PRETRIAL DIVERSION - THE THREAT OF EXPANDING SOCIAL CONTROL

• NCJ Number: 52055
• Journal: Harvard Civil Rights-Civil Liberties Law Review Volume: 10 Issue: 1 Dated: (WINTER 1975) Pages: 180-214
• Author(s): J S GORELICK
• Date Published: 1975
• Length: 25 pages
• Corporate Author: Harvard University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THIS ARTICLE DESCRIBES THE OPERATION OF AND THEORETICAL RATIONALE FOR DIVERSION PROGRAMS AND THEN FOCUSES ON RESULTS OF ACTUAL PROGRAMS TO BE USED AS A BASIS FOR RECONSIDERING THE THEORY OF DIVERSION.

Abstract

DIVERSION PROGRAMS DELAY THE OPERATION OF CRIMINAL PROCESSING; IF CONDITIONS OF THE DIVERSION PROGRAM ARE MET, CHARGES USUALLY ARE DISMISSED, IF THEY ARE NOT, THE CASE IS RETURNED FOR FURTHER PROCESSING. DURING DIVERSION THE ACCUSED REMAINS UNDER THE AUTHORITY OF THE CRIMINAL JUSTICE SYSTEM. MOST PROGRAMS EXCLUDE INDIVIDUALS CHARGED WITH VIOLENT CRIMES, ACCUSED FELONS, AND GROSS MISDEMEANANTS AND SEEK PARTICIPANTS WHO ARE LIKELY TO BENEFIT FROM AVAILABLE SERVICES. DIVERSION PROGRAMS ATTEMPT TO REHABILITATE BY PROVIDING A COMMUNITY ALTERNATIVE TO INCARCERATION, BY AVOIDING THE NEGATIVE SOCIAL AND ECONOMIC CONSEQUENCES OF THE 'CRIMINAL' LABEL, AND BY TRAINING INDIVIDUALS TO FUNCTION PRODUCTIVELY IN SOCIETY. A RECENT EVALUATION OF DIVERSION PROGRAMS PROVIDES REASON TO DOUBT EARLY CLAIMS THAT DIVERTED INDIVIDUALS ARE LESS LIKELY TO COMMIT ANOTHER CRIME THAN THOSE WHO RECEIVE STANDARD PROCESSING AND THAT DIVERSION PROGRAMS ARE MORE ECONOMICAL THAN STANDARD PROCESSING. RECENT STUDIES SUGGEST ALSO THAT DIVERSION MAY BROADEN GOVERNMENT CONTROL OVER SOCIETY. ALTHOUGH MANY COMMENTATORS AS A RESULT OF THESE FINDINGS ARE URGING REFORM OF DIVERSION PROGRAMS, THE ARTICLE STRESSES THAT THE PROBLEMS LIE IN THE BASIC THEORY OF DIVERSION ITSELF. DIFFICULTIES INHERENT IN ATTEMPTING TO INCORPORATE THE CONCEPTS OF CULPABILITY, AND PROPORTIONALITY BETWEEN CRIME AND PUNISHMENT, AND DUE PROCESS INTO THE DIVERSION THEORY, AND DIVERSION METHODS ARE MENTIONED ALONG WITH THE POSSIBLE EXPANSION OF SOCIAL CONTROL THAT COULD ACCOMPANY THE USE OF DIVERSION. STATE INTERVENTION CANNOT BE INVOKED TO PUNISH AND REHABILITATE AT THE SAME TIME, AND THE EXTENT OF STATE INTERVENTION CANNOT BE PROPORTIONAL TO BOTH THE INDIVIDUAL'S REHABILITATIVE NEEDS AND CULPABILITY. AN ALTERNATIVE TO DECREASING OVERCRIMINALIZATION IS TO DECRIMINALIZE BEHAVIOR WHICH PRESENTLY RECEIVES NO PUNISHMENT AND TO REDUCE PERIODS OF INCARCERATION FOR CRIMES AGAINST PROPERTY. (KM)