“Diversion” refers to a host of programs that help divert a criminal case from the criminal justice system. An example is a state’s drug diversion program where a defendant is given the opportunity to complete substance abuse classes in lieu of being charged with a crime.
Diversion programs are available in most states and at the federal level.
If you successfully complete a diversion program, then most jurisdictions will dismiss your criminal charges and you will avoid:
- a criminal conviction,
- possible jail time, and
- a criminal record.
But if you fail to complete the program, you will be prosecuted for the crime you allegedly committed and the case will proceed as if the diversion program never existed.
Note that diversion is usually only offered to low-level offenders, or those people without a criminal record who are suspected of committing non-violent misdemeanor offenses.
Most states offer diversion programs in an attempt to:
- remove criminal cases from overloaded court dockets,
- help with overcrowded jails and prisons, and
- allow you to avoid the harsh consequences associated with a criminal conviction.
1. What are diversion programs?
Diversion programs allow eligible defendants to avoid the criminal court process and court system by completing a program designed to remedy the issue which caused or led to an original arrest (for example, a drug, alcohol, or anger issue).
Diversion programs are often referred to as
- pretrial diversion programs or
- pretrial intervention programs.
As noted above, “drug diversion” is one example of a diversion program.1 A second example involves mental health diversion programs where offenders with a mental illness can avoid charges of a criminal offense by entering a mental health treatment program for a set period of time.2
Further, most forms of diversion include one or more of the following:
- educational classes,
- counseling,
- rehab,
- support groups,
- anger management therapy,
- community service,
- restitution payments,
- restraining orders (typically in domestic violence cases),
- curfews,
- mental illness programs, and
- veteran programs.
2. How do diversion programs work?
If you successfully complete your diversion program, then the prosecutor or the court will typically dismiss your criminal charges.3
The result is that there is no conviction on your record or criminal history. Also, this all happens “pre-prosecution,” which means that you can do diversion without having to enter a plea – whether that plea is
- a guilty plea, a
- no-contest plea, or
- a plea of not guilty.
But if you fail to complete a diversion program, the criminal laws of most states say that your criminal case will then move forward as if the diversion program never existed.4 This means you will be charged with the crime you allegedly committed and may face the possibility of a:
- guilty plea,
- criminal conviction,
- jail time, and
- criminal record.
3. What are the eligibility requirements?
Most jurisdictions say that diversion is only available for
- first-time offenders
- suspected of committing non-violent misdemeanor offenses.5
Please also note that entry in a diversion program may be contingent on approval from the
- alleged victim,
- prosecutor, and/or
- judge.6
If you are facing criminal charges, you should speak with a criminal defense attorney to learn whether you meet the eligibility criteria for diversion in your state.
Most criminal defense lawyers and law firms offer free consultations, which means you can learn about eligibility requirements at no cost.
4. What is the purpose behind diversion?
There are several goals and purposes associated with misdemeanor diversion programs. For example, various types of diversion attempt to:
- remove minimal-risk cases from overcrowded court dockets,
- reduce the problem of jail and prison overcrowding,
- help people avoid the negative results of a criminal conviction,
- reduce recidivism, and
- help offenders address the underlying issues that may have caused their criminal behavior.
5. Do diversion programs work?
This issue is often debated. Many studies say that diversion programs are effective in achieving the goals they intend to accomplish.7
But other studies do suggest that diversion models may not effectively meet their intended purposes. For example, one recent study looked at over 20 other prior studies on diversion efforts, as to offenders with mental health issues. The review revealed little evidence of the effectiveness of jail diversion in reducing recidivism among persons with serious mental illness.8
The review also suggested that state programs should more closely follow the guidance of experts who are educated and trained on the specific issues underlying a diversion program (for example, experts on substance abuse or mental health illness). According to the study, better communication with these individuals would help avoid states ordering inadequate treatment or misapplied treatment.9
Additional resources
If you are struggling with substance abuse addiction, you can find help here:
- Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
- Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
- Recovery Centers of America – Treatment centers in seven states.
- SMART Recovery – Group therapy for young people struggling with addiction.
- Partnership to End Addiction – Information on how to find drug addiction treatment.
Legal References:
- See California Penal Code 1000 PC.
- See, for example, “Jail Diversion for Individuals with Mental Illness (post-arrest),” Washington State Institute for Public Policy.
- See, for example, Nevada Assembly Bill 470 (2017).
- See same.
- See, for example, Florida statutes 948.08 (2021).
- See same.
- See, for example, Erica McWhorter and David LaBahn, “Confronting the Elephants in the Courtroom Through Prosecutor Led Diversion Efforts,” Albany Law Review (2016).
- See, for example, Frank Sirotich, “The Criminal Justice Outcomes of Jail Diversion Programs for Persons With Mental Illness: A Review of the Evidence,” The Journal of the American Academy of Physiatry and the Law.
- See same. See also Boccaccini MT, Christy A, Poythress N, et al, “Rediversion in two postbooking jail diversion programs in Florida.” Psychiatr Serv 56:835–9, 2005.
