Diversion in the Criminal Justice Reform Package

Preventing people from entering the criminal justice system is the best way to minimize the costs and harms of prosecution.

Our criminal justice reform package expands possibilities for diversion from prosecution, while at the same time assuring that serious cases are not inappropriately diverted.

In some forms of diversion, prosecution is held in abeyance pending the completion of a treatment program. The legislature may need to help in some jurisdictions to assure the availability of appropriate treatment options.

Police Diversion

Police officers routinely exercise discretion in deciding whether to actually prosecute minor crimes or to simply warn someone, urge them to move along or transport them to a treatment facility. Street diversion to treatment is a particularly important tool in mental health and substance abuse cases. The package pilots a mental health diversion project in Middlesex County:

There shall be a restoration center commission in the former county of Middlesex to plan and implement a county restoration center and program to divert persons suffering from mental illness or substance use disorder who interact with law enforcement or the court system during a pre-arrest investigation or the pre-adjudication process from lock-up facilities and hospital emergency departments to appropriate treatment.

A closely related concept is de-escalation in street encounters and the package requires the development of an in-service training program for de-escalation techniques.

District Attorney Diversion and Restorative Justice

District Attorneys have the inherent power to decide not to go forward with a complaint brought by the police. Many district attorneys already have formal diversion programs where they provide some kind of treatment or community response to crimes — for example, the Cape DA, the Essex DA, the Hampden DA, the Middlesex DA, the Northwestern DA, the Plymouth DA, the Suffolk DA, and the Worcester DA. Our package preserves the integrity of those programs, stating that judges cannot divert people into programs that a district attorney operates over the objection of the DA.

Our package goes further in mandating that all district attorneys develop diversion programs for veterans and for people with mental illness or substance abuse disorders.

The district attorneys shall, within their respective districts, establish a pre-arraignment diversion program which may be used to divert a veteran or person who is in active service in the armed forces, a person with a substance use disorder or a person with mental illness if such veteran or person is charged with an offense or offenses against the commonwealth.

Additionally, the package supports the expansion of restorative justice programs.

“Restorative justice” [is] a voluntary process whereby offenders, victims and members of the community collectively identify and address harms, needs and obligations resulting from an offense, in order to understand the impact of that offense; provided, however, that an offender shall accept responsibility for their actions and the process shall support the offender as the offender makes reparation to the victim or to the community in which the harm occurred.

The mutual nature of the restorative justice process makes it essential that it be entered only with the consent of the victim and the district attorney. The package provides that:

A juvenile or adult defendant may be diverted to a community-based restorative justice program pre-arraignment or at any stage of a case with the consent of the district attorney and the victim.

Judicial Diversion

Judges do not have the inherent power to divert cases brought by the prosecution. However, the legislature can, by statute, grant them that power within defined contexts. For more legal discussion, see The Boston Municipal Court and District Court Sentencing Bench Book (2016) §1.A(1). The reform package expands the availability of judicial diversion in several ways.

General Juvenile Diversion

Under existing law, there was no explicit mechanism for judicial diversion of juveniles from prosecution. The reform adds a juvenile diversion mechanism modeled on the adult mechanism in Chapter 276A. We felt it was necessary to draft a new mechanism because the procedural details are necessarily different for juveniles and also because we wanted to provide some additional confidentiality protections for juveniles. However, the mechanism includes the same basic elements as the adult mechanism:

• A possible continuance to allow an assessment prior to arraignment;
• A possible diversion to a program;
• A possible dismissal upon successful completion of the program without ever having been arraigned.
• Limitation to less serious offenses.

The new judicial diversion option for juveniles does not replace or limit the existing authority of District Attorneys to divert juvenile cases.

General Adult Diversion

Chapter 276A provides a general procedure for judicial diversion of a defendant to a “program” in district court. It does not apply in superior court. We make several significant changes to Chapter 276A, which together should expand the use of diversion, but only in appropriate cases.

We removed age restrictions on eligibility for diversion. Previously, district court diversion was limited to young adults aged 18 to 22.

We moved approval of diversion programs to the local level. Previously, a court could divert only to a program approved by the Commissioner of Probation pursuant to a formal process. This process was too cumbersome and Commissioner of Probation never certified any programs. As a result, 276A diversion was very rarely used. Although true outcome measures are scarce, the local court officials have day-to-day to exposure to the programs near them, so eliminating the formal program certification requirement makes sense.

Under section two of the existing law, eligibility is intended for first offenders (and this aspect is unchanged). However, existing law also includes language which could be read to allow diversion for an offender with a record.

The judge may, in his discretion, grant a defendant who is preliminarily determined not to be eligible because of a failure to satisfy all the requirements of section two, a like fourteen-day continuance for assessment. In arriving at such a decision the opinion of the prosecution should be taken into consideration. Such a continuance may be granted upon the judge’s own initiative or upon request by the defendant.

The availability of an assessment for a defendant with a more serious record might or might not allow actual diversion. We did not resolve this existing unclarity, but we limited the possibility of district court diversion to relatively minor offenses and made clear that district court diversion would not bar subsequent superior court indictment by the district attorney. We also made clear that diversion cannot be used to circumvent mandatory minimums:

In the event that an individual is charged with a violation of 1 or more of the offenses enumerated in the second sentence of section 70C of chapter 277 [which we also modified] other than the offenses in subsection (a) of section 13A of chapter 265 and sections 13A and 13C of chapter 268, or if the defendant is charged with an offense for which a penalty of incarceration greater than five years may be imposed or for which there is minimum term penalty of incarceration or which may not be continued without a finding or placed on file, this chapter shall not apply to that defendant. Diversion of a district court charges under this chapter shall not preclude a subsequent indictment on the same charges in superior court.

Among the common offenses that remain eligible for diversion are simple assault and battery and many property offenses, including felony larceny. Other than simple assault and battery, all offenses against the person are excluded from diversion.

We also made clear that if a victim is involved and a judge is considering diversion, the judge should hear from the victim.

Chapter 111E Drug Diversion

Chapter 111E, Section 10 provides for a procedure whereby a person charged with a drug offense can seek to be found dependent and diverted to treatment. If the person successfully completes treatment, their case will be dismissed. That dismissal is mandatory for a dependent first offender who completes treatment. Section 10 is cumbersome and explicitly does not apply to people charged with dealing offenses. Section 10 is infrequently used because, without the need for formal findings, most prosecutors and judges can and do show leniency to people with limited records who are charged with mere possession offenses.

Our only change to Section 10 is to make it slightly more useful by allowing more categories of professionals to make the finding of dependency — currently the law requires that finding be made by a physician but physicians are not readily available in most courtrooms. We make the same change to Section 11, the section which allows a court to order that a correctional facility to which a dependent person is sentenced provide treatment to the person, and to Section 13 pertaining to treatment for juveniles committed to DYS.

Veteran’s Diversion

Chapter 276A provides a special mechanism for diversion of veterans which is not limited by age or offense as is the existing general adult diversion mechanism.  Section 10 provides that:

 . . . The district courts, and in Boston, the municipal court of the city of Boston, shall have jurisdiction to divert to a program any person who is a veteran, as defined in said clause Forty-third of said section 7 of said chapter 4, on active service in the armed forces of the United States, as defined in said clause Forty-third of said section 7 of said chapter 4, or who has history of military service in the armed forces of the United States who is charged with an offense against the commonwealth for which a term of imprisonment may be imposed, regardless of age, who has not previously been convicted of a violation of any law of the commonwealth . . .

This law has been controversial in its breadth, which appears to allow the diversion of very serious offenses against victims.

Our new limitations on the availability of Chapter 276A diversion do fix the overbreadth of veteran’s diversion, because by their terms they apply to the whole chapter.  However, those limitations may bar some cases which might be appropriate for diversion for veterans.   There is a rewrite of veteran’s diversion that is currently under consideration as part of the “Brave Act”. The proposed new mechanism for limiting veteran’s diversion would not be offense-based, but instead would depend on whether the prosecutor seeks a dangerousness hearing.

Special Considerations for Primary Caretakers

Incarceration of parents, while sometimes necessary, often harms children. Our reform package includes provisions to require judges to recognize and consider the defendant primary caretaker role at the time of sentencing and to consider alternatives to incarceration.

Unless a sentence of incarceration is required by law, the court may, upon conviction, consider the defendant’s status as a primary caretaker of a dependent child before imposing a sentence. A defendant may request such consideration, by motion supported by an affidavit, not more than 10 days after the entry of judgment. Upon receipt of such a motion supported by an affidavit, the court shall make written findings concerning the defendant’s status as a primary caretaker of a dependent child and alternatives to incarceration. If such a motion has been filed, the court shall not impose a sentence of incarceration without first making such written findings.

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