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Prosecutor-LedDiversionA National SurveyBy Michela Lowry and Ashmini Kerodal

Prosecutor-Led Diversion: A National SurveyBy Michela Lowry and Ashmini Kerodal March 2019Center for Court Innovation520 Eighth Avenue, 18th FloorNew York, New York

AcknowledgementsThis project was supported by grant number 2015-DM-BX-K005, awarded to theAssociation of Prosecuting Attorneys by the Bureau of Justice Assistance of the U.S.Department of Justice. The Center for Court Innovation partnered with the Association ofProsecuting Attorneys to complete the survey component of the Prosecutor-Led DiversionInitiative described herein.We would like to thank Bryan Duff from NORC at the University of Chicago for overseeingdata collection and Robert Hood at the Association of Prosecuting Attorneys for his work onthis project.At the Center for Court Innovation, we would like to thank Mike Rempel for advising earlyon in the project, and Jennifer Tallon, Amanda Cissner, and Rachel Swaner for their edits onan earlier draft of this report. We’d also like to thank former staff member Melissa Labriolafor helping to design the survey instrument.This project would not have been possible without the insight and time of the representativesof various prosecutors’ offices throughout the country who responded to the survey. Wethank them for their contribution to the study.The opinions, findings, and conclusions or recommendations expressed in this publicationare those of the authors and do not necessarily reflect the positions or policies of the U.S.Department of Justice. For correspondence, please contact Michela ii

Table of ContentsAcknowledgementsExecutive SummaryiiivChapter 1.Introduction & Methodology6About the Current StudyMethodology78Chapter 2.Program Structure & Goals12Program StructureTarget PopulationProgram Goals131315Chapter 3.Program Participation16Screening & AssessmentProgram LengthProgram RequirementsSupervisionProgram Completion1617172021Chapter 4.Study Conclusions23References24Appendix A. Survey Instrument26Table of Contentsiii

Executive SummaryDiversion programs offer the prospect of “off-ramping” suitable cases early in the courtprocess, potentially alleviating the strain on overburdened criminal justice agencies andresulting in increased case processing efficiency, reduced court backlogs, and betterdecision-making by court players. The purpose of the current study was to learn more aboutthe range of prosecutor-led diversion programs nationwide and to provide a detailed portraitof their goals, target populations, and policies.Funded through the Bureau of Justice Assistance’s Prosecutor-Led Diversion Initiative andin collaboration with the Association of Prosecuting Attorneys and NORC at the Universityof Chicago, the Center for Court Innovation developed and administered a survey to anational sample of 800 prosecutors’ offices. The results contribute to a broaderunderstanding of how prosecutors’ offices across the country are implementing diversionprograms.Key FindingsProgram Structure and Eligibility Fifty-five percent of the 220 responding prosecutors’offices reported that their agency offered some type of diversion program. Of the 121 sitesreporting diversion programming, a majority limited participation to adults (74%), were postfiling only models (53%), and had some type of charge type restrictions (52%).Program Goals Overall, the four most important diversion goals according to respondentswere: hold participants accountable for their criminal behavior; reduce participantrecidivism; rehabilitate participants by treating underlying problems; and use resources moreefficiently.Program Participation Screening and Assessment Sixty-nine percent of programs used some sort ofassessment to screen participants; assessments were primarily used to determine programeligibility, but also informed service provision and supervision intensity. Program Length Half of programs (52%) lasted ten months or more.Executive Summaryiv

Program Requirements Across both urban and rural counties, the most commonlyavailable mandates and services were community service (77%), substance abuseeducation (69%), substance abuse treatment (59%), and individual therapy (42%). Morethan half of both diversion programs required restitution and/or fines and fees in all cases. Participant Understanding The majority of programs reported taking measures toensure participant understanding of program requirements—for instance, by distributingwritten program materials to participants (69% of programs) and making the legalramifications of program completion (88%) and failure (92%) clear from the outset. Supervision Fewer than half (44%) of programs universally required participants tomeet with case managers or probation officers; supervision through regular courtappearances and/or drug testing were less common. Result of Program Completion Successful program completion most commonlyresulted in dismissal of charges or no charges filed. Result of Program Failure Unsuccessful program termination most commonlyresulted in a conviction and probation sentence.Executive Summaryv

Chapter 1Introduction & MethodologyAs jurisdictions around the country struggle with the realities of our modern justice system—staggering caseloads of more than 100 million criminal cases per year nationwide(LaFountain et al. 2010; National Association of Pretrial Services Agencies 2010); tighteningstate and local budgets for the courts, prosecutors, and corrections (e.g., Byrne 2012); andgrowing support for evidence-based policies towards crime and delinquency (e.g., Andrewsand Bonta 2010; Lutze et al. 2012)—diversion programs have emerged as a prudent andappealing option.Some prosecutors are creating innovative responses to crime, particularly in the developmentand oversight of pretrial diversion programs. Prosecutor-led pretrial diversion programs takemany forms (Rempel et al. 2018). They encompass pre-filing (before the prosecutor’s officeformally files charges) and post-filing/pre-adjudication models (after the prosecutor’s officehas formally filed charges, but before the case is adjudicated); accept felonies,misdemeanors, or both; target specific crimes (e.g., drug, property, or prostitution) or anarray of charges; and range in approach, from ordering defendants to lengthy periods of drugor mental health treatment to offering short educational classes or job training.Regardless of the variety, prosecutor-led diversion programs offer a potential remedy formany of the justice system’s principal challenges—for example, overcrowding and costefficiency issues—by encouraging resource savings, reducing collateral consequences forjustice-involved individuals, and shrinking jail populations, to name a few. Though not a newidea, interest in such approaches has recently grown, in part generated by the massincarceration crisis, new funding streams, emphasis on community prosecution, andpromising research results.In particular, results of a 2017 National Institute of Justice study conducted collaborativelyby the Center for Court Innovation, RAND Corporation, Association of ProsecutingAttorneys, and Police Foundation, are promising. The researchers studied 16 prosecutor-leddiversion programs in 11 jurisdictions across the country; impact evaluations were completedfor five programs in three different sites. Results indicate that in all five impact programs,diversion participants were less likely to be convicted and incarcerated. In four of the fiveChapter 1Page 6

programs, participation in a pretrial diversion program led to reduced recidivism.Appealingly, in four programs in which a cost evaluation was conducted, cases that wererouted to diversion used fewer resources than similar comparison cases (Rempel et al. 2018).Why are these programs so attractive? Beyond the potential for reduced recidivism and costsavings, diversion programs offer the prospect of “off-ramping” suitable cases early in thecourt process, potentially alleviating the strain on overburdened criminal justice agencies andresulting in increased case processing efficiency, reduced court backlogs, and betterdecision-making by court players. Theoretically, effective diversion programs thus enableprosecutors and other system players to invest greater resources in the most serious criminalcases, including those headed for trial. Moreover, pretrial diversion programs that includetreatment for behavioral health conditions offer a potential tool for prosecutors seeking toaddress defendant needs and reduce recidivism. The purpose of the current study was to learnmore about the range of prosecutor-led diversion programs nationwide and to provide adetailed portrait of their goals, target populations, and policies.About the Current StudyIn 2015, the Association for Prosecuting Attorneys (APA), collaborating with the Center forCourt Innovation (hereafter, the Center), was awarded a three-year grant from the U.S.Department of Justice’s Bureau of Justice Assistance (BJA). The goal of the Prosecutor-LedDiversion Initiative was to give prosecutors’ offices across the country the necessary tools tomake smarter diversion decisions, while simultaneously restoring public faith in justice andmaintaining public safety. In addition to assisting prosecutors around the country withplanning, implementing, sustaining, enhancing, and evaluating drug treatment diversionprograms, the initiative involved a national survey of prosecutors’ offices to be conducted incollaboration with NORC at the University of Chicago.The Department of Justice’s Bureau of Justice Statistics implements a national prosecutorsurvey every few years; however, prior versions lacked questions specifically about diversionprogramming. The current prosecutorial census asks a short series of diversion-relatedquestions, including questions about whether diversion programs are used in eachjurisdiction; for which types of defendants and crimes diversion programming is available;whether prosecutorial staff is assigned to the diverted cases; and the number of cases divertedChapter 1Page 7

from traditional prosecution. However, detailed information regarding the scope of diversionprograms is not covered by the survey.1The current study is an attempt to fill this gap by asking prosecutors additional questionsabout four domains related to diversion: Prevalence and Type of Program Does the prosecutor run any pretrial diversionprogram? What are the basic program parameters? Program Goals and Philosophy What are the goals and objectives of thediversion program? Target Population Who is eligible for diversion programs? How are casesscreened, assessed, and routed to the program? Policies and Practices What staffing, services, case management, or otherpolicies apply to the program?The remainder of this chapter describes the methodology used in the current study. Surveyresults are presented in Chapter 2 (Program Structure & Goals) and Chapter 3 (ProgramParticipation).MethodologyThis study was designed to provide a comprehensive portrait of prosecutor-led pretrialdiversion programs nationwide, exploring program goals, policies, and practices. For thepurposes of this study, prosecutor-led diversion programs were defined as a discretionarydecision made by prosecutors to route individuals (juveniles or adult) away from thetraditional court process. This section describes the survey instrument, sampling plan,fielding strategy, and data analysis.Survey InstrumentAPA, the Center, and NORC collaboratively developed the survey. Several key domainswere identified, including: prevalence and type of program (e.g., length of operation, stage of1Information available at dcdetail&iid 265.Chapter 1Page 8

program entry, eligible charge type); program goals and philosophies; target population(screening and eligibility, assessment); and program policies and practices (e.g.,treatment/services, program completion, supervision).The survey also included items expressly designed to document the use of key evidencebased strategies or promising practices. These include use of risk-need screening orassessment tools to determine eligibility, length, and content of mandated services; use ofcognitive-behavioral and trauma-informed treatment approaches; deterrence strategiesincluding positive incentives for program completion (e.g., case dismissed) and negativeincentives for non-completion (e.g., probation sentence); and distribution to defendants ofwritten materials describing the program and their responsibilities. A full copy of the surveyinstrument can be found in Appendix A.Sampling PlanThe sampling frame was the pay-for-use list of 3,871 prosecutor offices maintained by theNational Public Safety Information Bureau. Using publicly available census data, NORCdefined two strata based on county population size, oversampling prosecutors’ offices inlarge jurisdictions where diversion programs are more likely to exist. The first stratumincluded the one-third of the jurisdictions (n 1,280) with a population greater than 61,000;the second stratum included the remaining two-thirds of counties with a population of lessthan 61,000 (n 2,591).NORC further developed an urban or rural flag for each jurisdiction based on the 2015 fiveyear American Community Survey county population counts. An urban county was definedas one located within a Metropolitan Statistical Area (MSA), a standard designation definedby the federal government,2 whereas a rural county was defined as outside any MSAs. Over84% of the jurisdictions in the first stratum were in urban counties, while 82% of thejurisdictions in the second stratum were flagged as rural counties.A systematic equal probability sample of 400 counties was selected from each stratum,resulting in a total target sample of 800. Within each stratum, the frame was first sorted bygeography and then by population size and a random starting point was identified, after2A Metropolitan Statistical Area (MSA) must have at least one urbanized area of 50,000 or moreinhabitants.Chapter 1Page 9

which every nth case was selected until the target sample of 400 counties was reached.Implicit stratification ensured an even sample spread by geography and population sizewithin each stratum.The 800 target prosecutors’ offices represented oversampling to account for nonresponse.Ultimately, NORC hoped to receive 400 completed surveys, with 200 from offices that hadexisting diversion programs. With this sample size, a typical proportion estimate had amargin of error no greater than 5 percentage points at the 95 percent confidence level.Fielding StrategyThe survey was offered online in English only and took an estimated 15 minutes to complete.Each office in the sample was given a unique URL to access the survey. Sampled officeswere notified of the survey the week of August 7th, 2017, and invited to complete it thefollowing week. Outreach was primarily via post; supplemental email and telephone outreachwas feasible for a portion of the population (see details below). Each mailing included theindividualized URL and contact information for a study representative.Mailings A full schedule of the mailings is as follows: Pre-notification mailing (Week 1) A pre-notification letter was mailed to eachsampled office announcing the start of data collection. Web invitation letter (Week 2) Approximately one week after the pre-notificationletter, sampled officers were sent a web invitation letter. This invitation informed theoffice of the importance of the study, requested its timely submission of the survey,and provided instructions to respond via the web. Thank-you/reminder postcard (Week 3) A thank-you/reminder postcard wasthen mailed to offices seven days after the web invitation. This postcard thanked thoserespondents who had completed the survey and encouraged non-responders tocomplete it. Reminder letter (Week 4) A week after the thank-you/reminder postcard, areminder letter was sent to each non-responder.Chapter 1Page 10

“Last chance” postcard (Week 7) Three weeks after the reminder letter, a “lastchance” postcard was sent alerting potential respondents that data collection wouldend soon and asking for their timely submission of the survey.Prompting Before data collection launched, web searches yielded email addresses andphone numbers for 250 of the 800 sampled offices. This allowed NORC to send emailscontaining the office’s unique survey URL, in conjunction with the standard mailings, foralmost one-third of the sample. These email addresses and phone numbers were also used forfollow-up prompts.Final Sample and AnalysisThe final dataset contained 220 responses—a 28% response rate, substantially lower than thetarget sample of 400. The data were weighted with a simple ratio adjustment within eachstratum and MSA. Of the 220 offices responding to the survey, 55% had diversionprogramming in place. The findings presented in chapters 2 and 3 are limited to the 121prosecutors’ offices that had a diversion program, with the analysis weighted to produceestimates for the population of 2,854 cases from which our sample was randomly selected.3Descriptive statistics provide a comprehensive portrait of prosecutor-led pretrial diversionprogram goals, policies, and operations, and also explore the relationship betweenjurisdiction size and key policy characteristics. Bivariate analyses (t-tests and chi-squaretests) were used to test for any differences between urban and rural counties.3Even with a low response rate, it is possible that a sample can be representative. Many priorstudies have shown the correlation between response rate and estimation bias is low (e.g., Curtin,Presser, & Singer 2000; Fricker and Tourangeau 2010; Groves 2006; Keeter et al. 2000; Merkle& Edelman 2002). For further information on this weighting strategy, please contact ourcollaborators at NORC at 1Page 11

Chapter 2Program Structure & GoalsThis chapter provides an overview of the types and structure of prosecutor-led diversionprograms identified by survey respondents, as well as the primary goals of those programs.Survey respondents were asked to describe the development and oversight of diversionprograms, their eligibility requirements, the target population, and general program structure.Respondents were further asked to assess the importance of specific goals as they relate totheir diversion programs by rating each goal on a four-point scale from “not a goal” to“extremely important goal.”Based on the final survey sample, 55% of respondents reported that their agency offeredsome type of prosecutor-led diversion program. Contrary to expectations, urban countieswere no more likely than rural ones to report having a diversion program. All tables andfigures throughout this report—with the exception of Table 2.1—are based on the subsampleof respondents who reported that their office was involved with a prosecutor-led diversionprogram (N 121).Table 2.1. Prevalence of Prosecutor-Led Diversion ProgramsActual NWeighted N1Site Has No Prosecutor-Led Diversion ProgramSite Has a Prosecutor-Led Diversion ,59146%54%All Sites2203,87145%55%*p .05, **p .01, ***p .0011Actual responses were weighted to produce estimates for the population from which the sample was randomlyselected.Chapter 2Page 12

Program StructureTiming of Program EntryCases can be diverted by prosecutors at two points in the process: before the case is filedwith the court (pre-filing) or after the court process begins but before a disposition (postfiling). As shown in Table 2.2, just over half (53%) of programs were post-filing models;15% were pre-filing models; and a third of programs (32%) include a mix of pre- and postfiling cases, depending on the specific details of the case. Urban jurisdictions were primarilypost-filing models, whereas rural jurisdictions utilized slightly more pre-filing models ormade case-by-case discretionary decisions.Table 2.2. Timing of Program EntryActual NWeighted N1Pre-FilingPost-FilingPre- and Post-Filing 91All Sites1212,10818%***44%38%12%66%22%15%53%32%*p .05, **p .01, ***p .0011Actual responses were weighted to produce estimates for the population from which the samplewas randomly selected.Target PopulationPopulation ServedNearly all programs (94%) served adults: either solely (74%) or alongside juvenileparticipants (20%). A small minority of programs (7%) served only juveniles. While themajority of programs across both urban (85%) and rural (67%) counties served adults only,rural counties were more likely to report targeting diverse age groups in a single program(27% v. 8%, p .001).Chapter 2Page 13

Table 2.3. Population ServedActual NWeighted N1Adult OnlyJuvenile OnlyAdult and JuvenileRuralCounties70717UrbanCounties511,391All Sites1212,10867%***6%27%85%8%8%74%7%20%*p .05, **p .01, ***p .0011Actual responses were weighted to produce estimates for the population from whichthe sample was randomly selected.Eligibility by Charge and Criminal HistoryHalf of programs (52%) had charge type restrictions—that is, only defendants charged withspecific charges (or charge types) were considered for the program. Very few programsconsidered violent felonies for diversion (4%); more than half accepted non-violent felonies(56%) and misdemeanors (60%); 40% diverted lesser violations and infractions. Urbancounties were more likely than rural sites to divert misdemeanor charges (69% v. 54%),while rural jurisdictions were more likely to consider very low-level offenses for diversion(43% v. 36%).Chapter 2Page 14

Table 2.4. Eligibility by Charge and Criminal HistoryActual NWeighted N1Participation Limited to SpecificCharge TypesEligible Charge Severities2Violent FelonyNonviolent FelonyMisdemeanorLesser ,391All 73%34%2Eligible Criminal HistoriesAny Prior ArrestAny Prior Misdemeanor ConvictionPrior Felony Conviction*p .05, **p .01, ***p .0011Actual responses were weighted to produce estimates for the population from which the samplewas randomly selected.Most programsdivert offenders withprior arrests (85%) and prior misdemeanor convictions (73%); only a third of programsdivert offenders with prior felony convictions (34%). Overall, urban programs were morelikely than rural ones to accept individuals with priors.2Respondents could select multiple responses, so percentages sum to 100%.3Mostly DUIs.Program GoalsFigure 2.5. Programs Rating Goals as Extremely ImportantChapter 2Page 15

Respondents were asked to rate a series of possible program goals on a four-point scaleranging from “not a program goal” to “extremely important.” Overall, the four mostimportant goals across both urban and rural jurisdictions were: (1) hold participantsaccountable for their criminal behavior (55% rated extremely important); (2) reduceparticipant recidivism (55%); (3) rehabilitate participants by treating their underlyingproblems (43%); and (4) use resources more efficiently (42%). Only 4% of respondingprograms felt that involving the community in prosecutorial decisions was a major impetusfor the diversion program.Chapter 2Page 16

Chapter 3Program ParticipationThis chapter describes, for the programs in our survey sample, what happens once a case isflagged as potentially eligible for the diversion program.Screening & AssessmentAs shown in Table 3.1, 69% of responding programs used an assessment to screenparticipants; urban sites were more likely to report using an assessment. Beyond helpingprosecutors to determine program eligibility (in 42% of programs), assessments were used todetermine the content (27%) and length (22%) of mandated services. In fewer sites,assessment results helped to inform the intensity of initial programming—that is, howfrequently participants attended mandated services (15%) and/or met with case managers(14%). Generally, urban sites were significantly more likely than rural ones to informprogramming with assessment results. Nearly all (99%) programs allowed participants torefuse to participate in diversion programming.Table 3.1. Screening and AssessmentActual NWeighted N1Any Assessment ConductedProgram Assessment Used to Determine:Program EligibilityContent of Mandated ServicesLength of Mandated ServicesInitial Frequency of Mandated ServicesInitial Frequency of Case ,39185%All 2%30%20%17%42%27%22%15%14%*p .05, **p .01, ***p .0011Actual responses were weighted to produce estimates for the population from which the sample wasrandomly selected.Chapter 3Page 17

Program LengthRural programs reported shorter program stays. Just over a third (34%) of respondentsreported that participants typically spend between 10 to 12 months in the program; half ofprograms last ten months or more (52%). Rural programs were more likely to report veryshort stays of three months or less (21% v. 11%) and long program stays of more than a year(21% v. 11%).Table 3.2. Program LengthActual NWeighted N10-3 Months4-6 Months7-9 Months10-12 MonthsOver a YearRuralCounties70717UrbanCounties511,391All %10%35%17%*p .05, **p .01, ***p .0011Actual responses were weighted to produce estimates for the population from which thesample was randomly selected.Program RequirementsService ProvisionRespondents were asked to identify the types of services offered to participants. Theseservices were not necessarily mandated for participants; positive responses indicate that aspecific type of service was available and offered to participant. (In some instances, servicesmay have been mandated, but the survey did not specifically ask about mandated services.)Across both urban and rural counties, the most commonly available services werecommunity service (77%), substance abuse education (69%), substance abuse treatment(59%), and individual therapy (42%).Overall, urban programs were more likely than rural programs to offer each of the listedtypes of services to diversion participants, with the exception of family therapy (morefrequently offered in rural sites), restorative justice programs involving the victim (nodifference), and health education (no difference). Given the relatively greater availability ofChapter 3Page 18

service programs in urban jurisdictions, it is not surprising that urban programs were morelikely to offer services.Figure 3.3. Percent of Programs Offering Select Services11Does not sum to 100%; respondents selected multiple options.Other Program RequirementsBeyond service referrals, responding programs were asked about program requirementsincluding restitution to victims and fines, fees, or surcharge payments. More than half of bothdiversion programs required restitution and/or fines and fees in all cases; this was true acrossurban and rural programs. Mandatory victim restitution was slightly more common in urbanjurisdictions, whereas compulsory fines and fees were more common among rural programs.Chapter 3Page 19

Table 3.4. Other Program All Sites1212,108Restitution to VictimAlwaysSometimes (case-by-case)65%***28%70%21%67%25%Fine, Fee, or Surcharge PaymentAlwaysSometimes (case-by-case)69%***15%52%29%63%20%Actual NWeighted N1*p .05, **p .01, ***p .0011Actual responses were weighted to produce estimates for the population from which the samplewas randomly selected.Promoting Participant UnderstandingThe literature on procedural justice suggests that respect, neutrality, voice, andunderstanding are central to promoting perceptions of a fair process for justice system usersand increasing compliance. Particularly relevant for prosecutor diversion programs isunderstanding—of criminal court processes, rights, requirements for compliance, andoutcomes. Programs can promote user understanding through strategies such as creating andsharing documents outlining program rules and expectations and specifying likely outcomesof both program completion and termination.Table 3.5. Promoting Participant UnderstandingActual NWeighted N1Written Information Provided to ParticipantsHandbook about ProgramOther Written Information about ProgramParticipants are Told Likely Case OutcomeUpon Successful Completion of MandateUpon Program ties511,39163%11%52%All Sites1212,10869%19%50%91%***91%84%94%88%92%*p .05, **p .01, ***p .0011Actual responses were weighted to produce estimates for the population from which the sample wasrandomly selected.Chapter 3Page 20

Over two-thirds (69%) of programs indicated that participants are given written materialsdescribing the program—either in the form of a program handbook (19%) or other writteninformation about the program (50%). Rural sites were more likely than urban ones to reportdistributing a formal program manual or handbook to participants.The majority of programs reported that participants are told up front what will happen totheir case if they complete the program successfully (88%) and if they are terminated fromthe program (92%). Rural programs were more likely than urban ones to report informingparticipants of the legal ramifications of successful program completion up front; urban andrural programs are equally likely to report that participants are told the likely consequence ofprogram failure.SupervisionTable 3.6. Supervision ModelsRuralCounties70717UrbanCounties511,391All %Meetings with Case Manager/Probation OfficerUniversal Requirement43%***Case-by-Case28%46%

This study was designed to provide a comprehensive portrait of prosecutor-led pretrial diversion programs nationwide, exploring program goals, policies, and practices. For the purposes of this study, prosecutor-led diversion programs were defined as a discretionary decision made by prosecutors to route individuals (juveniles or adult) away from the

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