;
  • The nature of the offense - Diversion programs are normally available only for minor offenses, such as shoplifting or simple possession of a controlled substance for personal use, and are rarely available for violent offenses; and
  • The defendant's willingness to participate - A defendant must be willing to enter into and complete a pretrial diversion program.

Additional requirements may include proof of U.S. citizenship or of lawful presence within the United States, and a voluntary admission of guilt. When an admission of guilt is required, the admission may be structured so that it may be used as a confession in future criminal proceedings if the defendant does not successfully complete the diversion program.

In a small number of jurisdictions, a first offenders who has committed a minor crime may be automatically eligible for a diversion program. More commonly, a prosecutor must approve a defendant's entry into the diversion program.

What Must a Defendant Do to Complete Pre-Prosecution Diversion

When a defendant enters into a pre-prosecution diversion program, the defendant is placed under a period of supervision, often six months to a year, during which the defendant must refrain from criminal activity. In some jurisdictions, particularly those that allow diversion for felony offenses, the diversion program may be of longer duration, such as lasting for up to two years.

Additional requirements that may be imposed include:

  • Payment of restitution to the victim;
  • Community service;
  • Abstaining from any use of illicit drugs;
  • Abstaining from excessive consumption of alcohol or, especially for minors, from any consumption of alcohol;
  • Participation in a counseling or treatment program;
  • Reporting to a program officer on a regular basis;
  • Maintaining employment or attending school;
  • Payment of supervision fees.

Some defendants will be required to submit to random drug testing. Some programs may require that the defendant not possess a firearm during the diversion period.

Particularly in jurisdictions in which a defendant must admit guilt to qualify for the program, the defendant may be required to be represented by a lawyer in order to be accepted into the program. When the defendant is represented, it is much more likely that a confession made within the contest of a diversion program will be successfully admitted in later proceedings as proof of guilt.

What Happens if You Violate Pre-Prosecution Diversion

If you violate the terms of your pre-prosecution diversion program, the prosecutor may file the criminal charge with the court, commencing a formal prosecution. If one of the conditions of entry into the diversion program was admission of guilt, that admission may be submitted by the prosecution as evidence of guilt if the defendant contests the charge.

It is unlikely that a defendant will be able to convince a court to exclude from evidence an admission of guilt made in association with entry into a diversion program. A defendant who makes such an admission should thus assume that violation of the terms of the diversion program will result in conviction.

Should You Participate in Pretrial Diversion

If you are eligible for a pretrial diversion program, and do not believe that you have a viable defense to the criminal charge, the program will normally be your best and least expensive option for resolving a criminal case, while also allowing you to avoid a criminal conviction.

Where a pre-prosecution diversion program does not require an admission of guilt, the defendant has little downside for participating in the program. However, where an admission of guilt is required, the defendant effectively gives up the ability to defend against the charges if the defendant does not successfully complete diversion. A defendant who maintains innocence may not want to admit guilt to a crime that he or she did not commit or, or to take the chance of being charged after a violation of the diversion program and then convicted of a crime based upon a false admission of guilt.

Pre-Prosecution Diversion vs. Deferred Dispositions

Some jurisdictions offer deferred dispositions to defendants who are deemed to be at low risk of re-offending. A deferred disposition is similar to pre-prosecution diversion, in that the successful completion of the deferral will allow the defendant to obtain a dismissal of the criminal charge with no record of a criminal conviction.

The biggest difference between pre-prosecution diversion programs and a deferred disposition is that a defendant must be formally charged with a crime in order to qualify for a deferred disposition. The defendant will thus have a court record of the criminal charge, which may also appear in the defendant's criminal history records, and that record may be available to the public even following a dismissal.

With pre-prosecution diversion no criminal case is filed with the court, so if the defendant successfully completes the program there is no public record of a formal criminal charge or disposition. The prosecutor's office will normally maintain a non-public record of participation.

Deferred dispositions may occur at several points during the prosecution of a case:

  • After a charge is filed but before trial or the entry of a plea: if the defendant successfully completes the deferral program, the charge is dismissed;
  • After the entry of a guilty plea, but before sentencing: if the defendant successfully completes the deferral, no conviction is entered on the case and the charge is dismissed; or
  • As part of the defendant's sentence: if the defendant successfully completes the deferred sentence, the defendant's conviction is set aside and the charge is dismissed.

If a defendant violates the terms of a deferred disposition, the prosecution resumes from the point in the proceedings at which the defendant was granted a deferral.

Copyright © 2017 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.