diversion

diversion, any of a variety of programs that implement strategies seeking to avoid the formal processing of an offender by the criminal justice system. Although those strategies, referred to collectively as diversion, take many forms, a typical diversion program results in a person who has been accused of a crime being directed into a treatment or care program as an alternative to criminal prosecution and imprisonment.

Diversion is possibly as old as the justice system itself. Police officers and court officials have always exercised their discretion to prevent the formal processing of offenders. One critical area for the use of diversion is nonviolent drug offenses. Because of the large number of drug offenders who are taken into the criminal justice system, jurisdictions around the world have implemented drug courts as a form of diversion. Drug courts provide nonviolent substance-abusing adults with the sanctions and services necessary to change their behaviour and avoid long-term incarceration. Research indicates that such treatment can reduce substance abuse, criminal behaviour, and recidivism.

Forms of diversion

There are two types of diversion: informal and formal. Informal diversion occurs when an official in the justice system decides, by using the appropriate discretion, that a case would be better kept out of the justice system. Such decisions occur every day. Police may consider diverting a suspect when the offense is minor (e.g., a traffic violation) and the suspect is calm and deferential. In more-formal situations, there is typically a program that the accused must complete as a condition of diversion. The offender is offered some form of treatment or voluntary sanction that, once completed, justifies the closing of the original case. For example, an offender who commits an act of domestic violence may be sent to an anger-management program. If the offender successfully completes the program, the case will be dropped or closed in an unofficial capacity.

Diversion occurs at different stages of the system. The most-common diversion decision occurs when a police officer decides not to cite or arrest a suspect, even when there is considerable evidence that a crime has been committed. If the officer does make an arrest, a different form of diversion may be used. Arrest gives the criminal justice system the ability to force the accused into a social-service program. That is done with the belief that personal problems such as substance abuse or uncontrollable anger may cause criminal behaviour and that treatment of those factors will prevent a reoccurrence of the crime. Therefore, authorities will often forgo prosecution if a defendant enrolls in a treatment program, especially if the defendant is a first-time offender.

Jail-diversion programs typically have a very simple aim: to allow the offender to avoid confinement while awaiting trial. The benefits of avoiding confinement are considerable. A pretrial jail term, even if only a few weeks long, can mean loss of a job and disruption of family life and other social ties. Being locked up also makes it harder for the defendant to assist in the preparation of his or her defense.

Jail diversion is an option frequently exercised by the arresting officer. In the case of a minor offense, a summons can be given, indicating a date and time for the accused to face the charges in court. A summons operates much like a traffic ticket. The accused is technically arrested but is free to go after agreeing to a court date. Because of fears that a summons may underplay the seriousness of a criminal accusation, its use is restricted to only the least-serious misdemeanors. Another jail-diversion approach, release on recognizance (ROR), occurs after the suspect has been taken to the station house and booked. Under ROR, the accused promises to appear in court at a specified date and time in exchange for release from custody.

Diversion can also occur after formal admittance to the criminal justice system, even after conviction. Once convicted the offender faces the bench for sentencing. For most felonies, the judge imposes a term of incarceration, but many offenders will not serve the full term. Instead, they will likely be considered for a form of diversion, either probation or, in the case of nonviolent crimes, restitution or community service. Restitution requires the offender to make reparation for the harm resulting from a criminal offense. Restitution is used most often for economic offenses, such as theft or property damage. Community service requires the offender to work for a community agency. It is unpaid service to the public, which symbolically atones for the harm caused by the crime. Both restitution and community service provide victims and the community with compensation, and they provide alternatives for judges that are somewhat less punitive and far less expensive than jail or prison time.

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Goals and benefits

For the offender, the main goal of diversion is rehabilitation. Diversion programs provide offenders with essential services that can address the underlying causes of criminal behaviour, such as alcohol and drug abuse. It is hoped that diversion will allow offenders to establish a normal lifestyle, without the burden of a criminal record. Diversion may also be less costly for the offender. An offender who remains in the community can retain his or her job, which is especially important if wages are needed to pay for counseling, restitution, fines, or court costs. Diversion can also be less costly than other criminal justice processing. In many cases treatment or counseling is less expensive than prosecution and incarceration. The most obvious benefit of diversion programs is that they avoid the expense and harshness of the full operation of the criminal law.

Criticisms of diversion programs

Successful diversion programs save tax dollars, improve life circumstances for offenders, satisfy victims, and provide services to the community. Yet those programs are not without controversy. Diversion programs are criticized as being unduly lenient, because they allow offenders to be sanctioned in an unconventional manner. Some may feel that if an offender is not incarcerated, then the punishment is not severe enough, and justice has not been served.

Another criticism is that diversion appears to consider the needs of the offender over those of the victims. That problem can be solved by involving victims in the diversion process. Such involvement may allow victims to better understand the reasons behind crime, which may help them psychologically adjust to their victimization. Those who commit crimes may also benefit from meeting with victims, as they may better appreciate the harm their illegal behaviour causes.

Diversion is also criticized because not all programs are successful. In some cases programs are poorly designed or implemented. In other cases the offender fails to abide by the requirements of diversion or is engaged in behaviour that is uncorrectable. When diversion programs fail, individuals suffer, tax dollars are wasted, victimization is increased, and the system loses credibility, and in some of these cases diversion can actually be more expensive than normal processing, because offenders later have to be reprocessed and possibly incarcerated.

The controversies surrounding diversion programs often are presented as though diversion reflects some sort of unusual undercutting of the penal system. In fact, at every stage of justice processing, from arrest to imprisonment, policy makers provide alternative routes that allow the offender and the system to avoid the full consequences of the penal law. The criticisms of prison-diversion programs may have merit, but to the degree that they are based on a claim that every offender should face the full impact of the penal law, they are contrary to history and practice.