Everything You Need to Know About Pretrial Diversion Programs
By Ed Chernoff | March 26, 2018
Pretrial Intervention is a contract with the prosecutor that feels a whole lot like probation. That’s the bad part. The good part is that the prosecutor’s responsibility is to dismiss the criminal action so long as the accused fulfills the probation like conditions for which he is responsible. There is no formal plea necessary.
And I do mean dismissal. The prosecutor fills out and signs a Motion to Dismiss and hands it to the Judge to sign. Said form is then handed to the clerk, who then files it for public disclosure. This is the holy grail of the criminal process. Nearly every single one of my clients hopes for this exact result. The only difference between a dismissal through pretrial diversion and a dismissal in any other circumstance is the timing. A dismissal through a pretrial diversion contract typically doesn’t happen until a year or more passes after the signing of the contract.
Why Is Pretrial Diversion So Popular Nowadays?
So, what’s not to love? Well, we will get to that. Pretrial Intervention is largely possible because the Texas Code of Criminal Procedure Art. 76.011 gives the Community Supervision and Corrections Department in each County the authority to administer such a program. What this means is that the county probation department can task their probation officers to meet with the accused monthly and make sure that all conditions of the contract are complied with, including drug tests, reporting, community service, etc. Hence, the probation feel of the program.
Pretrial Intervention also works because the Judges are willing to go along with it. The Judge doesn’t have to wait a year before a case in her court is resolved. In fact, several Judges in Harris County have refused such contracts in the past on what was espoused to be legal reasons, but upon closer inspection seemed a whole lot more like personal preferences.
Pretrial diversion programs have become the program du jour of several District Attorneys’ offices in Texas. The reasons are varied. Some counties are having particular problems with jail space. Some elected District Attorneys believe that first timers for certain crimes deserve a second chance. Some think that small amount drug possession should be treated differently than other crimes, especially if the possessor has a drug addiction.
Who Is Eligible for Pretrial Diversion?
Years ago, it took an act of Congress to get an assistant DA to offer a pretrial diversion. It often required a package of letters from the local clergy and a meeting with the elected District Attorney to get anyone to notice the request. Now some District Attorneys, like in Harris County, offer standard programs for crimes such as Possession of Marijuana, Shoplifting, Cocaine Possession and DWI. Some programs are easier than others. Harris County has a “reintegration court” where some first time drug possessors are instantly transferred after their first setting.
A person with a DWI may be considered for Pretrial Diversion. However, the counties that have these programs require jumping through some substantial hoops in order to get admitted. The bar keeps changing on this, but examples of facts that keep an accused out of this program is high breath or blood test, accidents or prior record. Even more hoops must be jumped through to stay in these DWI programs. The most onerous is that the interlock device must be installed and maintained through a substantial part of the contract term. Anybody who has ever had to blow into a tube every fifteen minutes to keep their car engine running knows what I am talking about when I say onerous. (I plan another blog post to discuss who actually benefits from these interlock devices.)
Marijuana and shoplifting pretrial diversion programs are less troublesome. Most of these contracts are short in duration and the conditions are limited to taking a class or two that are supposed to teach the offending person how bad it is to do such a crime. Drug pretrial programs are a little more extensive and are likely to involve some outpatient treatment and monthly drug testing.
In theory, any crime and anybody is eligible for pretrial diversion. For instance, Assault is one crime that I have often observed resolved by contract. Whether to offer pretrial diversion in any particular instance is up to the discretion of the chief DA of the court where the case is assigned. This sometimes takes a substantial amount of politicking and persuasion, which is another reason why it is important to make the right choice when hiring an attorney. In the vast majority of cases where I make a request for pretrial diversion, I prepare a packet of information along with my personal pitch for the contract.
So, Why Is It a Bad Idea to Ask for Pretrial Diversion?
So why not just always ask for pretrial diversion? First, it’s a really bad idea to ask for diversion if you are substantially sure that it will not be granted. To do so is to provide the DA with the entirety of your defense, including all of your mitigating evidence, when the case may wind up in trial.
The second reason? Pretrial Diversion is for guilty people. Most of the time, a Chief prosecutor will not entertain a pretrial diversion unless the accused admits in writing to committing the crime and requests forgiveness. This seems a reasonable demand, since such a confession suggests that the person has a certain moral compass and is less likely to commit another crime. However, what if the person didn’t actually commit the crime in the first place?
I have never once asked a client to admit to something he didn’t do. This is true for pleas of guilty and it is true for letters to prosecutors in a package for pretrial diversion. The criminal justice system would be bastardized if prosecutors finagled false confessions simply to provide justification for dismissals. If the accused didn’t do it, the prosecutor should dismiss. If not, that’s why we have jury trials.
Another reason not to ask for pretrial diversion? There might be an easier option than a contract. In cases where it appears pretrial diversion is likely, I prefer to try to negotiate a lesser option. For instance, I had a case two weeks ago where my client was charged with Possession of Marijuana at his school dorm room. I produced some spectacular school transcripts, which showed my client’s unusual dedication to his studies and the prosecutor agreed to dismiss with proof of 15 hours of community service. This was completed in a week’s time and the case was dismissed out of court. My client made one court appearance. We are now working on his expunction. I call this “super duper top secret probation”.