Prosecutors may often be confronted with a complex moral dilemma when pursuing cases against first-time offenders. Namely, does every first-time offender, whose past offers little or no indication that she may commit a future crime, deserve to have a permanent felony on his or her record and face possible jail time?
Rather than proceed to trial, prosecutors are increasingly deciding that it is more beneficial for an individual, and their community, to place that individual into a pretrial diversion program in lieu of being charged with a felony. Pretrial diversion programs, which have been adopted by many jurisdictions, provide certain first time offenders with the opportunity to avoid being branded with a lifetime felony conviction. In some jurisdictions, the program is only available for drug-related arrests, and the option is not available for crimes such as murder or rape. In Maryland, for example, pretrial diversion programs differ from county to county. While Frederick County does no offer a pretrial diversion program, Montgomery County has a pretrial diversion program for theft and minor drug offenses.
Rather than find an individual guilty, a judge withholds trial and allows the defendant time to comply with the terms and conditions of their pretrial diversion agreement. If the defendant complies with these conditions, then they will not face conviction for the underlying felony and their record will only show the arrest. If the defendant fails to comply with the conditions of the agreement, then he or she will be brought in for trial.
While pretrial diversion programs differ from state to state, the primary goals of pretrial diversion are typically: (1) to prevent future criminal activity by placing certain individuals into community supervision; (2) to save prosecutorial and judicial resources for critical cases; and (3) to provide an pathway for restitution to victims of crime. The inconsistent behavior regarding which individuals are accepted into this kind of program, however, can be troubling.
Earlier this year, Baltimore Ravens running back Ray Rice was charged with assaulting his then-fiancée Janay Palmer inside a casino elevator. While a grand jury indicted Mr. Rice on a third-degree charge of aggravated assault causing serious injury, the Atlantic City Prosecutor’s Office dismissed the charge. Instead, the Prosecutor’s Office, along with a Superior Court Judge Michael Donio, approved Mr. Rice’s acceptance into a pretrial diversion program. Although the terms of Mr. Rice’s pretrial diversion program were not revealed, the program will include anger management, a prerequisite of a plea offer that had been tendered by the Prosecutor's Office. If Mr. Rice successfully completes the program, the third-degree charge of aggravated assault causing serious bodily injury would be dismissed and arrest would remain on his record, but with no conviction.
Interestingly enough, the same judge and same Prosecutor’s Office found that Shaneen Allen was not worthy of the benefits of a pretrial diversion program. Last October, Ms. Allen, a 27-year-old mother of two, was pulled over in Atlantic County, New Jersey for an unsafe lane change. During the stop, Ms. Allen informed the responding officer that she had a handgun in her car and possessed a conceal carry permit in her home state of Pennsylvania. She was arrested and charged with unlawful possession of a weapon and possession of hollow-point bullets.
Ms. Allen purchased the weapon to protect her family after she was robbed twice in one year. While there was no evidence that Ms. Allen ever intended to use the handgun for any purpose other than self-protection, she spent 40 days in jail before being released on bail and faces a felony charge that could put her in prison for the mandatory minimum of three years. Although Ms. Allen has no prior criminal record, Judge Donio rejected her motion to dismiss the charges and, perhaps more unfavorably, refused to overturn the prosecutor’s decision to deny her entry into a pretrial diversion program.
Alongside each other, the judgments in these two cases appear quite incomprehensible. The same Prosecutor’s Office and judge approved a pretrial diversion program for an individual charged with assault but declined a pretrial diversion program for a woman charged with unlawful possession of a handgun. Just as Mr. Rice’s case received a great deal of publicity, and criticism, Ms. Allen’s case has drawn some high profile coverage. In early August, a New Jersey Assemblyman introduced “Shaneen’s Law” which would give judges the full discretion to avoid mandatory jail time and offer pretrial diversion when necessary.
At a time when there are growing instances of prosecutorial misconduct, the inconsistent application of pretrial diversion programs could spur some type of reform, including the removal of physical violence from the type of crimes that an individual can commit and still enter into a pretrial diversion program. These types of reforms could be quite beneficial, but require that the pertinent prosecutor and judge focus on the negatives of excessive incarceration and the positives of rehabilitation. Setting a clear standard for the type of crimes and circumstances that warrant pretrial diversion treatment would help remove the inconsistencies detailed above and provide some incentive for prosecutors to focus on those cases that need to advance to trial.
Articles Editor, Criminal Law Practitioner