Codifying diversion
Diversion is an “off-ramp” from the harms of the justice system, but in DC, there are only a few ways off the highway.
- 9 Minute Read
Diversion is a key “off-ramp” that individuals can access to avoid the negative consequences of arrest or conviction of a crime, and avoid years and years of incarceration and justice system control. But among the tens of thousands of people who are arrested and convicted of crimes in DC, prosecutors divert very few people charged with felonies. In DC, there are few diversion options that give discretion to the courts, allow a person to access a sentencing alternative rather than a prison term, or give someone an opportunity for their record to be “set aside” if they complete diversion. Other places, like Vermont and Colorado, have amended laws to allow more crimes to be eligible for diversion. DC should amend the criminal code, codify diversion for individuals facing charges for misdemeanors, and expand the new approach to felonies.
What you need to know
Diversion is an “offramp” on the highway to deeper justice system involvement.
A diversion program is a broad term used to describe any approach that provides people with an alternative to formal justice system processing by allowing them to exit the criminal justice system without an arrest or criminal conviction on their record. The benefits of diversion are that it costs less than incarceration and can have better public safety outcomes because the individuals avoid exposure to conditions in the criminal justice system that make it more likely they will engage in criminal behaviors.
Diversion can occur at different stages of the justice system process.
Leading organizations, such as the Vera Institute for Justice, the Prison Policy Initiative, and the Center for Effective Policy, do not agree on how to name and categorize different types of diversion.
The five general types of diversion referred to in the literature include:
Pre-police encounter diversion
As soon as 911 is called, a community-based organization—not the police —works with an individual to address the underlying challenge leading to a police encounter, such as homelessness, mental health challenges, or a substance use disorder. The process avoids an arrest.
Pre-arrest diversion
Pre-arrest diversion programs are police-led diversion programs that allow police officers to choose not to arrest people in certain situations. Under the Co-Responder Program, in Fairfax County, a police officer may not formally arrest someone but may instead take them to a treatment program or a hospital.
Pre-charge diversion
Pre-charge diversion programs are available before the trial begins, either before or after the prosecutor chooses to file charges. Under pre-file diversion, as in the Neighborhood Court in San Francisco, California, the charges against the defendant are never filed if the defendant completes the requirements. Under post-filing (sometimes known as deferred prosecution), the prosecutor has filed formal charges but diverts the individual before the defendant goes to trial, as in the case of the Cook County deferred prosecution program.
Post-charge and pre-conviction diversion
Some states give judges (and sometimes prosecutors) the discretion to divert people from the criminal justice system before they are formally convicted of a crime. There are problem-solving courts where a specially trained judge, prosecutor, and defense counsel focus on addressing mental health or treatment issues. A post-charge, pre-conviction diversion can include deferred adjudication, where a judge defers a defendant’s guilt until the defendant has a chance to complete certain requirements or programs, like in the Deferred Adjudication Community Supervision Program in Brazos County, Texas.
Post-conviction diversion
A defendant may be offered post-conviction diversion as an alternative to incarceration, such as probation, community service, or a restorative justice program. Because some post-conviction programs only allow defendants to avoid prison or jail, and the criminal charges remain on their record, the Prison Policy Initiative says, alternatives to incarceration in and of themselves are not a true diversion “exit ramp.”
The USAO-DC controls most diversion “off-ramps” – and they are almost exclusively offered to people convicted of crimes that do not carry long sentences.
The United States Attorney for the District of Columbia (USAO-DC) offers a post-charge deferred prosecution agreement at their discretion. After filing formal charges, prosecutors may offer to drop the charges in exchange for the defendant completing conditions, such as 32 hours of community service, adhering to curfews and stay-away orders, and making restitution to the victim. If the individual satisfies the DPA requirements, the charges will be dismissed. In 2023, 80 deferred prosecution agreements were offered. Prosecutors also offer a post-charge diversion deferred sentencing agreement: This is a six-month program in which an individual must plead guilty, perform 48 hours of community service, and comply with other conditions, such as a curfew, stay away order, and/or restitution to the victim. If the defendant satisfies the requirements of the agreement, the defendant will be allowed to withdraw their guilty plea, and the charges will be dismissed. Throughout 2023, prosecutors offered 505 deferred sentencing agreements. Nine out of ten of these agreements were offered in response to a nonviolent charge, including traffic offenses, property crimes, and misdemeanor offenses. Only 8 percent of the charges associated with these agreements were for “dangerous crimes,” such as felony weapons or felony drug offenses. Taken together with the offense restrictions standing in the way of a deferred sentencing agreement, the vast majority of diversions that were offered were to individuals who did not commit the types of felony offenses that are most associated with long prison sentences.
DC only has a few codified diversion options where the USAO does not control the “off-ramp.”
Outside of deferred sentencing agreements and deferred prosecution agreements, where the prosecution has discretion over whether someone can access these “off-ramps,” DC has very few diversion opportunities that are part of the law and not at the prosecution’s discretion. DC does, as a matter of law, offer probation for a person convicted of their first drug offense instead of incarceration. The Criminal Code Revision Commission recommended expanding that sentencing option to other low-level misdemeanors, similar to what Colorado law offers, but this change was not part of the code revision package endorsed by the Council of the District of Columbia. For young adults under age 25, the Youth Rehabilitation Act allows for sentencing alternatives for individuals convicted of most felony crimes, and for the young person to have the conviction “set aside” – meaning, the conviction is vacated and removed from a criminal record. DC law also provides an off-ramp under Second Look: individuals who were between the ages of 18 and 25 at the time of their offense may petition for a sentence reduction after serving at least 15 years.
Other jurisdictions have codified more diversion options that cover more crimes.
Vermont’s preconviction diversion statute, Title 13, § 7041, allows for deferred adjudication for all individuals regardless of conviction history, unlike DC’s similar statute, Code § 48-904.01(e)(1), which limits eligibility to people who have been convicted of one crime. Unlike DC Code § 48-904.01(e)(1), which is limited to only drug offenses, Colorado Statute § 18-1.3-102 offers deferred adjudication to all defendants, no matter their crime.
WHERE TO LEARN MORE
Vera Institute of Justice April 2018
Prison Policy Initiative July 2021
DC Criminal Code Reform Commission March 2021
Office of the Attorney General for the District of Columbia July 2016
Nashville Banner November 2024
KOIN 6 May 2024
Our Solutions
DC should:
- As imagined by the Criminal Code Revision Commission recommendations, pass a law codifying diversion for individuals facing charges for misdemeanors
- Expand the approach to felonies
special thanks
Kaitlyn Chalker ★ Mona Sahaf