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Analysis of State Pretrial Diversion Statutes

NCJ Number
Columbia Journal of Law and Social Problems Volume: 15 Issue: 1 Dated: (1979) Pages: 1-32
P Zablotsky
Date Published
32 pages
State pretrial diversion statutes are discussed with regard to appropriate roles for the prosecutor and the courts in decisionmaking, criteria for defendant participation, and defendant termination from programs.
Pretrial diversion (PTD) is a formalized procedure whereby eligible criminal defendants have their prosecution suspended for a specified period. During this period, a defendant participates in a community-based rehabilitation program which may include counseling, education, or medical treatment. If the defendant completes the program successfully, charges are dismissed. Should the defendant fail to complete the program, the case is returned to the normal channels of the criminal justice system. Thus far, Arkansas, Colorado, Connecticut, Florida, Massachusetts, Tennessee, and Washington have enacted PTD statutes. All State statutes follow a similar pattern but differ significantly in their handling of the appropriate roles of the prosecutor and the court, criteria for PTD participation, and procedure for terminating PTD involvement. As the number of PTD statutes increases, a solid conceptual framework for diversion programs must be developed. In considering the various approaches articulated in existing State statutes, it is suggested herein that PTD should be classified as a judicial function. PTD statutes should empower the courts to make the ultimate decision concerning a defendant's participation in diversion. In addition, such legislation should facilitate the ability of the court to guarantee the due process rights of the divertee, including the process surrounding involuntary termination of the divertee's participation. Hearings should be required for all such terminations. Finally, PTD statutes should remain free of excessive conditions on eligibility. Footnotes are included. (Author abstract modified)