PROMISING PRACTICES IN
NATIONAL ASSOCIATION OF PRETRIAL SERVICES AGENCIES
This publication was supported by Grant No. 2006-F0279-WI-DD, awarded by the Bureau of Justice Assistance.The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. Points of view and opinions in this document are those of the author and do not necessarily represent official positions or policies of the U.S. Department of Justice.
!is important project in highlighting the most promising practices in the “eld of pretrial diversion is
truly one of collaboration. !e monograph is part of a comprehensive grant awarded to the National
Association of Pretrial Services Agencies (NAPSA) and funded through the US Department of Justice’s
Bureau of Justice Assistance (BJA) with the goal of building a broader knowledge base of current
programming in community based problem solving. !e grant supported three major activities which have
now been completed: a national survey of pretrial diversion programs, a revision of the NAPSA Pretrial
Diversion Standards, and this monograph on the most promising practices utilized by the “eld. !e
NAPSA Board of Directors is deeply grateful for the funding to accomplish these projects as well as BJA’s
continued support for the “eld of pretrial diversion.
In writing this document, the authors incorporated the work of many sources including research “ndings,
case law, and information gleaned from the allied grant projects. We would especially like to thank those
pretrial diversion practitioners who took the time to give us thoughtful input and for their willingness to
share detailed information about their programming. !e authors wish to acknowledge those listed below
who contributed signi”cantly to the development of this document.
Authors and Reviewers: Spurgeon Kennedy, James Brown, Barbara Darbey, Anne Gatti, Tara Klute,
Mary Pat Maher, Daniel Peterca.
Reviewed by: NAPSA Board of Directors, Peter Kiers, President.
Contributors: John Bellassai, Karen Galloway, Ann Hubbard, Carol Oeller, Julie Sayler.
Finally, we would like to acknowledge former NAPSA President Michelle R. Brown for her early support
of this project and former NAPSA Diversion Committee Chair James Brown for developing the idea of a
diversion monograph and working to help secure funding for the initiative.<?>
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 3
Pretrial Diversion 5
Promising Practices 7
Report Organization 8
CHAPTER I: PRETRIAL DIVERSION: AN OVERVIEW 9
Program Types 10
Pretrial Diversion Programming 12
Enabling Legislation 13
Case Law 14
CHAPTER II: PROMISING PRACTICES IN PRETRIAL DIVERSION 17
Promising Practices 13
Emerging Practices 30
Challenges and Recommendations 34
APPENDIX A: SELECTED PRETRIAL DIVERSION PROGRAMS 36
Case Law 43
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 4
!e goal of this monograph is to inform criminal justice practitioners and state and local policy makers of:
• Promising and emerging practices in the pretrial diversion field;
• The state of pretrial diversion and major issues and findings within the field; and
• The challenges and opportunities facing diversion practitioners.
!e monograph also represents collaboration between the National Association of Pretrial Services
Agencies (NAPSA) and the U.S. Department of Justice, O#ce of Justice Programs’ Bureau of Justice
Assistance (BJA) to support jurisdictions implementing or considering problem-solving initiatives.
!rough this partnership, NAPSA intends to help advance BJA’s mission to support law enforcement,
courts, corrections, treatment, victim services, technology, and prevention initiatives that strengthen the
nation’s criminal justice system.1
Over the past few years, criminal justice practitioners have rethought their approaches to crime
prevention, adjudication, and punishment. Growing corrections populations, larger court dockets, and
the rising number of former prisoners returning to American communities have forced localities to be
as smart about using criminal justice resources as they are tough on those who commit crimes. In the
last decade, America’s criminal justice systems have become laboratories for innovative programs and
collaborative problem-solving approaches. A body of developing research suggests that these approaches
can reduce crime, promote better victim services, and enhance public trust in the justice system.
Interestingly, many of these problem-solving approaches are based on the well-established concept
of pretrial diversion—community-based alternatives for nonviolent defendants to better address the
underlying social and psychological reasons for their criminal behavior. Specialty courts, community-based
sanctions for quality-of-life crimes, and services and training for former prisoners all have at their core
the idea of using methods outside of traditional case processing and sentencing to provide meaningful
interventions and sanctions for criminal behavior and to help reduce future criminality.
Pretrial diversion programs have operated successfully at the federal, state, and local levels for decades
providing close supervision and needed services to thousands of defendants each year. However, while
its principles often are part of newer approaches, pretrial diversion programming is not well known to
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 5
many outside the pretrial “eld. Information on the topic is dated, with the last major analysis of the “eld
occurring in 1982.2 !ere have been evaluations of individual diversion programs,3 but most recent studies
have focused on diversion components, speci”cally drug testing and treatment, not the utility of the
concept as a whole. However, the willingness of criminal justice policy makers and practitioners to look
beyond normal court and corrections processes for e$ective solutions to crime and recidivism suggests that
now is an advantageous time to “re-introduce” pretrial diversion to the broader “eld. Doing so will give
practitioners another e$ective strategy to address the root causes of crime and to further strengthen the
foundation of future innovations.
Consistent with NAPSA’s Performance Standards and Goals for Pretrial Diversion/Intervention (2008),
this monograph de”nes pretrial diversion as any voluntary option that provides alternative criminal
case processing for a defendant charged with a crime and ideally results in a dismissal of the charge(s).4
Pretrial diversion programs feature: (1) uniform eligibility criteria; (2) structured delivery of services and
supervision; and (3) dismissal—or its equivalent—of pending criminal charges upon successful completion
of the required term and conditions of diversion. !is de”nition encompasses initiatives such as:
• Pretrial intervention (used in Florida, Georgia, New Jersey, and South Carolina);
• Deferred prosecution (Arizona, Colorado, Michigan, North Carolina, Oklahoma, Washington, and
• Accelerated rehabilitative disposition (Pennsylvania);
• Accelerated pretrial rehabilitation (Connecticut);
• Suspending imposition of sentence (Alabama and South Dakota);
• Probation without verdict (Pennsylvania and Wyoming);
2 Kirby, M. and Pryor, D.E. (1982). Practices of Pretrial Diversion Programs: Review and Analysis. Washington, DC: Pretrial
Services Resource Center. NCJ 121909.
3 See for example, Schillo, B., Erickson, B., and Schauben, L. (2003). Review of Operation DeNovo’s Adult Diversion Program:
Clients Who Entered the Program in 2001. Minneapolis, MN: Council on Crime and Justice. Henry, D. A. and Kennedy, S. (1997).
Evaluating the Merrimack County Adult Diversion Program: Process and Outcome Evaluation. Washington, D.C.: Pretrial Services
Resource Center. Anglin, M. D., Longshore, D., and Turner, S. (1999). “Treatment Alternatives to Street Crime (TASC): An
Evaluation of Five Programs.” In Criminal Justice & Behavior, Vol. 26, Issue 2:, at pp. 168-195. Mullen, J. (2007). “Pretrial
Diversion – Its Impact on Recidivism,” Internet article in Online Law Library of American Law and Legal Information, Vol. 3,
“Crime and Punishment in America”, at pp. 1726-27. http://law.jrank.org/pages/1726/Pretrial-Diversion-Impact-on-recidivism.
html. Mullen., J. (2007). “Pretrial Diversion – Results of Drug Treatment, Employment and Social Services,” Internet article in Online
Law Library of American Law and Legal Information, Vol. 3, “Crime and Punishment in America,” at pp. 1727-28. http://law.
4 National Association of Pretrial Services Agencies. (2008). Performance Standards and Goals for Pretrial Diversion/Intervention.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 6
• Probation before judgment (Delaware and Massachusetts);
• Conditional discharge (Delaware and Illinois);
• Intervention in lieu of conviction (Ohio);
• Deferred disposition (Maine);
Some initiatives that are described as diversion do not meet this monograph’s de”nition and are excluded
from discussion. Jail diversion refers to two types of initiatives which are similar to pretrial diversion.
!e most commonly-known jail diversion programs connect arrestees and defendants with serious
mental illnesses (and often co-occurring substance abuse issues) to community-based treatment and
support services. Individuals may be “diverted” either at arrest or at various points during criminal justice
processing.5 !ese programs’ sequential intercept model—identifying and moving mentally ill persons
to alternative programming throughout the arrest, adjudication, and judgment—parallels the pretrial
diversion promising practice of o$ering alternatives to adjudication throughout the pretrial stage.
However, many jail diversion programs maintain regular case processing and cases move to traditional
judgment and sentences based on the o$ense committed.
Jail diversion also often describes pretrial programs that target detainees who can be supervised safely in
the community pending trial.6 !ese pretrial supervision programs seek to minimize the short-term risk
of missing scheduled court appearances and rearrests during case processing. Since defendants under these
programs remain under regular case adjudication, these are not considered true pretrial diversion.
Under post-plea diversion, courts hold guilty pleas or convictions in abeyance pending a defendant’s
completion of community-based supervision and/or treatment or service programs. Pleas and convictions
are vacated following successful program completion. Post-plea diversion programs incorporate
supervision, service, and treatment similar to that o$ered under pretrial diversion. However, these
programs require a guilty plea for diversion eligibility, a practice that is inconsistent with NAPSA
5 See, for example, Lattimore, P.K., Broner, N., Sherman, R., Frisman, L., and Shafer, M.S. (2003). “Comparison of Prebooking
and Postbooking Diversion Programs for Mentally Ill Substance-Using Individuals with Justice Involvement,” Journal of
Contemporary Criminal Justice.%Volume:19 Issue:1, February): 2003%%pp 30-64.
6 See, for example,, Perlstein, J.J. and Henry, D.A.. (1986). Implications of E!ective Case Processing for Crowded Jails – A Manual for
Prosecutors. Washington, D.C.: U.S. Department of Justice, National Institute of Justice, NCJ 099464.
7 National Association of Pretrial Services Agencies. (2008). Standard 4.3. However, diversion standards di$er on conditioning
diversion on the defendant admitting guilt or responsibility for the o$ense. !e National District Attorney Association’s
Diversion Standards favor conditional guilty pleas as an “appropriate mechanism to safeguard the prosecution of the case” if the
defendant does not complete diversion. National District Attorneys Association. (1991). National Prosecution Standards. 44.5 (e).
(Arlington, VA: National District Attorneys Association).
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 7
Practitioners are just beginning to identify and catalogue promising practices in the pretrial diversion “eld.
Independent research is now occurring in the “eld. For example, in a recent NAPSA survey of pretrial
diversion programs, 27 percent of respondents had participated in a process or impact evaluation.8 !e
survey and the information gathered for this monograph constitute the most comprehensive information
on pretrial diversion to date. !e promising practices identi”ed in this monograph have what NAPSA
believes is su#cient empirical support from the sources noted above as well as other criminal justice and
behavioral science “elds.
Promising Practices Sources: !e promising practices literature identi”es three main sources for data: theory
and policy, practical experience, and empirical data. !e monograph’s study design gathers relevant data on
pretrial diversion in each of these categories from the following sources:
!eory and Policy
• Professional standards on pretrial diversion from NAPSA and the National District Attorneys
Association (NDAA), and the American Bar Association’s (ABA) Standards Relating to the
Prosecution and Defense Function.
• Internet research on pretrial diversion programs and practices, relying on certain key words and
• A review of 88 diversion statutes from 45 states and the federal system that identified pretrial diversion
features and practices commonly mandated by state legislatures and court rules.
• A review of approximately 600 appellate-level federal and state criminal cases that addressed
significant issues in pretrial diversion. These were categorized into 28 issue areas that generated the
most litigation and which, therefore, might demand promising practices to be developed in response.
• Selected questions and responses from NAPSA’s 2004-2008 survey of pretrial diversion practitioners.
Promising practices were implicit in many of these questions, and a positive response by a majority of
respondents could indicate practices either critical or promising to program success.
• Information from two hour-long focus groups of pretrial diversion program managers. Sessions
focused on what these practitioners believed are the field’s current best practices.
• Information from workshops on best practices convened at two Annual NAPSA Conferences,
intended to elicit opinions from a wider range of pretrial practitioners.
• Examples from individual pretrial diversion programs regarded as well-functioning. (See Appendix A
for a list of these programs).
8 National Association of Pretrial Services Agencies. (Forthcoming). Pretrial Diversion in the 21st Century: A National Survey of
Pretrial Diversion Programs and Practices. Washington, D.C.: U.S. Department of Justice, Bureau of Justice Assistance.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 8
• A bibliography of published titles relating to pretrial diversion.
• A literature review of other criminal justice efforts—such as problem-solving initiatives and the
evidence-based practices literature from community corrections—and from the behavioral sciences to
identify research on policies and practices similar to those in the pretrial diversion field.
• Program-specific monitoring statistics, gathered internally.
!e monograph includes sections that discuss:
• The nature and extent of pretrial diversion programs today, as a first step to identifying the
field’s promising practices. This includes information on the national scope of these programs,
the supervision and services they offer, enabling legislation for pretrial diversion programming,
evaluations of pretrial diversion programs, and a comparison of pretrial diversion programming with
• A review of promising practices from the pretrial diversion field that may support community-based,
problem-solving criminal justice initiatives. As noted earlier, these will come from current theory and
policy, the experience of pretrial diversion practitioners, and empirical data about individual programs.
• A discussion on the state of pretrial diversion, including the major issues and findings within the field
and the challenges and opportunities facing diversion practitioners.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 9
CHAPTER I: PRETRIAL DIVERSION: AN OVERVIEW
Pretrial diversion programs have been a part of the American criminal justice system since the mid-
1960s.9 !e “rst program—the Citizen’s Probation Authority Program (CPA)—started in 1965 in
Flint, Michigan.10 In 1967, the President’s Commission on Law Enforcement and the Administration
of Justice’s report, “e Challenge of Crime in A Free Society, recommended expansion of pretrial diversion
nationwide.11 In 1968, the U.S. Department of Labor’s Manpower Administration and the U.S.
Department of Justice’s Law Enforcement Assistance Administration awarded funding to dozens of sites
to establish pretrial diversion programs. In 1973, the National Advisory Commission on Criminal Justice
Standards and Goals recommended that all jurisdictions establish pretrial diversion programs.12
!roughout the 1970s, numerous states passed legislation enabling pretrial diversion programs, further
continuing these programs’ growth and legitimizing the concept in local justice communities. A 1974
directory listed 57 pretrial diversion programs in 22 states and the District of Columbia: by 1976, the
number had grown to 148 programs in 42 states and territories.13 Today, NAPSA recognizes 298 pretrial
diversion programs in 45 states, the District of Columbia, and the U.S. Virgin Islands.
Funding and enabling legislation for pretrial diversion programming traditionally has been permissive of
the concept, but not prescriptive about its requirements or key elements. As a result, the pretrial diversion
“eld is diverse in program design and practice and open to broad points of view on “what works” and why.
Nonetheless, most pretrial diversion programs have adopted as goals (1) reducing crime by addressing
the root causes of criminality—most notably, substance abuse, mental health issues, and criminogenic
behavior, and (2) targeting defendants whose o$enses are better addressed through community restitution
than criminal sanction. !ere also is a developing consensus among practitioners on what successful
pretrial diversion programs should include, albeit allowing for considerable local variation.
9 A comprehensive history of pretrial diversion programs is provided in: Bellassai, J.P. A Short History of the Pretrial Diversion of
Adult Defendants from Traditional Criminal Justice Processing. www.napsa.org/publications/diversionhistory.pdf.
10 !e Citizen’s Probation Authority exists today under the Genesee County Pretrial Services Agency.
11 !e President’s Commission on Law Enforcement and Administration of Justice. (1967). “e Challenge of Crime in A Free
Society. Washington, D.C.: U.S. Government Printing O#ce.
12 National Advisory Commission on Criminal Justice Standards and Goals. (1973). Report on Corrections. Standard 3.1, pp. 73-
97.. Washington, D.C.: U.S. Government Printing O#ce.
13 Bellassai, J.P. (1978). “Pretrial Diversion: !e First Decade in Retrospect,” Pretrial Services Annual Journal. pp. 13-16.
Washington, D.C.: Pretrial Services Resource Center.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 10
According to “ndings from NAPSA’s 2008 survey, most pretrial diversion programs (78 percent) are
county-based, with median annual budgets of about $160,000 and median sta$ sizes of around six.
However, the survey also found signi”cant divergence here—for example, almost a quarter of respondent
programs had yearly budgets of less than $100,000 and 40 percent had sta$s of two persons or less.
Pretrial diversion programs tend to be part of larger agencies. Nearly 35 percent of survey respondents
were located within a pretrial services agency, while over 27 percent were under a prosecutor’s o#ce.14
Non-pro”t agencies (13 percent) and probation departments and courts (both at 10.1 percent) were other
common administrative locations.
Yearly defendant placements for survey respondents range from a high of 3,500 to a low of nine. Over 55
percent of the programs with 500 or more annual placements began in the 1970s and over 27 percent in
the 1980s. Conversely, 40 percent of programs with annual placements of 100 or fewer began in the 1990s
and 35 percent in 2000 or later.
Statewide Pretrial Diversion Systems: Several states have comprehensive pretrial diversion systems or
funding options. Connecticut, Kentucky, and New Jersey administer pretrial diversion through divisions
of the states’ Administrative O#ce of the Courts (AOC). Connecticut maintains eight statewide pretrial
diversion programs, the largest being Accelerated [Pretrial] Rehabilitation (AR) administered by the
state’s Community Support Services Division (CSSD). Connecticut Judicial Branch records show 8,017
AR cases “led statewide in Fiscal Year (FY) 2008.15% !e Kentucky Administrative O#ce of the Courts
manages misdemeanor pretrial diversion programs in 43 of the state’s 120 counties, all run through its
Department of Pretrial Services. Pretrial Services handled 6,609 diversion referrals in FY 2008 and
actively monitored an average of 3,668 diversion clients statewide. Diversion clients completed 17,313
hours of community service volunteer work and paid $38,576 in victim restitution.16 New Jersey’s
Pretrial Intervention Program (PTI) operates in each of the state’s 21 counties, and is part of the State
Administrative O#ce of the Courts’ (AOC) Adult Probation Division. !ere were 7,257 statewide PTI
enrollments from July 2007 to June 2008.17
14 Programs begun prior to 1990 most often are prosecutor-based, while those begun since 1990 generally are part of pretrial
15 E-mail correspondence with Larry D’Orsi, Deputy Director, Criminal Matters Court Operations, Connecticut Judicial Branch,
June 8, 2009.
16 Kentucky Department of Public Advocacy. (2009). “e Advocate, Volume 31, No. 1.
17 New Jersey Administrative O#ce of the Courts, (2008). “Fallout Rates: !e Number and Percentage of Criminal Defendants
Terminated From Referral of the Complaint to the Prosecutor !rough Adjudication,” AOC Monthly Report, July 2007- June
2008. Trenton, NJ: New Jersey Administrative O#ce of the Courts.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 11
Massachusetts and Pennsylvania administer statewide programming through state and county probation
departments. Many of these probation divisions are under the judicial branch. In 2007, Pennsylvania’s
Accelerated Rehabilitative Disposition (ARD) programs handled 39,568 cases statewide.18 South
Carolina’s statewide pretrial diversion programs are located administratively under county prosecutors.
Programs in South Carolina supplement public funding with program fees for diversion services.
Maryland, Missouri, Minnesota, Ohio, and Texas fund pretrial diversion programs through their statewide
community corrections agencies. Local probation, prosecutorial, or private non-pro”t agencies provide
diversion programming and oversight.19 Operation de Novo, a private non-pro”t agency, provides pretrial
diversion in Hennepin County, (Minneapolis) Minnesota. In 2008, the program handled 828 felony cases
collected, returned $440,200 in victim restitution, oversaw 10,720 hours of client community service, and
assisted 143 clients with expungements.20
Pretrial Diversion around the World: Other countries have added pretrial diversion to their justice systems.
Drawing on the American innovation, pretrial diversion in these countries has its own adaptations and
body of literature. An overview of international legislation relating to diversion, in countries covered by
the World Health Organization (WHO), indicates that many countries provide diversion to drug- and
alcohol-dependence treatment programs.21 Of the 51 jurisdictions surveyed, 22 diverted persons to
treatment either in lieu of arrest, pending trial, or as an alternative to incarceration following sentencing.22
In France, defendants that comply with a court-determined treatment order are not liable to prosecution;
in Germany, treatment can be credited against a custodial sentence.23 In France and Italy, following
completion of voluntary treatment, “pardons” receive a certi”cate as evidence to protect against subsequent
prosecution for o$enses committed prior to treatment.24
18 Administrative O#ce of Pennsylvania Courts. (2008). 2007 Caseload Statistics of the Uni#ed Judicial System of Pennsylvania.
Philadelphia, PA: Supreme Court of Pennsylvania.
19 Minnesota’s programs are funded under the state’s Community Corrections Act. In Texas, funding comes through the
Community Justice Assistance Division. Maryland funding is through the state’s Department of Public Safety and Correctional
20 Telephone correspondence with Operation de Novo Director, James T. Brown, June 9, 2009.
21 Porter, L., Arif, A.E., and Curran, W.J. (1986). “e Law and the Treatment of Drug- and Alcohol-dependent Persons: A Comparative
Study of Existing Legislation. Geneva: World Health Organization.
22 Ibid., p. 57.
23 Ibid.,p. 171.
24 Leroy, B. (1991). “e Community of Twelve and the Drug Demand. Comparative Study of Legislations and Judicial Practice.
Luxembourg: Commission of the European Community.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 12
New Zealand began an adult pretrial diversion program in 1988 for “rst time arrestees, under which
courts suspend adjudication pending the arrestee’s completion of diversion requirements. !ese may
include restitution, community service, counseling, and treatment.25 South Africa has used community
service orders as a formal sentencing option since the early 1980s. In 1992, the nation established the
Pretrial Community Supervision program, which requires participants to serve a predetermined number
of hours at a community-based program. Charges are dropped upon the participant completing service
hours and adhering to any other court-ordered conditions.26
Pretrial Diversion Programming
Risk and Needs Assessment: Consistent with criminal justice promising practices, all survey respondents
reported using a risk assessment or predetermined eligibility criteria to identify appropriate individuals
for diversion placement. Fifty-eight percent also use other assessments to fashion supervision plans and
identify rehabilitative service needs. Since faster connection to supervision and treatment interventions
can increase e$ectiveness and reduce recidivism,27 75 percent of survey respondents reported screening
defendants following the initial arrest. NAPSA Diversion/Intervention Standards 2.1 also recommends
timely diversion eligibility screening and placement:
“e opportunity to apply for a pretrial diversion/intervention program should be available as soon as possible
to eligible defendants from the point of the #ling of formal charges through #nal adjudication.
Supervision and Services: Over 90 percent of respondents have standard pretrial diversion conditions, most
commonly urinalysis (68.3 percent), restitution (65.1 percent), community service (61.9 percent), and
counseling (60.3 percent). While not a mandatory condition, alternatives to adjudication for “rst-time
arrestees was the most common pretrial diversion program identi”ed by respondents (75.4 percent).28
25 Young, W. and Cameron, N. (1991). Adult Pre-trial Diversion in New Zealand. Wellington: Young & Cameron Policy &
26 Steyn, F. (2005). Review of South African Innovations in Diversion and Reintegration of At-risk Youth. Open Society Foundation
for South Africa.
27 Madras, B.K., Compton, W.M., Avula, D., Stegbauer, T., Stein, J. B., and Clark, H.W. (2009). “Screening, brief interventions,
referral to treatment (SBIRT) for illicit drug and alcohol use at multiple healthcare sites: Comparison at intake and 6 months
later,” Drug and Alcohol Dependence, Volume 99, Issues 1-3:. pp. 280-295. Payne, J. (2007). Discrete-Time Survival Study of Drug
Use and Property O!ending: Implications for Early Intervention and Treatment. Australian Institute of Criminology Technical and
Background Paper, No. 24. Rempel, M. and Depies Destefano, C.D. (2001). “Predictors of Engagement in Court-Mandated
Treatment: Findings at the Brooklyn Treatment Court, 1996-2000,” Drug Courts In Operation: Current Research . pp. 91-93.
28 Twenty-eight of 33 respondent programs started before 1990 (84.8 percent) o$ered “rst-time arrestee diversion services,
compared to 23 of 35 (65.7 percent) of programs started since 1990. !ere were no di$erences by program age in drug court or
mental health programming.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 13
Since supervision combined with treatment and other services has been shown to reduce future rearrest,29
drug court (31.9 percent), mental health services (21.7 percent), and programming for driving under
the in&uence and other tra#c charges (18.8 percent) were other prominent pretrial diversion conditions
Over half of respondents that provided information impose sanctions short of program termination to
address participant noncompliance. !ese included increasing community service hours, modifying the
diversion contract or level of supervision, increasing drug testing or treatment requirements, requesting
short-term jail placements, providing written or verbal warnings, and requiring additional counseling.
!is practice conforms to criminal justice and behavioral science research showing that swift, certain,
and equitable responses to supervision and treatment noncompliance reduce future noncompliance and
Consistent with NAPSA Diversion Standard 4.4, over 69 percent of survey respondents providing
information have established time limits for diversion participation. !ese include set time limits (26
respondents), minimum and maximum times (15 programs), and di$ering set times for persons charged
with misdemeanors or felonies (four programs). Set time periods range from three months to three years,
with a median of 12 months. Median set time periods for misdemeanor and felony-charged participants
are six months and 12 months, respectively. Programs with a minimum/maximum range reported a
median minimum time of three months and median maximum time of 12 months.
!ere are at least 80 diversion statutes on the books in 45 states. Half are less than 20 years old—15 were
enacted in the 1990s and another 25 since 2000. Several statutes enacted before 1990 have been amended
since 2000. Statutes for pretrial diversion are quite diverse: some are broad-brush enabling legislation
29 Skeem , J.L. and Manchak, S. (2008). “Back to the Future: From Klockars’ Model of E$ective Supervision to Evidence-Based
Practice in Probation,” Journal of O!ender Rehabilitation, Volume: 47 Issue:3:, pp. 220-247. Bonta, J., Wallace-Capretta, S., and
Rooney, J. (2000). “Quasi-Experimental Evaluation of an Intensive Rehabilitation Supervision Program,” Criminal Justice and
Behavior,%Volume:27%Issue:3: , pp. 312-329. Harrell, A., Hirst, A., Mitchell, O., Marlowe, D., Merrill, J. (2001). Evaluation of
the Breaking the Cycle Demonstration in Birmingham, Alabama: Final Report. Washington, D.C.: !e Urban Institute. San Diego
Association of Governments (SANDAG) Criminal Justice Research Division. (1995). Supervising Drug-Involved O!enders in the
Community: An Integrated Approach. San Diego, CA: San Diego Association of Governments.
30 Harrell, A. and Roman, J. (2001). “Reducing Drug Use and Crime Among O$enders: !e Impact of Graduated Sanctions,”
Journal of Drug Issues, Volume:31%Issue:1 . pp. 207-232. Mitchell, O. and Harrell, A. (2006). “Evaluation of the Breaking the Cycle
Demonstration Project: Jacksonville, FL and Tacoma, WA,” Journal of Drug Issues, Volume:36%%Issue:1): . pp. 97-118. Burke, C. and
Pennell, S. (2001). What Works: San Diego County’s Breaking Cycles Program. San Diego Association of Governments (SANDAG),
Criminal Justice Research Division. Marlowe, D.B. and Kirby, K.C. (1999). “E$ective Use of Sanctions in Drug Courts: Lessons
From Behavioral Research,” National Drug Court Institute Review. Volume 2, %Issue 1. pp. 1-31.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 14
while others are extremely detailed prescriptive formulas. Several statutes in the latter group allow state
legislatures rather than prosecutors to outline the rules and requirements for pretrial diversion.
Legislatures in nearly every state have codi”ed pretrial diversion features and practices. Courts have
upheld legislatures’ activities here: no court has found a constitutional violation of the separation-ofpowers
doctrine arising from legislatures de”ning the scope and features of pretrial diversion.
Following the National Advisory Commission on Criminal Justice Standards and Goals support of
pretrial diversion programming, several major criminal justice associations established standards of their
own. In 1977, the National District Attorney’s Association (NDAA) advocated pretrial diversion in the
“rst edition of its National Prosecution Standards.31 !is was reiterated in the Association’s 1991 update:
“e diversion alternative to prosecution is an increasingly utilized and e!ective mechanism for dealing with
o!enders. Since the promulgation of the original standards in 1977, diversion has been adopted in almost
every jurisdiction in the United States.32
NAPSA issued its “rst set of pretrial diversion standards in 1978 and revised them in 1995 and 2008.33
At its 1976 annual conference, ABA passed a joint resolution favoring expansion of diversion programs,
the “rst time the ABA formally advocated these programs. !e ABA currently is drafting standards for
diversion and problem-solving initiatives.
Since the 1970s, America’s state and federal appeals courts have reviewed over 600 cases related to
signi”cant pretrial diversion issues.
• Prosecutor Discretion. Over 200 cases from 21 states and nine federal circuits address the limits
on prosecutorial discretion in diversion decision-making and whether judicial review of prosecutor
decisions or legislative standards violates separations of powers.
• Consequences for Subsequent Legal Proceedings. Eighty cases from eight states and two federal
circuits center on the use of diversion program information in other legal proceedings.
31 National District Attorney’s Association. (1977). National Prosecution Standards. 44.1-44.8. Diversion Arlington, VA: National
District Attorneys Association.
32 National District Attorney’s Association. (1991). p. 138.
33 National Association of Pretrial Services Agencies. (2008).
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 15
• Ramifications in Other Endeavors. Another 100 cases from 13 states and 10 federal circuits examine
whether successful completion of diversion can later be viewed as a law violation in other contexts,
such as in state licensing board revocation hearings, military recruitment or discharge proceedings, and
civil and family court proceedings.34
Opinions have been as varied as the courts rendering them. For example, several courts have ruled that
the judiciary may overturn a prosecutor’s denial of diversion placement if, in the words of the New
Jersey Supreme Court, these were based on, “patent and gross abuse of discretion.”35 Other courts have
maintained that the prosecutor’s decision to grant and deny diversion is beyond judicial review.36 As one
“e courts have split on the due process rights of participants facing termination; some have ruled that
participants have the right to a hearing, others not. Finally, some courts have come to di!erent conclusions
regarding the use of pretrial diversion information in subsequent court proceedings or in other settings….
“e cases do make clear, however, that, at minimum, prosecutors maintain substantial authority over the
operations of pretrial diversion. Even in jurisdictions where the statute gives the judiciary the #nal say in
admission and termination decisions, the courts recognize that the views of the prosecutor must be given
!e volume of opinions found show that courts are at least willing to review practices that once were
viewed as strictly the domain of prosecutors. While the opinions delivered vary—usually based on
the statutory rules in place for pretrial diversion—they illustrate that due process concerns permeate
pretrial diversion programming; from o$ering or denying program admission, determining conditions
of placement, use of program information, and even “nal termination. Court activity makes it clear that
pretrial diversion practitioners must be mindful of and o$er signi”cant safeguards to participants’ due
process rights at each point of the process. As noted later, due process protection is a pretrial diversion
34 Clark, J. (2008). Pretrial Diversion and the Law: A Sampling of Four Decades of Appellate Court Rulings. Washington, D.C.:
Pretrial Justice Institute.
35 State v. Leonardis, 363 A.sd 321 (1976). See also State v. Hemmersly, 650 S.W.2d 352 (Tennessee, 1983).
36 See Clayton v. Lacy, 589 N.W. 2d 529 (Nebraska, 1999) and Cleveland v. State, 417 So. 2d 653 (Florida, 1982).
37 Clark. (2008). p. VIII-1.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 16
Measured by the percentage of participants who successfully complete supervision, pretrial diversion
programs are e$ective alternatives to traditional case processing. Respondents to NAPSA’s survey
averaged an 85 percent successful program completion rate, with nearly 85 percent of those responding
reported success rates of 70 percent or higher. However, these “gures are tempered by the very small
number of programs that keep recidivism data, a key success indicator.38 Only 36 percent of respondents
maintained data on recidivism rates. While reported rates were low—the median recidivism rates for these
respondents were “ve percent for new felonies, 12 percent for new misdemeanors, and one percent for new
serious tra#c o$enses—the periods of time that respondents tracked new convictions following program
completion varied greatly, from one year to “ve years.
!ere is a dearth of recent evaluations of pretrial diversion programs, and more comprehensive literature
about the pretrial diversion “eld is dated. Developing and cataloging appropriate research designs
for pretrial diversion programs are a critical challenge for the “eld and should be actively pursued to
determine the scope and worth of this type of programming to the criminal justice community.
38 !e survey de”ned “recidivism” as the percentage of diversion participants convicted of a new o$ense following program
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 17
CHAPTER II: PROMISING PRACTICES IN PRETRIAL DIVERSION
Using identi”ed theory, law, and practice, the experience of practitioners, and “ndings from empirical
evaluations as guides, the authors found nine practices that rank as the best in pretrial diversion today.
NAPSA and its Board recognize these as the best of pretrial diversion programming practices and
recommend them to programs and jurisdictions wishing to incorporate the most e$ective practices that
the “eld has to o$er.
Promising Practice #1: Formalized cooperative agreements between the pretrial diversion program and
key stakeholders to assure program continuity and consistency
Promising Practice #2: Defendant access to counsel before the decision to participate in pretrial
Promising Practice #3: Speci”c due process protections incorporated into programming.
Promising Practice #4: Broad, equitable, and objective diversion eligibility criteria, applied consistently at
multiple points of case processing.
Promising Practice #5: Uniform and validated risk and needs assessment to determine the most
appropriate and least restrictive levels of supervision and services needed.
Promising Practice #6: Intervention plans tailored to individual participant risks and needs and
developed with the participant’s input.
Promising Practice #7: Graduated sanctions short of termination as responses to participant behavior.
Promising Practice #8: Maximum possible privacy protections for participants and program records.
Promising Practice #9: Independent program evaluations.
Promising Practice #1: Formalized cooperative agreements between the pretrial diversion program
and key stakeholders to assure program continuity and consistency.
Every pretrial diversion program requires an understanding among itself, the prosecutor, the court, and
other appropriate partners about program eligibility, requirements, and outcomes. !e earliest diversion
programs relied more on informal understandings of such details, but found these arrangements highly
person-dependent and thus potentially subject to di$erent interpretations by successive actors. Today,
successful programs collaborate with partner agencies under formalized written agreements that provide
more clarity and continuity. With a written agreement in place, successive prosecutors, administrative
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 18
judges, and diversion program directors are less likely to change the prescribed procedures. !e defense
bar prefers formal agreements since they provide transparency about the rules governing diversion and
consistency in treatment of each defendant who participates.
!e value of written guidelines for program eligibility is recognized by the 2008 edition of the NAPSA
Diversion/Intervention Standards. Standard 3.3: states that “formal eligibility guidelines, unless dictated
through legislative statute, should be established and reduced to writing after consultation among
program representatives and appropriate criminal justices o#cials. !e guidelines should be updated on a
regular basis and widely distributed to all interested parties.” Standard 3.4 takes the adherence to such an
agreement a step further, enjoining diversion programs that have an a#rmative obligation to ensure the
guidelines are consistently applied and that criminal justice professionals who are a part of that agreement
also have a responsibility to ensure that the application is fair. Later in Standard 9.2, NAPSA further
emphasizes the need for diversion programs to establish ongoing and e$ective partnerships with major
criminal justice entities. Such partnerships promote the practices of consistency in application of eligibility
criteria and in the processing of diversion participants.
More than a third of the NAPSA survey respondents (36 percent) indicated that they were governed by a
memorandum of understanding (MOU) executed between key system actors, typically the prosecutor, the
court, and the diversion program. Signi”cantly, 34 percent of respondents (22) said they were governed by
multiple sources of operating authority, i.e., some combination of interagency agreement, state statute, and
!e importance of having an interagency MOU in place was also identi”ed as a promising practice by
participants in the focus groups held in the fall of 2008. In both focus groups, the issues of collaboration
and communication were identi”ed as key elements for successful diversion programs. !e groups also
identi”ed that the standardization of eligibility through agreements with key actors was critical to the
overall success and viability of programs.
A broad array of statewide diversion enabling statutes and court rules suggests that in many states, the
issues generally described in an interagency MOU at the local level—rules and responsibilities of the
prosecutor, the court and the diversion program—are often also addressed by state law. Even in states
where there are statutory guidelines, many programs “nd that such agreements can complement those
requirements and build local support and continuity.
Having an interagency governing MOU in place has been identi”ed in the drug court policy and
evaluation literature as a key program feature. !is literature strongly suggests it is a promising practice
in the context of drug courts. As many drug courts have a pretrial diversion track under which successful
program completion results in a dismissal of all pending charges, this is clearly a useful analogy for the
pretrial diversion “eld as a whole.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 19
Promising Practice #2: Defendant access to defense counsel before the decision to participate in
Pretrial diversion is a legal option that, if accepted, will result in a dismissal or return to full prosecution.
Either way, dispositional consequences follow the defendant’s choice. Just as no court will accept a guilty
plea without “rst assuring that the defendant fully understands the consequences of his or her admission,
the consequences of participation and performance in pretrial diversion must be fully informed and the
decision to enroll in such a program must be completely voluntary. Access to competent counsel assures
that the defendant can discuss his/her legal options and provides the information necessary to make
an informed decision as to the best route to take with the charge. For example, many pretrial diversion
programs take felony charges where critical rights must be waived in order to enter the program. Without
the ability to consult counsel, a defendant may not be truly informed of the consequences of such waivers.
!e importance of a$ording a defendant access to counsel with regard to diversion-related decisionmaking
is addressed in two sections of the 2008 NAPSA Diversion/Intervention Standards:
Standard 2.2: A potential diversion/intervention program participant should have the opportunity to
consult with counsel before making the decision to apply for diversion.
Standard 4.1: Prior to making the decision to enroll in a pretrial diversion/intervention program, a
potential participant should be given the opportunity to review with counsel the merits of his or her case and
a copy of the general program requirements including program duration and possible outcomes.
!e Commentary under each of these Standards discusses the importance of the defendant’s need to
fully understand all legal options available as well as the consequences of participation in a diversion
intervention. !e pretrial diversion process is voluntary; defendants who consider participating must give
informed consent. With as many options as are available today in the criminal courts, by far, the promising
practice for any diversion program is to encourage potential participants to consult with counsel prior to
!e ABA Standards for Criminal Justice require prosecutors to “be familiar with the resources of social
agencies which can assist in the evaluation of cases for diversion from the criminal process.39” !e
Standards also de”ne for defense counsel a “duty to explore” non-criminal dispositions such as pretrial
diversion on behalf of, and with, the client.40 Commentary from the NDAA National Prosecution
39 American Bar Association. (1993). ABA Standards for Criminal Justice: Prosecution and Defense Function, (3rd Edition). Standard
3-3.8. p. 69. Washington, D.C.: American Bar Association.
40 Ibid., Standard 4-6.1(a): . p. 203.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 20
Standards 44.1 – 44.8 recommends that defense counsel should be aware of, and involved in, the
defendant’s decision to accept diversion.41
Statewide diversion statutes and court rules enacted in recent years have mandated transparency for
eligibility determinations and due process safeguards to address arbitrary rejection from enrollment or
unsatisfactory termination without an impartial review. !ere has been a signi”cant amount of litigation
with regard to such practices over the years. Representation by counsel for not only the initial diversion
decision but also for the duration of the program addresses the concerns expressed by the courts in their
decisions. Most recent state statutes have incorporated representation as a standard practice.
Several model programs identi”ed for in-depth review demonstrate the application of promising practices
in this area. !e San Francisco Pretrial Diversion Program has an especially cordial and cooperative
relationship with the local bar association and public defender service. !is program regularly involves
defense counsel in diversion eligibility reviews and related decision-making. In-house records of the
program’s website “hits” demonstrate that many defense attorneys use the program’s website regularly to
check program eligibility criteria and other program requirements, as well as to contact the program.
Likewise, the Pretrial Services Corporation of Monroe County (NY) Bar Association’s diversion program
has a close and cooperative relationship with the local defense bar and, by policy, a participant must be
represented by counsel to enter the program unless he has been speci”cally designated as pro se by the
Several of the model diversion programs singled out for in-depth focus display particular applications of
promising practices in this area. !e San Francisco Pretrial Diversion Program involves defense counsel
at both program startup and in the event of in-program compliance problems, informing them by letter
before any hearing for unsuccessful termination is scheduled. !e Essex County Pre-Trial Intervention
Program, like all county-based pretrial intervention programs in New Jersey, involves defense counsel at
each critical stage of the program. Diversion agreements are reviewed by counsel before being signed and
are presented to the court. Many of the model diversion programs report involving counsel at all phases
of the diversionary process and engaging counsel in a partnership with the participant that supports
individual intervention plans.
41 National District Attorneys Association. (1991). Standard 44.8: . p.137.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 21
Promising Practices #3: Specific due process protections are incorporated into programming.
Given pretrial diversion clients’ status as defendants, due process protection—the fundamental fairness of
laws and legal proceedings—has been a central focus in diversion standards, case law, and programming.
NAPSA’s Diversion/Intervention Standards stress the importance of due process safeguards throughout
the diversion process. !ese include the right of defendants to a review of a prosecutor’s decision to deny
pretrial diversion placement (Standard 4.5), written reasons for decisions to terminate pretrial diversion
placements (Standard 7.2), and the defendant’s right to challenge a termination action (Standard 7.3).
While maintaining the prosecutor’s discretion in making o$ers for pretrial diversion placement, the
NDAA Prosecution Standards recognize the importance of protecting a defendant’s due process rights
at this stage. !e NDAA advocates defendants’ rights to consult with an attorney before accepting a
diversion o$er, the presence of a judicial o#cer to ensure that su#cient factual basis exists for a criminal
charge, and to determine if the defendant’s acceptance of diversion is voluntary.42
Court opinions have touched upon several due process concerns. !ese include procedural due process
issues,43 such as judicial review of prosecutorial decisions to deny pretrial diversion placements and to
terminate program participation, the appropriateness of diversion conditions, and the use of program
information following termination.44 Fewer cases have examined substantive due process issues,45 however
courts have considered whether prosecutors exercised discretion fairly when denying pretrial diversion and
terminating agreements and whether conditions of supervision or treatment were actually proper.46 While
case law on due process concerns is mixed, the willingness of courts to examine the fairness of pretrial
diversion decision-making and processing make due process an important consideration for pretrial
Several respondents to the NAPSA survey described due process protections built in to program
procedures. All respondents reported that defendants could appeal decisions to exclude them from
pretrial diversion: 75 percent state that defendants could appeal a denial to the court. Half of respondents
answered that defendants also could appeal a decision to terminate pretrial diversion participation.
42 National District Attorney’s Association. (1991). Standard 44.8. p.137.
43 Procedural due process assumes just procedures and government actions whenever individual rights are restricted and that
decision makers be impartial in regards to the matter before them. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
44 Clark. (2008).
45 Substantive due process assumes that basic rights cannot be abridged without appropriate governmental justi”cation. Griswold
v. Connecticut, 381 U.S. 479 (1965).
46 Clark. (2008).
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 22
Promising Practices #4: Broad, equitable and objective diversion eligibility criteria, applied consistently
at multiple points of case processing.
Most diversion/intervention programs have established eligibility criteria that include the nature and
seriousness of the present o$enses charged and the defendant’s past criminal history, if any. While most
programs look at other factors in addition to these two when determining whether to accept a given
defendant into diversion, the present o$ense and prior history requirements are universally applied. In this
regard, every existing state statute and court rule which governs pretrial diversion speaks to the degree to
which program eligibility can be conditioned upon present charge and prior o$enses.
Ideally, granting a defendant entry into a pretrial diversion program allows him or her to secure dismissal
of the pending charges upon successful completion. As such, diversion programs dispense important
bene”ts on behalf of the criminal justice system. Basic fairness dictates that two defendants similarly
charged, and with similar criminal histories, should receive equal consideration for diversion, even if
other factors such as motivation and willingness to accept responsibility for one’s actions are the “nal
determinants about acceptance into the program. For many years, courts have recognized the importance
of uniform eligibility criteria, as have state legislatures which have included guidance about eligibility
criteria in their statutes with regard to diversion.
!e importance of o$ering diversion at various points along the processing of a criminal case is
recognized by NAPSA as being critical for good practice. !is is addressed in several places in the
NAPSA Diversion/Intervention Standards, speci”cally in Standards 2.1 and 3.1. Both discuss the points
at which diversion may be o$ered and encourage the broadest application of eligibility criteria.
Standard 2.1: “e opportunity to apply for a pretrial diversion/intervention program should be available
as soon as possible to eligible defendants from the point of the #ling of formal charges through #nal
Standard 3.1: Pretrial diversion/intervention program eligibility criteria should be broad enough to
encompass all potential participants who are amenable to the pretrial diversion/intervention option.
!ere is support for this practice through a number of other models of intervention. !e Sequential
Intercept Model for those with serious mental illness in the criminal justice system promotes
interventions at a number of points along the case processing continuum.47 A key component under the
drug court model states that eligible participants should be identi”ed early and that written eligibility
47 Munertz, M.D., Mark R., and Gri#n, P.A. (2006). “Use of the Sequential Intercept Model as an Approach to Decriminalization
of People with Serious Mental Illness” Psychiatric Services, Vol. 57, No. 4. p. 544.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 23
criteria should be applied. !is key component also supports the practice of having a potential participant
consult counsel when considering entering drug court.48
Several questions in the diversion program survey addressed program eligibility criteria. !e responses
uniformly mentioned present charge and prior criminal record as key eligibility criteria. !ere appears to
be more variance in exclusionary criteria. Most programs limit diversion to “rst-time defendants charged
with non-violent o$enses. Most programs responding reported accepting defendants with felony or
misdemeanor charges. Other frequently mentioned criteria included amenability to treatment, acceptance
of responsibility, and residence in the jurisdiction.
!e majority of these pretrial diversion-related state statutes and court rules are prescriptive: they mandate
that diversion occurs under certain circumstances and for certain defendants, and de”ne roles for speci”c
system actors. !e single feature that these statutes and court rules share is the description of inclusionary
and exclusionary criteria for pretrial diversion in their respective states. Signi”cantly, these eligibility
criteria tend to be quite broad—though the prosecutor almost always has the option to exclude particular
defendants from diversion for “good cause.” !at said, statutorily de”ned eligibility is presumptive and the
prosecutor invariably must state the reasons for exclusion. In most states, these decisions are reviewable by
the court which can overrule the prosecutor if it considers the decision to be in con&ict with the intent of
the state statute.
Several of the model programs studied for this monograph demonstrate promising practices here. For
example, the Essex County Pretrial Intervention Program, like all county PTI programs in New Jersey,
adheres to statewide eligibility guidelines set out in the New Jersey Supreme Court’s rule governing
PTI and in a complementary state statute. !ese guidelines are extremely broad, stating that “any
indictable o$ense” is presumptively eligible for diversion. Essex County successfully diverts hundreds of
cases annually, many of them felony charges. Operation de Novo in Minneapolis accepts any “rst-time
defendant charged with a felony or misdemeanor property o$ense. !e program has diverted felonycharged
defendants for the past 37 years, and has demonstrated an impressive success rate. !e Pretrial
Services Corporation of the Monroe County (NY) Bar Association pretrial diversion program has for
decades accepted felony o$enses and high misdemeanors, with impressive success rates. While limited to
“rst-time misdemeanors, the San Francisco Pretrial Diversion Program demonstrates promising practice
by screening cases for diversion at multiple points in the pretrial system, starting with pre-arraignment
lockup, extending to arraignment court and second appearance.
48 National Association of Drug Court Professionals, Standards Committee. (1997 and 2004). De#ning Drug Courts: the Key
Components. Washington, D.C.: U.S. Department of Justice. Bureau of Justice Assistance. p. 5.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 24
Promising Practice #5: Uniform and validated risk and needs assessment to determine the most
appropriate and least restrictive levels of supervision and the types of services needed.
Standardized risk and needs assessment instruments have become standard in criminal justice.49 !ese
instruments, routinely used at or shortly after entry or enrollment, gather information about underlying
lifestyle problems and behavioral dysfunctions such as substance abuse, mental health problems, anger
management, and tendencies toward violence. Since pretrial diversion programs have reduction in
criminality as a goal, risk assessment encompasses identifying the defendant’s risk of future arrest and the
level and type of supervision and services needed to reduce that risk.
!e importance of validating these instruments is critical to assessing whether the instrument actually
measures the needs and the risks of an individual. Most social service and community corrections
literature caution against borrowing risk and needs assessment instruments used in one locale on one
population and transferring them to another locale for use on another population without “rst testing
them in the new setting. Most high functioning diversion programs have established the validity of their
chosen assessment instrument with their own population before implementing its use.
!e importance of assessing public safety risk and treatment needs for diversion participants has grown as
eligibility criteria have broadened beyond “rst time misdemeanor charged defendants and as individuals
with more serious dysfunctions such as substance abuse and mental health problems have entered
diversion programs. For these reasons, the NAPSA Diversion/Intervention Standards now stress the
importance of conducting a comprehensive risk and needs assessment of every new diversion enrollee, at
or shortly after program enrollment. Standard 5.1 speci”cally addresses this practice.
All respondents in NAPSA’s survey of pretrial diversion programs indicated that they conducted risk/
needs assessments of program clients. Fifty-eight percent of respondents indicated using a formalized risk
or needs screening instrument. !e use of a standardized assessment was identi”ed as a promising practice
by participants in the focus groups convened at the 2007 NAPSA Annual Conference and Training
Institute. Most participants indicated their programs used such an instrument.
49 See, for example, Van Nostrand, M. (2007). Legal and Evidence Based Practices: Application of Legal Principles, Laws and Research.
Washington, D.C.: National Institute of Corrections. Bonta, J., & Hanson, R. (1995). Violent recidivism of men released from
prison. Paper presented at the 103rd Annual Convention of the American Psychological Association, New York, NY. Brizer, D.
(1989). “Introduction: Overview of current approaches to the prediction of violence.” In D. Brizer & M. Crowner (Eds.), Current
approaches to the prediction of violence. Washington, D.C.: American Psychiatric Press, Inc. Cormier, R. B. (1997). “Yes, SIR! A
stable risk prediction tool,” Forum on Corrections Research, 9(1), 3-7. Gottfredson, S. (1987). “Prediction: An overview of selected
methodological issues.” In D. Gottfredson & M. Tonry (Eds.), Prediction and Classi#cation (pp. 21-51). Chicago, IL: University of
Chicago Press. Howe, E. (1994). “Judged person dangerousness as weighted averaging,” Journal of Applied Social Psychology, 24(14),
1270-1290. Litwack, T., Kirschner, S., and Wack, R. (1993). “!e assessment of dangerousness and predictions of violence: Recent
research and future prospects,” Psychiatric Quarterly, 64(3), 245-271. Wolfe, R. (2007). Expanding the Use of Problem Solving.
Washington, D.C.: Center for Court Innovation. p. 3.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 25
Where there exists a uni”ed pretrial services agency that both recommends for pretrial release and screens
for pretrial diversion—as is done by pretrial release and diversion programs in Kentucky, Project Remand
in St. Paul, Minnesota, the Pretrial Services Corporation of the Monroe County (NY) Bar Association,
and the Allegheny County (PA) ARD Diversion Program—there is a promising practice that illustrates
multiple cost-savings and system e#ciencies.
Uniform risk/needs assessments are employed by most of the model diversion programs singled out for
in-depth attention earlier in this study. For example, both the Pretrial Services Corporation of the Monroe
County (NY) Bar Association pretrial diversion program and the San Francisco Pretrial Diversion
Program have devised streamlined, in-house assessment forms that include questions from validated
clinical assessment instruments. Both the Maricopa County TASC Diversion Program and the Miami-
Dade County Drug Court Program divert drug-dependent defendants charged with serious felonies.
Each uses established, validated clinical assessment tools with all their clients.
Promising Practice #6: Intervention plans tailored to individual participant risks and needs and
developed with the participant’s input.
!e basic requirements of a diversion plan or agreement tend to be uniform for most defendants
enrolled in the diversion program—for example, admit responsibility for one’s actions, keep all scheduled
appointments, and make restitution payments. Beyond these standard conditions, the promising practice
is to individually tailor requirements based on the needs and risks identi”ed through the assessment
instrument. Such conditions should be directly related to reducing the risk of future arrests and can
include attending treatment for drug abuse, alcohol abuse, mental health problems, or other speci”c
need. In this regard, diversion programs resemble many other community corrections programs. It &ows
logically from the promising practice of risk/needs assessment to have the results of those assessments
re&ected in the intervention plan devised for the participant. !ough the broad requirements of any
given diversion program remain constant and applicable to all who participate, current best thinking is to
add individually-tailored services and supervision requirements that address the individual’s risk/needs
pro”le. !is practice is supported in the evidence-based principle of targeted interventions to achieve risk
Targeted interventions consider the total person entering the program and are sensitive to cultural, gender,
and trauma-related issues. Referrals for services outside the program must be competent to respond to the
unique needs of the diverted individual in order to intervene meaningfully. !e “responsivity principle”
described by the Crime and Justice Institute suggests that programs consider individual characteristics
when matching people to services.51 !e NAPSA Diversion/Intervention Standards address the
50 Crime and Justice Institute. (2004). Implementing Evidence Based Practice in Community Corrections: the Principles of E!ective
Intervention. Washington, D.C.: National Institute of Corrections. p. 4.
51 Ibid., p. 5.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 26
importance of individually-tailored services and supervision in several places. Standards 5.2, 5.5, and
9.5 all emphasize the promising practice of designing individualized programming that addresses risk
reduction through services tailored to meet criminogenic factors and ensuring that the services provided
“t the participant’s needs.
Standard 5.2: A pretrial diversion/intervention program should utilize individualized and realistic
intervention plans, which feature achievable goals. Plan formulation should occur as soon as possible after
enrollment in consultation with the participant and should be reduced to writing. “e written intervention
plan should contain the conditions to be met by the participant and the potential outcome for the criminal
case upon successful completion or unsuccessful termination.
Standard 5.5: A pretrial diversion/intervention program should develop, identify, and partner with
treatment and other types of services in their community which have demonstrated e!ectiveness and the
ability to provide culturally competent and gender-speci#c programming for participants.
Standard 9.5: A pretrial diversion/intervention program should be, in all policies and actions, culturally
sensitive and informed. All program policies and procedures should support the inclusion of and equal
opportunity for sta! and participants regardless of race, ethnic origins, gender, sexual orientation, physical
ability and/or any other protected class . . .
Analogies to similar programs such as TASC and Drug Courts which intervene with drug-using
defendants strongly suggest that tailored service and supervision plans are key factors in program and
A number of the model pretrial diversion programs apply this promising practice. Both the Circuit
Solicitor’s Pre Trial Intervention Program in Columbia, South Carolina and the Citizens’ Probation
Authority Deferred Prosecution Program in Flint, Michigan uniformly prepare individually-tailored
intervention plans, which are presented to the participant, discussed, and then signed by all parties,
supplementing the standard diversion contract entered into at enrollment time.
An equally important aspect of devising and employing individualized services and supervision
requirements that address the needs/risk assessment outcome is ensuring that conditions are not excessive.
Best practices literature suggests that “over-programming,” especially of lower-risk defendants, often leads
to more technical violations with no improvement of therapeutic outcomes.52
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 27
Two NAPSA Diversion/Intervention Standards address aspects of this concern. Standard 5.3
recommends that pretrial diversion/intervention plans “should be the least restrictive possible to achieve
agreed-upon goals and should be structured to minimize the risk of future criminal behavior.” Standard
5.6 advises that additional supervision or service requirements should be “necessary to achieve agreedupon
goals” and determined “after consultation with the participant.”
Respondents to the online program survey indicated that standard conditions were imposed in their
programs, with drug testing (68 percent), restitution (65 percent), community service (62 percent), and
counseling (60 percent) being imposed most commonly. Most of these conditions appear to be minimally
restrictive and closely related to the core purposes of the program and to the defendant’s rehabilitation.
Several of the selected programs demonstrate applications of promising practices with regard to utilizing
only the least restrictive conditions necessary to achieve successful program completion. For example,
the PTI programs in East Baton Rouge, LA and Columbia, SC, the San Francisco Pretrial Diversion
Program, Operation de Novo, and the Maricopa County TASC Program all employ the least restrictive
diversion conditions possible.
Promising Practice #7: Graduated sanctions short of termination as responses to participant
Criminal justice and behavioral science literature suggest that swift, certain, and equitable responses
to noncompliance with conditions of supervision can reduce future noncompliance and recidivism.53
!is practice also is well incorporated in pretrial diversion programming. For example, over 75 percent
of NAPSA survey respondents impose administrative sanctions short of program termination to
address participant non-compliance. !ese sanctions included increases in community service hours (15
responding programs), modi”cations to the diversion contract or level of supervision (12), and increases
in drug testing or treatment requirements (10). More speci”cally, programs such as Operation de Novo,
Project Remand, and Kentucky’s statewide programs incorporate sanctions into their approach to program
compliance. Kentucky’s programs have complete discretion over administrative sanctions and have written
guidelines for consistency and quality assurance.
As early as the 1978 NAPSA Diversion Standards, there have been indications that this practice should
be utilized. !e Standards enjoin programs to “nd ways to increase compliance and encourage success
through altering any conditions set which might mitigate the increased risk. !is practice is supported in
the literature through both drug courts and community corrections. Further, the Standards have advocated
that a rearrest while in program should not be cause for automatic program dismissal.
53 See supra note 30.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 28
Promising Practice #8: Maximum possible privacy protections for participants and program
!e introduction to the 2008 NAPSA Diversion/Intervention Standards discusses at length the
challenges faced by pretrial diversion programs in the “information age” of the 21st century, as they try to
protect both the privacy of program records and the public fact of an arrest that ends in a dismissal upon
successful completion of diversion. Web-based search engines, when combined with the mandates of open
records laws in many states, has impacted the pretrial diversion program’s ability to assure participant
privacy. Despite these real and formidable challenges, it is incumbent upon all diversion actors, not only
program managers but the prosecution and courts o#cials with whom they interface, to strive to insure
the maximum privacy provided by law to all facets of pretrial diversion.
!is particular promising practice encompasses two aspects: privacy for the defendant as an individual
and the privacy of program records. Both issues are related to the unique legal status a$orded a pretrial
participant. Diversion programs ask that participants take responsibility for the behaviors which brought
them into the system. Such information has prosecutorial interest and, as such, should not be used to
convict the participant should he/she fail the program. Diversion programs also promote the expungement
of criminal records upon successful completion. !e following sections of the 2008 Diversion/Intervention
Standards enunciate the parameters of a promising practice in this area.
Standard 6.3: Upon successful completion of a pretrial diversion/intervention program, a participant should
have his/her record sealed or expunged.
Standard 8.1: A pretrial diversion/intervention program should specify to the potential participant at the
time of entry precisely what information might be released, in what form it might be released, under what
conditions it might be released and to whom it might be released, both during and after participation. As a
general rule, information gathered in the course of the diversion/intervention process should be considered
con#dential and may not be released without the participant’s prior written consent.
Standard 8.2: A pretrial diversion/intervention program should strive to guarantee, by means of interagency
or intra-agency operating agreements or otherwise, that no information gathered in the course of a diversion
application or participation in a diversion/intervention program will be admissible as evidence in the
diverted case or in any subsequent civil, criminal or administrative proceeding.
Standard 8.3: Pretrial diversion/intervention program guidelines should be developed for determining the
type of information to be contained in reports to be released to criminal justice agencies. Such reports should
be limited only to information which is veri#ed and necessary.
As would be expected, there is much reported appellate-level litigation on these various privacy issues.
Seven cases have been identi”ed that address challenges to the con”dentiality of diversion agreements
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 29
and counselors’ notes. Another four cases address whether a defendant who has successfully graduated
from diversion and had his or her charges dismissed can keep the fact of his prior diversion participation
con”dential. An additional 49 federal circuit and 13 state appellate cases have been handed down that
address whether admissions against interest made by a defendant during the course of a diversion
interview, or in a diversion agreement, can later be used against him in other (largely non-criminal)
Protections, when they can be enforced, are often embodied in interagency memoranda of understandings
and commitments. Beyond that, state statutes mandating (1) con”dentiality of statements made during
in-program conversations or diversion interviews; and (2) expungement or sealing of records upon
successful completion and ordering periodic purging of paper and online records can a$ord some
protection. However, these mandates do not apply once an arrest is posted openly on the Internet.
Certain state statutes, such as those in Kansas, Kentucky, and South Carolina, guarantee expungement
and other privacy protections to successful diversion program graduates. !e model programs included
here from these states use their program web sites to advise successful program graduates how to apply for
expungement. !e Kansas and South Carolina pretrial diversion programs post the necessary application
forms for download and completion.
Sta$ of the Eighteenth Judicial District of Wichita, Kansas pretrial diversion program are employed by
the prosecutor’s o#ce. Consequently, all counselors’ notes and discussions with diverted defendants are
considered part of the prosecutor’s working “les and are exempt from subpoena. !e Kenton County (KY)
Diversion Program periodically purges and destroys all manual and electronic pretrial diversion records of
participants who have completed the program.
Promising Practice #9: Independent program evaluations.
!e literature on evidence-based practices from community corrections, the problem-solving courts,
and pretrial services all stress the importance of deriving promising practices from empirical “ndings.
However, the pretrial diversion “eld has widely varying program models that make comparisons of
programs and “ndings from di$erent evaluations across programs di#cult.
From their inception in 1978, the NAPSA Diversion/Intervention Standards have stressed the
importance of commissioning independent program evaluations. !e 2008 Diversion/Intervention
Standards echo the earlier version in its emphasis of the value of independent evaluation.
According to results from the NAPSA survey, 87 percent of respondents maintained performance
measurement data. One-third of survey respondents had participated in a study of program recidivism and
28 percent had commissioned an independent program evaluation.
54 See Clark. (2008).
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 30
!e majority of the model diversion programs have commissioned one or more outside program
evaluations, although for most, these took place number of years ago. Operation de Novo is an example of
a pretrial diversion program with a recent independent evaluation (2003).
NAPSA’s research for this monograph also identi”ed practices that appear to help pretrial diversion
programs meet goals and objectives, but lack the empirical foundation needed to be termed “promising.”
However, these procedures have been demonstrated enough by hands-on experience within the “eld to be
of potential use to other criminal justice practitioners.
Emerging Practice #1: Written policies and procedures backed by a formal mission statement.
Clearly de”ned and articulated mission statement, goals, and objectives are the cornerstone of e$ective
organizations.55 NAPSA Standards encourage diversion programs to, “have a well articulated mission
statement as well as operational and program goals. !e mission statement and the goals should be clearly
conveyed to both sta$ and participants.”56 To reinforce these principles, high-performing agencies also
provide sta$ written policies and procedures that link on-the-job performance with visioning statements.
As NAPSA Diversion/Intervention Standard 9.2 notes:
A pretrial diversion/intervention program should be structured to accomplish its mission and stated
goals. Program administration should provide appropriate guidance and oversight in the development of
operational policies and procedures which support e!ective programming. . .
Several pretrial diversion programs apply these promising practices. !e NAPSA survey found that over
75 percent of respondents had mission statements and close to 85 percent had written program goals.
Nearly 90 percent of respondents have written policies and procedures. !e Allegheny County (PA) ARD,
Operation de Novo, the East Baton Rouge PTI program, the Monroe County (NY) pretrial diversion
program, and the Essex County (NJ) PTI are model pretrial diversion programs with articulated mission
statements, goals, and written procedures.
55 Shields, A.C. (2006). “How to Take Control of Your Practice by Creating Vision and Mission Statements,” GP/Solo Law Trends
and News, Business Law, Vol 2, No.2. Washington, D.C.: American Bar Association. Burkhart, P. L. and Reuss, S. (1993). “Successful
Strategic Planning: A Guide for Nonpro”t Agencies and Organizations.” Newbury Park, STATE: Sage Publications. Pointer, D. D.,
and Orliko$, J. E. (2002). “e high-performance board Principles of nonpro#t organization governance. San Francisco, CA: Jossey-Bass.
Allison, M. & Kaye, J. (1997). Strategic planning for nonpro#t organizations: A practical guide and workbook. New York, NY: John Wiley
and Sons, Inc. Bryson, J.M. (2004). Strategic planning for public and nonpro#t organizations: A guide to strengthening and sustaining
organizational achievement. New York, NY: Jossey-Bass Inc. Publishers, Inc.
56 NAPSA. (2008).
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 31
Emerging Practice #2: An automated management information system that supports internal performance
measurement and independent evaluation.
All high-performing organizations use information to set strategies, accomplish their mission and goals,
and identify trends and needs in resources, infrastructure, programs and services, and performance. Given
the scope and complexity of information gathered by criminal justice programs, the “eld is becoming
increasingly reliant on automated information systems to collect, process, store, and disseminate data in
forms necessary to satisfy management functions. Automated information systems help managers access
relevant and accurate information to better ensure accurate decision making.
NAPSA Diversion/Intervention Standards strongly endorse automated information systems. Standard
9.8 encourages pretrial diversion programs to “develop and operate an accurate management information
system to support data collection and presentation, compliance monitoring, case management, and
program evaluation. !e program should also develop and implement policies which address data
sharing and information protection.” Standard 9.7 advises programs to “develop and maintain a “nancial
management system that enables the program to account for all receipts and expenditures, to account for
the collection and the dispersal of restitution payments, to prepare and monitor its operating budget, and
to provide the “nancial information needed to support its operations and requests for funding to promote
Automated information systems are now commonplace in the pretrial diversion “eld. Seventy-three
percent of NAPSA survey respondents report having computerized information systems in place. Among
the model pretrial diversion programs, the Maricopa County (AZ) TASC Program, the San Francisco
Pretrial Diversion Program, and the Pretrial Services Corporation of the Monroe County (NY) Bar
Association’s pretrial diversion program developed in-house information systems con”gured to program
speci”cation. !ese systems are relational databases that allow sta$ to enter case reporting data and
counselors’ notes, track progress, and generate customized reports. Each system also allows program
managers to track important trend data such as recidivism rates. Pretrial diversion programs that are
part of larger organizations—such as the Allegheny County (PA) ARD, the Connecticut AR programs,
the Essex County (NJ) PTI Program, and the Kenton County (KY) Diversion Program—incorporate
diversion-related data requirements into the larger agency’s data system.
Emerging Practice #3: Auditing of external service providers
As mandated by NAPSA Diversion/Intervention Standards, “a pretrial diversion/intervention program
should develop, identify, and partner with treatment and other types of services in their community which
have demonstrated e$ectiveness and the ability to provide culturally competent and gender-speci”c
programming for participants.57” Many pretrial diversion programs refer certain outside treatment and
other social services to community-based providers. Seventy-seven percent of NAPSA diversion survey
57 NAPSA. (2008). Standard 5.5.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 32
respondents report using community-based providers. For most programs, referring out for services is
cost-e$ective and defers to quali”ed providers complex needs such as substance abuse treatment, mental
health services, and education and vocational services. However, pretrial diversion programs that refer out
for services retain the responsibility to ensure that providers serve clients professionally and competently
and provide timely feedback on client progress.
Several pretrial diversion programs monitor the quality and timeliness of such outside services.
Connecticut’s APR programs contract out all counseling, treatment, and supportive services to local
service providers. Service contractors must agree to regular reporting to APR programs and frequent
checks of compliance to contract technical requirements. Likewise, the Eighteenth Judicial District,
Wichita (KS) diversion program coordinators receive regular progress reports on services delivered
to program participants, and regularly visit local service providers to assess the quality of their service
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 33
Pretrial diversion today features an array of programs, more diverse than their predecessors in
administrative location and practice, yet still united by the goal of o$ering a viable alternative to people
whose criminal behavior can be addressed more e$ectively outside of traditional case processing. !ere are
more pretrial diversion programs today than ever before in more varied administrative locations, from the
traditional prosecutor’s o#ce to pretrial services agencies, probation departments, and private agencies.
Pretrial diversion programs range in organization from single nonpro”t agencies to state-supported
!e pretrial diversion concept has found increased legitimacy nationwide. Nearly all states have pretrial
diversion statutes, most either enacted or updated since 2000. !ese statutes are as diverse as pretrial
diversion programs themselves, from simple enabling legislation to full-blown prescriptive statewide
dictates. Statutes have given the legislature more control of pretrial diversion practices, a development
upheld by the courts. !ree major criminal justice associations have established or are developing
standards for pretrial diversion, further legitimizing the concept within the criminal justice “eld. Finally,
a signi”cant volume of case law on pretrial diversion re&ects the “eld’s continued relevance and growth.
Courts are now willing to review practices that once were viewed as strictly the domain of prosecutors,
especially concerns regarding participant due process.
Limits in budgets and sta#ng aside, pretrial diversion programs strive to o$er supervision, programs, and
services that respond appropriately to criminal behavior, address issues associated to continued criminality,
and help restore victims of crime. Urinalysis, restitution, community service, and counseling are common
supervision conditions. Further, over half of programs impose sanctions—particularly increases in
supervision requirements—to address participant noncompliance. Many programs are partners in
problem-solving initiatives such as drug courts and mental health diversion, and there are signi”cant
similarities in goals and structure between pretrial diversion and these initiatives.
!ough pretrial diversion programs and problem-solving initiatives often di$er in their histories,
sponsoring agencies, funding sources, and available resources, they share many practices and goals.
Whether relying on national standards, promising practices, or evidence-based practices, both attempt
to provide the least restrictive alternative to traditional case processing and case disposition. Both
recommend assessing individual defendant risks and needs and providing individualized responses to
a defendant’s speci”c issues. Both target the defendant’s underlying issues or behaviors and call for
measured responses to noncompliance. Both seek to enhance public safety and reduce recidivism through
e$ective and comprehensive responses.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 34
Challenges and Recommendations
!e research associated with this monograph is just the beginning. !e content of this document has
highlighted pretrial diversion programming and its place and worth within the criminal justice system it
serves. With resources at a premium, communities have to be intelligent about how they address criminal
justice needs. Pretrial diversion programming o$ers an e$ective option within an array of thoughtful
responses that local criminal justice systems should o$er as a way to e#ciently use limited resources
and address the needs and risks that are posed by those entering the system. Within the context of a
community problem-solving approach, pretrial diversion provides a short term focused intervention which
preserves court and jail time while e$ectively intervening with a criminal justice population.
Continued research and evaluation: !e biggest challenge to pretrial diversion programs and criminal justice
planners is the lack of strong research in the “eld. It is the recommendation of the authors that the “eld
focus on obtaining “nding for individual program evaluations as well to work toward funding a national,
multisite study to look at the pretrial diversion model and its e$ectiveness. One accomplishment of such a
broad-based study would be to examine the nature of the relationship and potential for synergy with the
problem-solving court model. !e bene”ts of such a study would be enumerable and provide an evidencebased
foundation for communities to make decisions about utilizing a more comprehensive model to
respond to the people who are entering their criminal justice system.
NAPSA’s survey of pretrial diversion programs o$ers valuable information about practices in the “eld;
however its “ndings are limited by the relatively small number of programs responding. Given the number
of pretrial diversion programs identi”ed by the research for this monograph and the dynamic nature of
the “eld, a more comprehensive survey should be launched to identify existing diversion programs. !is
should be done with adequate resources, reaching out to prosecutor’s o#ces, probation departments and
courts, with emphasis on program practices and interventions that are considered successful.
Collaboration with problem-solving initiatives: Where they co-exist, pretrial diversion programs and
problem-solving initiatives should cooperate to provide the most e$ective and fair alternative responses
to appropriate defendants. !e responsible agencies should work collaboratively with criminal justice
decision makers to establish eligibility criteria that target their respective services and resources to achieve
positive outcomes for the system and the defendant.
Partnerships with pretrial release programs: !ere are an estimated 500 pretrial release programs operating
in at least 37 states, the District of Columbia, and the Commonwealth of Puerto Rico.58 Nearly all of
these programs gather and verify information about arrestees—including criminal history, current status in
58 Clark, J. and Henry, D.A. (2003). Pretrial Services Programming at the Start of the 21st Century: A Survey of Pretrial Services
Programs. Washington, D.C.: U.S. Department of Justice, Bureau of Justice Assistance, NCJ 199773.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 35
the criminal justice system, address, employment, and drug and alcohol use history—that judicial o#cers
use in making release/detention decisions.59 According to the NAPSA survey, pretrial release agencies also
are the most common administrative location for pretrial diversion programs. Given the services these
programs provide and their relationship to pretrial diversion programs, criminal justice systems should
consider utilizing pretrial release programs to identify, screen, and refer defendants at arrest or initial
appearance to appropriate pretrial diversion programs and problem-solving initiatives.
Systems also should consider if a uni”ed pretrial services agency model that combines release and
diversion services under one roof can o$er a jurisdiction su#cient programming and budgetary
Nearly half a century since they appeared in the nation’s criminal justice systems, pretrial diversion
programs continue to be successful alternatives for eligible defendants. As practitioners study and apply
innovative methods of “doing business” with persons in the criminal justice system, pretrial diversion
programming continues to o$er tested and practical strategies for appropriate defendants. Introducing
pretrial diversion programming into other innovative strategies will help e$orts nationally and locally in
decreasing crime and increasing the public’s trust in the justice system.
59 Ibid at p. 1.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 36
APPENDIX A: SELECTED PRETRIAL DIVERSION PROGRAMS
To help identify promising practices within the “eld, the NAPSA Diversion Committee’s Best Practices
Working Group (Working Group) and the monograph contractor, Willow Spring Consultants, Inc.
(WSC), sought to identify and select pretrial diversion programs that met criteria believed to encourage
development and use of best practices. !ese included:
1. Program longevity, on the premise that long-lived, successful programs are more likely to develop and
implement promising practices.
2. Independent program evaluations that would have identi”ed successful program functions and those
needing revision or not contributing to program goals and objectives.
3. Charge scope—the number and type of o$enses the program managed—assuming that programs
with more varied defendant and case populations are more likely to consider and evaluate more varied
approaches to supervision and service provision.
To help ensure the greatest diversity in program consideration, the contractor and Working Group
considered programs from a wide range of administrative locations—prosecutor’s o#ces, pretrial
probation, private non-pro”t organizations, probation departments, and statewide associations—and
!e Working Group convened in August 2008 to review a list of potential “model” programs prepared
by the monograph contractor. Several candidate programs had strong reputations as model agencies. !e
Citizens’ Probation Authority, the nation’s “rst formal diversion program, served as a regional model
for many other mid-western deferred prosecution programs. !e East Baton Rouge, LA, Minneapolis,
MN, Newark, NJ, and Columbia, SC programs served as pilots in their respective states for later
programs. !e New Jersey and South Carolina programs were also instrumental in creating statewide
pretrial diversion programming. !e Pretrial Services Corporation of the Monroe County (NY) Bar
Association’s pretrial diversion program was the subject of the “rst modern diversion program evaluation
in 1978, while Operation de Novo commissioned and participated in one of the most recent evaluations
in 2003. Maricopa County (AZ) TASC was the “rst such program in the state and a recognized leader
in providing treatment services for defendants and o$enders. !e Miami-Dade County Drug Court
Program was the “rst in the nation, the subject of a very positive program evaluation, and a continuing
model for over 2,000 other Drug Court programs. !e New York City Drug Treatment Alternatives to
Prison (DTAP) Program likewise served as a model for numerous other prosecutor-based drug diversion
programs in New York State.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 37
Maricopa County TASC Drug Diversion Program
2234 N 7th St.
Phoenix, AZ 85006
San Francisco Pretrial Diversion Project, Inc.
567 Seventh St.
San Francisco, CA 94103
Fax: (415) 626-3871
Accelerated Pretrial Rehabilitation Program
936 Silas Deane Highway
Wethers”eld, CT 06019
Fax: (860) 258-8756
Miami Dade County Drug Court Program
Richard E. Gerstein Justice Building
1351 NW 12 St.
Miami, FL 33125
Fax: (305) 548-5105
Adult Diversion Program
O#ce of the District Attorney, 535 N. Main
Wichita, Kansas 67203
(316) 660-3663 or 1-800-432-6878
Fax: (316) 383-4669
Kenton County Pretrial Services Diversion
Kenton County Justice Center
230 Madision Avenue, Room 229
Covington, KY 41011
Fax (859) 292-6631
Citizen’s Probation Authority
Genesee County Pretrial Services
630 South Saginaw St.
Flint, MI 48502
East Baton Rouge Parrish Attorney’s
Pretrial Diversion Program
City of East Baton Rouge
Parish of East Baton Rouge
P.O. Box 1471
East Baton Rouge, LA 70821
Operation de Novo, Inc.
800 Washington Avenue North, Suite 610
Minneapolis, Minnesota 55401
Essex County PTI Program
50 West Market St., Room 912
Newark, NJ 07102
!e group then pared this list down to a group of “nal model programs:
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 38
Pre-Trial Services Corporation of the Monroe
County (NY) Bar Association
80 West Main Street Suite 200
Rochester, New York 14614
Summit County Prosecutor’s Diversion Program
Oriana House, P.O. Box 1501
Akron, Ohio 44309
(330) 535-8116, ext. 2759
Multomah County District Attorney’s O#ce
1120 SW 3rd Ave.
Portland, OR 97204
Allegheny County Pretrial Services (ARD)
564 Forbes Ave. 4th &oor
Pittsburgh, PA 15219
Circuit Solicitor’s Pretrial Intervention
1701 Main Street, Room 406-B PO Box 192
Columbia, South Carolina 29202
Fax: (803) 576-1866
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 39
Administrative O#ce of Pennsylvania Courts. (2008). 2007 Caseload Statistics of the Uni#ed Judicial System
of Pennsylvania. Philadelphia, PA: Supreme Court of Pennsylvania.
Allison, M. & Kaye, J. (1997). Strategic planning for nonpro#t organizations: A practical guide and workbook.
New York, NY: John Wiley and Sons, Inc.
American Bar Association. (1993). ABA Standards for Criminal Justice: Prosecution and Defense Function
(3rd Edition). Standard 3-3.8. p. 69. Washington, D.C.: American Bar Association.
Anglin, M. D., Longshore, D., and Turner, S. (1999). “Treatment Alternatives to Street Crime (TASC):
An Evaluation of Five Programs.” In Criminal Justice & Behavior, Vol. 26, Issue 2, at pp. 168-195.
Bellassai, J.P. (1978). “Pretrial Diversion: !e First Decade in Retrospect,” Pretrial Services Annual Journal
pp. 13-16. Washington, D.C.: Pretrial Services Resource Center.
Bellassai, J.P. A Short History of the Pretrial Diversion of Adult Defendants from Traditional Criminal Justice
Bonta, J., and Hanson, R. (1995). Violent recidivism of men released from prison. Paper presented at the
103rd Annual Convention of the American Psychological Association, August 11, New York, NY.
Bonta, J., Wallace-Capretta, S., and Rooney, J. (2000). “Quasi-Experimental Evaluation of an Intensive
Rehabilitation Supervision Program.” Criminal Justice and Behavior, Volume:27, Issue: 3, pp. 312-329.
Brizer, D. (1989). “Introduction: Overview of current approaches to the prediction of violence.” In D.
Brizer & M. Crowner (Eds.), Current approaches to the prediction of violence. Washington, D.C.: American
Psychiatric Press, Inc.
Bryson, J.M. (2004). Strategic planning for public and nonpro#t organizations: A guide to strengthening and
sustaining organizational achievement. New York, NY: Jossey-Bass Inc. Publishers, Inc.
Burke, C. and Pennelll, S. (2001). What Works: San Diego County’s Breaking Cycles Program. San Diego, CA:
San Diego Association of Governments (SANDAG), Criminal Justice Research Division.
Burkhart, P. L. and Reuss, S. (1993). Successful Strategic Planning: A Guide for Nonpro#t Agencies and
Organizations. Newbury Park: Sage Publications.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 40
Clark, J. (2007). “e Role of Traditional Pretrial Diversion in the Age of Specialty Treatment Courts:
Expanding the Range of Problem-Solving Options at the Pretrial Stage. Washington, D.C.: Pretrial Justice
Pretrial Justice Institute. (2008). Pretrial Diversion and the Law: A Sampling of Four Decades of Appellate
Court Rulings. Washington, D.C.: Pretrial Justice Institute.
Clark, J. and Henry, D.A. (2003). Pretrial Services Programming at the Start of the 21st Century: A Survey
of Pretrial Services Programs. Washington, D.C.: U.S. Department of Justice, Bureau of Justice Assistance,
Cormier, R. B. (1997). “Yes, SIR! A stable risk prediction tool.” Forum on Corrections Research, 9(1):, 3-7.
Crime and Justice Institute. (2004). Implementing Evidence Based Practice in Community Corrections: “e
Principles of E!ective Intervention. Washington, D.C.: National Institute of Corrections.
Gottfredson, S. (1987). “Prediction: An overview of selected methodological issues.” In D. Gottfredson &
M. Tonry (Eds.), Prediction and Classi#cation (pp. 21-51). Chicago: University of Chicago Press.
Henry, D. A. and Kennedy, S. (1997). Evaluating the Merrimack County Adult Diversion Program: Process
and Outcome Evaluation. Washington, D.C.: Pretrial Services Resource Center.
Harrell, A., Hirst, A., Mitchell, O., Marlowe, D., Merrill, J. (2001). Evaluation of the Breaking the Cycle
Demonstration in Birmingham, Alabama: Final Report. Washington, D.C.: !e Urban Institute.
Harrell, A. and Roman, J. (2001). “Reducing Drug Use and Crime Among O$enders: !e Impact of
Graduated Sanctions.” Journal of Drug Issues, Volume: 31%Issue:1 pp. 207-232.
Howe, E. (1994). “Judged person dangerousness as weighted averaging.” Journal of Applied Social
Psychology, 24(14), 1270-1290.
Kentucky Department of Public Advocacy. (2009). “e Advocate, Volume 31, No. 1.
Kirby, M., Pryor D.E. (1982). Practices of Pretrial Diversion Programs: Review and Analysis, Washington,
DC: Pretrial Services Resource Center, NCJ 121909.
Lattimore, P.K., Broner, N., Sherman, R., Frisman, L., and Shafer, M.S. (2003). “Comparison of
Prebooking and Postbooking Diversion Programs for Mentally Ill Substance-Using Individuals with
Justice Involvement,” Journal of Contemporary Criminal Justice%Volume:19%Issue:1.
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 41
Leroy, B. (1991). The Community of Twelve and the Drug Demand. Comparative Study of Legislations and
Judicial Practice. Luxembourg: Commission of the European Community.
Litwack, T., Kirschner, S., and Wack, R. 1993). “!e assessment of dangerousness and predictions of
violence: Recent research and future prospects,” Psychiatric Quarterly, 64(3), 245-271.
Madras, B.K., Compton, W.M., Avula, D., Stegbauer, T., Stein, J. B., and Clark, H.W. (2009). “Screening,
brief interventions, referral to treatment (SBIRT) for illicit drug and alcohol use at multiple healthcare
sites: Comparison at intake and 6 months later,” Drug and Alcohol Dependence, Volume 99, Issues 1-3. pp.
Marlowe, D.B. and Kirby, K.C. (1999). “E$ective Use of Sanctions in Drug Courts: Lessons From
Behavioral Research,” National Drug Court Institute Review,%Volume:2%%Issue:1. pp. 1-31.
Mitchell, O. and Harrell, A. (2006). “Evaluation of the Breaking the Cycle Demonstration Project:
Jacksonville, FL and Tacoma, WA,” Journal of Drug Issues, Volume:36%Issue:1. pp. 97-118.
Mullen, J. (2007). “Pretrial Diversion – Its Impact on Recidivism.” Crime and Punishment in America 3:
Mullen, J. (2007). “Pretrial Diversion – Results of Drug Treatment, Employment and Social Services.”
Crime and Punishment in America 3: 1727-28, http://law.jrank.org/pages/1727/Pretrial-Diversion-Resultsdrug-
Munertz M.D., Mark R., and Gri#n, P.A. (2006). “Use of the Sequential Intercept Model as an
Approach to Decriminalization of People with Serious Mental Illness.” Psychiatric Services, Volume:57
Issue: 4. p. 544.
National Advisory Commission on Criminal Justice Standards and Goals. (1973). Report on Corrections.
Standard 3.1, pp. 73-97. Washington, D.C.: U.S. Government Printing O#ce.
National Association of Drug Court Professionals, Standards Committee. (1997 and 2004). De#ning Drug
Courts: “e Key Components. Washington, D.C.: U.S. Department of Justice, Bureau of Justice Assistance.
National Association of Pretrial Services Agencies. (2008). Performance Standards and Goals for Pretrial
Bureau of Justice Assistance. Forthcoming. Pretrial Diversion in the 21st Century: A National Survey of
Pretrial Diversion Programs and Practices. Washington, D.C.: U.S. Department of Justice, Bureau of Justice
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 42
National District Attorney’s Association. (1977). National Prosecution Standards. 44.1-44.8. Diversion
(Arlington, VA: National District Attorneys Association).
National District Attorney’s Association (1991). National Prosecution Standards, 44.5 (e). Alexandria, VA:
National District Attorney’s Association.
New Jersey Administrative O#ce of the Courts. (2008). “Fallout Rates: !e Number and Percentage
of Criminal Defendants Terminated From Referral of the Complaint to the Prosecutor !rough
Adjudication,” AOC Monthly Report, July 2007- June 2008. Trenton, NJ: New Jersey Administrative O#ce
of the Courts.
Payne, J. (2007). “Discrete-Time Survival Study of Drug Use and Property O$ending: Implications for Early
Intervention and Treatment.” Australian Institute of Criminology Technical and Background Paper, No. 24.
Perlstein, J.J. and Henry, D.A.. (1986). Implications of E!ective Case Processing for Crowded Jails – A Manual
for Prosecutors. Washington, D.C.: U.S. Department of Justice National Institute of Justice. NCJ 099464.
Pointer, D. D., and Orliko$, J. E. (2002). “e high-performance board Principles of nonpro#t organization
governance. San Francisco, CA:., Jossey-Bass.
Porter, L., Arif, A.E. & Curran, W.J. (1986), “e Law and the Treatment of Drug- and Alcohol-dependent
Persons: A Comparative Study of Existing Legislation. Geneva: World Health Organization.
!e President’s Commission On Law Enforcement and Administration of Justice. (1967). “e Challenge of
Crime in a Free Society. Washington, D.C.: U.S. General Printing O#ce.
Rempel, M. and Depies Destefano, C.D. (2001). “Predictors of Engagement in Court-Mandated
Treatment: Findings at the Brooklyn Treatment Court, 1996-2000.” Drug Courts In Operation: Current
Research. pp. 91-93.
San Diego Association of Governments (SANDAG) Criminal Justice Research Division. (1995).
Supervising Drug-Involved O!enders in the Community: An Integrated Approach. San Diego, CA: San Diego
Association of Governments.
Schillo, B., Erickson, B., and Schauben, L. (2003). Review of Operation DeNovo’s Adult Diversion Program:
Clients Who Entered the Program in 2001. Minneapolis, MN: Council on Crime and Justice.
Shields, A.C. (2006). “How to Take Control of Your Practice by Creating Vision and Mission
Statements,” GP/Solo Law Trends and News, Business Law 2(2). (American Bar Association, GP/Solo Law
Trends and News, Business Law, Volume:2 Issue:2).
PROMISING PRACTICES IN PRETRIAL DIVERSION • PAGE 43
Skeem, J.L. and Manchak, S. (2008). “Back to the Future: From Klockars’ Model of E$ective Supervision
to Evidence-Based Practice in Probation.” Journal of O!ender Rehabilitation, Volume:47 Issue:3, pp. 220-
Steyn, F. (2005). Review of South African Innovations in Diversion and Reintegration of At-risk Youth. Open
Society Foundation for South Africa.
Van Nostrand, M. (2007). Legal and Evidence Based Practices: Application of Legal Principles, Laws and
Research. Washington, D.C.: National Institute of Corrections.
Young, W. and Cameron, N. (1991). Adult Pre-trial Diversion in New Zealand. Wellington: Young &
Cameron Policy & Research Consultants.
Wolfe, R. (2007). Expanding the Use of Problem Solving. Washington, D.C.: Center for Court Innovation.
Clayton v. Lacy, 589 N.W. 2d 529 (Nebraska, 1999).
Cleveland v. State, 417 So. 2d 653 (Florida, 1982).
Griswold v. Connecticut, 381 U.S. 479 (1965).
Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
State v. Leonardis, 363 A.sd 321 (1976).
State v. Hemmersly, 650 S.W.2d 352 (Tennessee, 1983).