Diversion is a method of dealing with criminal conduct without resorting to formal court proceedings. It is an agreement between the police, prosecution or magistrate and the accused person whereby they agree that the charge may be dismissed if certain conditions are met. Typically, these conditions could include payment of compensation to victims, completion of community service, attendance at programs aimed at addressing underlying issues such as drug abuse or anger management and/or avoidance of further offending. According to research conducted by Monash University in 2017-18 on diversion outcomes in Victoria, more than two thirds (67%) were successful in meeting their obligations under the Diversion Agreement.
A Deeper Dive Into A Diversion Program
Diversion programs as an alternative to traditional prosecution have been developed and implemented in various forms since the 1960s. The creation of these programs is rooted in several factors, one of the main one being the overcrowding of prisons and jails. As the number of individuals being incarcerated increased, many jurisdictions began to experience overcrowded prisons and jails, leading to a need for a more efficient use of resources. Diversion programs were seen as a way to reduce the number of individuals being incarcerated, while still holding them accountable for their actions.
Another important factor in the creation of diversion programs is the recognition that traditional punishment, such as incarceration, may not effectively address the underlying issues that lead to criminal behavior. This led to the development of programs that focus on addressing those issues, such as addiction, mental health, or trauma, with the goal of reducing recidivism and improving public safety.
Additionally, the high cost of traditional prosecution and incarceration has also played a role in the creation of diversion programs. These programs can be less expensive than traditional prosecution, as they do not require the same level of court and prison resources.
Furthermore, the growing awareness of the disproportionate impact of traditional punishment on marginalized communities also played a role in the creation of diversion programs. These programs aim to provide alternatives for marginalized communities which may be more effective in addressing the root causes of criminal behavior.
In summary, the creation of diversion programs was driven by the need to reduce overcrowding in prisons and jails, address underlying issues that lead to criminal behavior, save money, and provide alternatives for marginalized communities.
Eligibility Requirements for Diversion Programs
Eligibility requirements for diversion programs can vary depending on the specific program and the jurisdiction in which it is offered. Some common eligibility criteria that may be considered include:
- The individual must be charged with a non-violent offense
- The individual must have no prior criminal record or only a minor criminal record
- The individual must be willing to admit responsibility for the crime
- The individual must be willing to participate in counseling, treatment, or other programs as part of the diversion program
- The individual must agree to comply with any conditions set by the program, such as regular check-ins with a probation officer
- The individual must agree to waive their right to a trial
- The individual must be amenable to the program as per the discretion of the prosecutor, judge or defense attorney.
It is important to note that these are some common eligibility criteria that may be considered, but each program may have different requirements. It’s best to check with the specific program you are interested in or consult with legal counsel to understand the eligibility criteria.
Benefits of Criminal Law Diversion Programs
Criminal law diversion programs are alternatives to traditional prosecution that can offer a number of benefits. Some of these benefits include:
- Reducing prison and jail populations: Diversion programs allow individuals to avoid incarceration and instead receive treatment, counseling, or other services that address the underlying issues that led to their criminal behavior.
- Improving public safety: By addressing the root causes of criminal behavior, diversion programs can reduce recidivism and improve public safety.
- Saving money: Diversion programs can be less expensive than traditional prosecution, as they do not require the same level of court and prison resources.
- Helping individuals get back on track: Diversion programs can provide individuals with the tools and resources they need to overcome addiction, mental health issues, or other problems that may have contributed to their criminal behavior.
- Second chance for first-time offenders: Diversion programs can give first-time offenders a chance to avoid a criminal record and the potential long-term consequences of a conviction.
Types of Diversion Programs
There are several different types of diversion programs, each with their own specific focus and requirements. Some of the most common types include:
- Pretrial diversion: This type of program allows individuals who have been charged with a crime to avoid prosecution by completing certain conditions, such as community service, treatment, or counseling.
- Drug court: These programs are specifically designed for individuals who have been charged with drug-related offenses. Participants in drug court must comply with strict drug testing and treatment requirements in order to avoid prosecution.
- Mental health court: These programs are designed for individuals with mental health issues who have been charged with a crime. Participants receive treatment and support for their mental health issues as an alternative to prosecution.
- Veterans court: These programs are designed for veterans who have been charged with a crime. Participants receive treatment, counseling and support for issues related to their service and as an alternative to prosecution.
- Youth diversion: These programs are designed for young people who have been charged with a crime. Participants receive counseling, education and support services as an alternative to prosecution.
- Restorative justice programs: These programs are designed to repair the harm caused by criminal activity through community service, apologies, and mediation.
- Problem-solving courts: These programs focus on addressing the underlying issues that lead to criminal behavior, such as addiction or homelessness, with the goal of reducing recidivism and improving public safety.
Common Criticisms of the Use of Diversions
Diversion programs, while generally considered a positive alternative to traditional prosecution, have also faced criticism in some cases. Some of the most common criticisms include:
- Lack of accountability: Some critics argue that diversion programs let individuals who have committed crimes off the hook without holding them accountable for their actions.
- Inadequate supervision: Some critics argue that diversion programs may not provide enough supervision or oversight to ensure that participants are complying with program requirements.
- Inequities: Critics argue that diversion programs may disproportionately benefit individuals with more resources, such as access to private attorneys, while leaving low-income individuals without such resources more likely to be incarcerated.
- Ineffective treatment: Some critics argue that diversion programs may not provide the level of treatment or support needed to effectively address underlying issues such as addiction, mental health, or trauma.
- Lack of standardization: There is a lack of standardization among diversion programs, making it difficult to measure their effectiveness or ensure that they are being implemented fairly across different jurisdictions.
- Limited access: Not everyone has access to diversion programs, particularly in rural areas or areas with limited resources.
It’s worth noting that many of these criticisms are based on specific cases or studies and not all diversion programs may face the same issues. Also, many of these criticisms can be addressed through better implementation, monitoring, and evaluation of the programs.
Alternatives to Traditional Prosecution and Punishment
In addition to criminal law diversion programs, there are other alternatives to traditional prosecution and punishment that have been proposed or implemented. Some examples include:
- Community service: Instead of being sentenced to prison or jail, individuals who have committed a crime may be ordered to perform a certain number of hours of community service. This can include tasks such as cleaning up public spaces, working in a soup kitchen, or assisting with community projects.
- Restorative justice: This approach focuses on repairing the harm caused by criminal activity through community service, apologies, and mediation. It aims to bring together the offender, the victim, and the community to work towards a resolution that addresses the needs of all parties involved.
- Fines and fees: Instead of being incarcerated, an individual may be ordered to pay a fine or fee as a punishment for a crime.
- Probation and parole: Instead of being incarcerated, an individual may be released on probation or parole, which involves being supervised by a probation or parole officer and required to follow certain conditions, such as reporting regularly, staying employed, and not committing any new crimes.
- Sentencing circles: This approach involves a community-based process in which a panel of community members, along with the offender and victim, work together to determine an appropriate sentence.
- Drug treatment courts: These courts focus on providing treatment and support for individuals with drug addiction who have been charged with drug-related crimes.
- Mediation and arbitration: Instead of going to trial, some disputes may be resolved through mediation or arbitration, which involve a neutral third party helping the parties to come to an agreement.
- Warning and cautioning: An informal and non-punitive approach where the police or the prosecutors would give a warning to the offender instead of prosecution, especially for minor offenses, which is common in some countries.
These alternatives can be used alone or in combination with each other. They are designed to address the underlying issues that lead to criminal behavior, reduce recidivism, improve public safety, and save money.