Shaila Dewan and Andrew W. Lehren
December 12, 2016
New York Times
Diversion is intended to relieve overburdened courts and crowded jails, and to spare low-risk offenders from the devastating consequences of a criminal record. But an examination by The New York Times found that in many places, only people with money could afford a second chance. Though diversion was introduced as a money-saving reform, some jurisdictions quickly turned it into a source of revenue.


Marcy Willis, right, at a church service. She was charged with a felony in 2011 and has participated in a program known as pretrial diversion, which could lead to her record’s being cleared., Kevin D. Liles for The New York Times,

During the tough financial times of 2011, Marcy Willis, a single mother who raised five children in Atlanta, used her credit card to rent a car for an acquaintance in exchange for cash. But the man — and the car — disappeared, she said. Four months later, when Ms. Willis finally recovered the car and returned it, she was charged with felony theft.

As a first-time offender, Ms. Willis, 52, qualified for a big break: a program called pretrial intervention, also known as diversion. If she took 12 weeks of classes, performed 24 hours of community service and stayed out of trouble, her case would be dismissed and her arrest could be expunged, leaving her record clean.

Diversion is not uncommon. Last year, Rebecca Horting, a 36-year-old nurse in Topeka, Kan., was offered a similar deal for an offense that caused far greater harm. She was charged with reckless battery and texting while driving after she hit a girl on a bicycle, causing brain damage and the loss of a leg.

Both women did what was required of them, yet their cases took different paths. The reason: money.

Ms. Horting was able to pay $1,138 in fees and is on track to have her case dismissed.

Ms. Willis, who owed $690, had a harder time. When she paid all but $240, her case was sent back to court for prosecution.

By that time, the arrest had already led to her losing her job, and then her apartment. At a homeless shelter, she was robbed. Accustomed to earning a living, she began to despair.

“I felt like I was in a grave or a hole and instead of digging the dirt out, it was piling up,” Ms. Willis said. “I lost the respect of my kids, my family, and I was too embarrassed to reach out to friends — so what do you do?”

Though few people have heard of diversion, the practice is increasingly being embraced as a way for the criminal justice system to save people from itself.

Diversion is intended to relieve overburdened courts and crowded jails, and to spare low-risk offenders from the devastating consequences of a criminal record. It mostly applies to nonviolent cases that make up the vast majority of crimes — offenses like shoplifting, drug possession and theft. There are now diversion programs in almost every state.

But an examination by The New York Times found that in many places, only people with money could afford a second chance. Though diversion was introduced as a money-saving reform, some jurisdictions quickly turned it into a source of revenue.

Prosecutors exert almost total control over diversion, deciding who deserves mercy and at what price, The Times found. The prosecutors who grant diversion often benefit directly from the fees, which vary widely from town to town and can reach $5,000 for a single offense. In a country where 27 million households make less than $25,000 a year, even $500 can be prohibitive.

Diversion, interviews and case records show, can be revoked for failure to pay, or never even offered to defendants deemed too poor to afford it. A prosecutor in Ohio said he rejected applicants if he thought they wouldn’t be able to pay restitution within a time limit — one that he imposed.

“To tell somebody that if you can pay for this, you can get your charges dismissed, but if you are poor you are going to go through the system? That’s completely unfair,” said Mark Kammerer, who runs diversion programs for the Cook County state’s attorney in Chicago, where defendants are not charged a fee.

The Times examination focused on adult diversion programs run by prosecutors, as opposed to drug courts or mental health courts where a judge is in charge. The Times gathered information, statutes and fee schedules on 225 diversion programs in 37 states and interviewed more than 150 prosecutors, defense lawyers, defendants and experts.

Because prosecutors have wide latitude to design the programs, different jurisdictions have different rules, resulting in substantial inequities for defendants, records and interviews show.

Tennesseans cannot get diversion for drunken driving, but in Oregon it is common. In Saline County, Kan., diversion is not offered for drug offenses; three counties south, it is. In Toms River, N.J., a school district official accused of a $141 fraud was rejected by the prosecutor, who argued that she had violated the public trust. But near Winston-Salem, N.C., a prosecutor accused of offering $20,000 to fix an election was allowed to enter pretrial diversion.

Because diversion is considered a privilege, not a right, the district attorney’s decision is almost always final and those who are rejected have no way to appeal.

Yet even defendants who are granted diversion can discover that the central promise of the program — avoiding prosecution and a criminal record — can be an empty one.

Dismissed cases can still show up as a black mark in a background check. And many district attorneys impose rules that undermine the benefits of diversion, such as requiring defendants to enter a guilty plea that can later be used against them. Some defendants find themselves saddled with strict requirements, like hundreds of hours of community service, five years of probation or even a month in jail, that are indistinguishable from punishment.

Because prosecutors are usually not required to report on their programs and many diversion agreements are not filed in court, there is little quantifiable data on fees, success rates, recidivism or even who is rejected. A few studies, including a recent Department of Justice examination of the Memphis juvenile court system, suggest that whites are far more likely to get diversion than blacks.

Almost 200 defense lawyers across the country answered a Times questionnaire about diversion. Two-thirds of them said fees were a barrier for their clients.

In Atlanta, Ms. Willis’s diversion was overseen by a private company that said about one in four of its cases was returned to court, often for failure to pay.

Because of a court backlog, Ms. Willis’s case remained pending, and on her record, for more than four years. Finally, in January, she scraped together the remaining $240 and, with the help of the Georgia Justice Project, got the case dismissed.

Now, her record has been approved for expungement — as soon as she can pay the $25 fee.

Prosecutors’ Power

In the aging rust belt towns of Lorain County, Ohio, diversion operates under the sole authority of Dennis Will, the prosecuting attorney. Mr. Will allows arresting officers and victims to block diversion. Defendants who enter the program pay only a modest fee but must plead guilty and pay off all restitution within a year. Though state law allows diversion for violent offenders in certain circumstances, Mr. Will does not.

Lawyers there said diversion applicants had been denied because of unrelated prior offenses like driving with a suspended license or drunken driving. “It was very difficult to get anybody in diversion,” said one local lawyer, Kenneth Ortner. “It was a joke among defense attorneys.”

A national panel had something else in mind when it drew up standards in 2008 for pretrial diversion. The programs had been around for decades, but fell out of favor during the war on drugs. With the tide turning against incarceration, the idea was to reintroduce diversion as an alternative, said Spurgeon Kennedy, the vice president of the National Association of Pretrial Services Agencies, which drafted the standards.

Diversion is intended to address the root causes of crime by connecting defendants to counseling, job training and, in the case of a Philadelphia man caught with painkillers, medical benefits to cover a much-needed root canal.

It also gives prosecutors a face-saving way to avoid absurd outcomes. A Georgia college student who hacked into the online calendar of the school’s football rival and left a prank message faced up to 15 years in prison. He got diversion instead.

Brendan Kelly, a prosecutor in Illinois, started offering diversion four years ago after seeing marijuana arrests having “tremendous impact” on the future of young African-American men. “You’re branding them with a scarlet F” for felon, Mr. Kelly said. “You’re making them a permanent problem for law enforcement.”

But diversion is not without political risk, and it requires officials to balance questions of culpability, justice and mercy. In Chattanooga, Tenn., there was a public outcry when a speeding teenager was given diversion after a fatal crash. In San Antonio, on the other hand, a district attorney reluctant to use diversion was unseated.

In Lorain County, Mr. Will said, voters have the ultimate say. “If people don’t like the decisions I make, then they have a way to deal with that.”

Frustrated by Mr. Will’s rules, county judges decided to take the matter into their own hands. In 2010, they started a competing program.

James Burge, a judge at the time, said the legislature had intended for many more defendants to get diversion.

“You find a credit card on the ground and you use it. That’s an automatic felony. You come in to Judge Burge and you plead guilty. You’re going to be on probation for at least 18 months and you’re going to have a felony conviction,” Mr. Burge said. “You have to wait another three years to get that record sealed. That’s four to five years as a young adult with a felony record. Try to buy a car, get a job, get a loan — it’s not happening.”

The judges’ diversion program gave a second chance to some defendants who had been rejected by Mr. Will.

Among them was Wayne Dopart, who had been indicted on theft and Medicaid fraud charges. Mr. Will did not believe that Mr. Dopart could pay the thousands of dollars he owed in the case within a year, his lawyer recalled. But when Mr. Dopart was admitted to the judges’ program, he paid on time.

Brenda Barber-Hartman, who was charged with theft, was denied diversion because her arresting officer objected, according to court records. Corey Earl, a former police officer accused of cashing a $400 stolen check shortly after retiring from the force, was also deemed ineligible. Both Ms. Barber-Hartman and Mr. Earl successfully completed the judges’ diversion program.

Of the 21 defendants listed in one court filing who had been granted diversion by the judges, only two had subsequent charges in Lorain County.

But defendants like Ms. Barber-Hartman and Mr. Earl were not in the clear. Instead, they found themselves ensnared in a legal battle between the judges and the prosecutor.

Mr. Will argued repeatedly to the appeals court that only prosecutors had the power to grant diversion. Several of the judges’ completed diversion cases were overturned and the defendants were forced to return to court.

Ms. Barber-Hartman pleaded guilty and now has a felony record. Mr. Earl’s diversion was upheld, but he has been unable to get the case expunged from his record so he can find work.

Mr. Will argued that because Mr. Earl was a police officer, “it is important for the public to maintain a public record of when this public figure admitted to violating that trust.”

Defendants Used as Piggy Banks

Early last year, 24-year-old Caleb Moore was arrested in Troy, Ala., on charges of possessing Xanax and marijuana. Mr. Moore is the son of Roy Moore, at the time the chief justice of the Alabama Supreme Court. Despite having three prior drug-related arrests, Caleb Moore was granted pretrial diversion, paying $900. After he promised to enter drug rehab, his case was dismissed.

But not every defendant is the son of a prominent jurist. The vast majority are poor people for whom $900 is well out of reach. Yet in many jurisdictions, they are required to pay the same fees as well-heeled defendants.

Diversion programs have complex fee structures, and it is impossible to come up with an average cost. To begin with, some defendants must pay just to find out whether they are eligible; The Times found nonrefundable application fees as high as $250. If accepted, defendants almost always pay a program fee, typically a few hundred dollars but in some places far higher. Drunken driving diversion is often the most expensive; in the city of Dothan, Ala., it costs up to $5,000.

The list of additional charges can be long: counseling, classes, drug tests, monthly supervision, charitable contributions, court costs, prosecution costs and compensation for the arresting agency. The Times found cases where defendants who were not being prosecuted paid a $400 drug lab fee, a $50 Crime Stoppers fee or $2,000 for the services of an indigent defense lawyer.

District attorneys are sometimes willing to adjust their diversion policies for the right price. In Shawnee County, Kan., defendants who might not normally be considered eligible can get diversion if they agree to pay more than the usual fee — sometimes thousands of dollars more — said Matt Patterson, the district attorney’s chief of staff.

Asked if the fees are ever waived for the poor, Mr. Patterson gave a long sigh. “Not really, to be honest with you,” he said.

The same is true in many places. “Pretrial diversion is a voluntary program,” reads the prosecutor’s website in Florida’s 18th judicial circuit, in all capital letters. “Fees are not eligible for reduction or waiver.”

While some jurisdictions do make allowances for the poor, The Times found sliding scales that exist largely in theory. In South Carolina, state lawmakers capped the diversion fee at $350 and said it might be waived for indigent defendants. But waivers remain an afterthought at best. In a review of diversion guidelines issued by 13 of the state’s 16 prosecutors, only two mentioned the possibility of a waiver.

In interviews, several prosecutors seemed to have given little consideration to whether the costs exclude defendants.

“I guess you’re right,” said Ron Dixon, a longtime prosecutor in Fulton County, Ga., when asked if fees kept people out of the program. Scott Colom, who last year was elected district attorney in eastern Mississippi with help from the liberal billionaire George Soros, said he ran on a platform of expanding diversion but kept the fee the same as his predecessor, assuming it was cheap compared with other places. It is $1,320.

That fee does cover services that cost extra in other jurisdictions, like drug testing and counseling. It can also be paid over time, which makes diversion more accessible.

It is impossible to determine how many defendants are barred from diversion for lack of money, but one jurisdiction offers a hint. The diversion program in New Orleans once cost as much as $1,200 and had about 300 participants. In 2009, when a new district attorney lowered the cost to $200, participation more than tripled.

But some jurisdictions have come to rely on diversion revenue. In 2015, Wichita, Kan., brought in almost $1.2 million, an increase of 49 percent over 2010.

Diversion fees have received little scrutiny: They are rarely challenged in court, and district attorneys are seldom required to give a detailed account of how they spend the money. With so few checks and balances, the money can easily become a source of temptation.

In 2013, a Nebraska prosecutor pleaded guilty to donating diversion money to a trapshooting team. In 2009, the district attorney in Shawnee County was found to have paid himself more than $300,000 from the pretrial diversion and forfeiture funds. The county attorney in Brown County, Tex., is under investigation for accepting what he called donations of as much as $2,500 — the state maximum diversion fee is $500 — in exchange for diversion.

Some critics say diversion fees do not pass the smell test no matter how the money is used. “It’s almost like you’re paying for a dismissal,” said Lynn Pride Richardson, the chief public defender in Dallas. “And that is illegal.”

Some prosecutors said fees were necessary to cover programs’ costs. In other cases, defendants were used as piggy banks.

Scott Anderson, who worked in the Topeka city prosecutor’s office, said the city’s fee structure had pure revenue “built in,” even though the program saved the city money.

“The way we explained it to defendants — this is going to sound terrible — it was the benefit of the bargain for us: what the city was getting for not prosecuting you,” said Mr. Anderson, who has since become a public defender in Wichita.

“When I was a prosecutor, it didn’t present a problem to me. But I’ve been a defense attorney now for 11 months, and it’s been an eye-opener,” Mr. Anderson said. “I didn’t realize how many people we were actually disenfranchising from participating.”

Removing Hurdles in Chicago

By title, Amrith Aakre is an assistant prosecutor in Cook County, which encompasses Chicago. But what she really does is save people from prosecution. One morning in June, she sorted paperwork from the previous night’s arrests into two stacks: eligible for diversion, or probably not. A sheaf of paperwork from a huge drug bust went into the “no” pile. But on other cases, Ms. Aakre paused to take a closer look.

She picked up one case, a car break-in. “You see rage-induced damage like shattering windows, a violent component,” she said. “We’re looking at the public safety risk. This happened across the street from a school at 12 o’clock, when all the kids were outside at recess.”

Next, she checked the defendant’s history. “We’re looking for a pattern — is this a one-off thing or is there a long pattern of violence? If it’s a one-off thing, this may be the gateway. There is a saying, ‘The more you do it, the more you do it.’ And this is our opportunity to catch them at an early stage and give them the services to cope with whatever they’re dealing with.”

Cook County’s diversion programs, recognized as a national model, handle about 5,000 defendants a year. The emphasis is on inclusion: A team of prosecutors like Ms. Aakre is dedicated to scouting potential cases, and eligibility has steadily expanded.

Defendants do not have to plead guilty; if they fail, they are either returned for traditional prosecution with no penalty or moved to a more intensive program. Diversion can be completed quickly, in as little as three months for the most minor offenses. Victims must give consent, but they rarely refuse, prosecutors said.

Defendants pay no fee — in fact, the notion strikes prosecutors as absurd. “That would be a complete failure here in Cook County,” said Robert Groebner Jr., a felony prosecutor. “These defendants, they don’t have $50 in their pocket.”

The wide range of diversion programs is based on a medical model: Use the least invasive treatment that has a chance of success. Misdemeanor defendants may be required to do nothing more than attend two counseling sessions, while those charged with felonies can be sent to Branch 9, a yearlong program overseen by a singing, cowbell-jangling, no-nonsense judge. Community service is assigned only if the defendant cannot find a job.

In part because relapse is often part of recovery from addiction, the programs are forgiving: Defendants can repeat drug school, a defensive driving-style class for low-level drug offenders, if they have been arrest-free for three years, and can undergo a more intensive drug diversion program up to three times. Participants may be asked to get a substance abuse evaluation, but treatment is not mandatory.

“These are not people who are acutely symptomatic,” said Mark Kammerer, who runs the programs. “These are people who we want to think about whether there’s something deeper going on with them.” More complex cases are referred to drug court or mental health court, where defendants can be required to get treatment.

By Mr. Kammerer’s measure, the programs are highly successful. A year after finishing felony diversion, 97 percent of graduates have no new felony arrests, and 86 percent have no new arrests of any kind. Drug school alone saves the county an estimated $1.5 million a year.

One afternoon in felony court, Debra Kreatsoulas anxiously awaited the appearance of her husband, Carlos Ramirez.

Mr. Ramirez had gone to work drunk, Ms. Kreatsoulas said, and had gotten into an argument with a fellow school custodian. Mr. Ramirez left, saying he was going to get a gun and shoot the other man, according to the police report. It was the day after a mass shooting at an Orlando, Fla., nightclub that killed 49 people. The school was placed on lockdown; the story made the evening news.

Mr. Ramirez might have faced up to three years in prison. But when prosecutors reviewed the facts — he had no criminal record and no gun was found — they decided that diversion was more appropriate.

The victim at first refused to allow diversion, saying that Mr. Ramirez had used a racial slur. But he relented when he learned that Mr. Ramirez had already spent more than two weeks in jail.

Ms. Kreatsoulas, a teacher’s aide who could not afford to bail her husband out, was optimistic. She said his drinking had become worse since he lost a full-time job a year before. “This might force him to get the help that he needs,” she said. “He has a family that he needs to stand up and start supporting.”

Mr. Ramirez accepted Branch 9 diversion and, hours later, was released from jail, which he described as a dangerous place where inmates fought over bread and soap. “I’m not coming back here to the jungle,” he said.

Branch 9 connects defendants to services like classes for a high school equivalency diploma, substance abuse evaluations and health insurance.

Spurgeon Kennedy, the diversion expert, said recent research contradicted the assumption that punitive rules and negative consequences, rather than immediate benefits, keep defendants in line. “Defendants don’t think that way,” he said. “Most people are participating because they see a value.”

So far, Mr. Kammerer said, Mr. Ramirez has met all of his diversion requirements and is once again working full time.

Haunted by a Guilty Plea

Ten years ago, Issa Kona tried to steal an $80 battery charger from a Home Depot in Cleveland. The prosecutor’s office charged him with robbery, as opposed to shoplifting, because store employees said that when they asked for the merchandise, Mr. Kona resisted and had to be handcuffed.

Still, it was his first arrest. Mr. Kona’s case was dismissed after he agreed to plead guilty and enter pretrial diversion.

He came to regret it.

Mr. Kona, a Palestinian stonecutter, has been in the United States legally since 2002. His three daughters are in college. He had applied to become a United States citizen.

But when immigration lawyers discovered his robbery case, they warned him that the fact that he had pleaded guilty meant he could be deported.

“We don’t want to go back,” Mr. Kona said. “We don’t know a thing back there.”

Diversion’s big promise is to spare defendants a criminal record. But that central goal is being undermined by prosecutors across the country who, for the sake of expediency, are requiring defendants like Mr. Kona to plead guilty.

If a defendant fails to complete diversion and is sent back to court, prosecutors must mount a case from scratch, locating evidence and witnesses months or years after the fact.

“You didn’t just go to a sentencing hearing, you went to square zero,” said Joshua Marquis, an Oregon district attorney who serves on the board of the National District Attorneys Association. “So many D.A.s were like, ‘Why are we doing this?’”

Guilty pleas solve the problem, ensuring conviction without the effort of a trial.

But for defendants, the pleas make things more difficult, coming back to haunt them years after completing diversion. Pleas have been used as evidence to deny professional licenses, citizenship and employment. The 2008 diversion guidelines issued by the National Association of Pretrial Services Agencies said that defendants should not be required to plead guilty.

Other common practices make it harder for defendants to succeed. Though prosecutors can dismiss a case when diversion starts, clearing it from the docket with the option of reopening it later, many prefer to leave the case open. A pending charge, though, can stymie defendants’ efforts to find work and housing, or even win custody of their children.

The guidelines also stressed that dismissal is not enough — after diversion, cases should be sealed or expunged from the public record.

But expungement is rarely automatic, and many defendants do not realize that it requires filing paperwork and paying an additional fee. In El Paso, the district attorney bans expungement altogether.

In interviews, several defendants said they had trouble landing a job because their case appeared in background checks. Employers, they said, did not differentiate between a dismissal and a conviction.

In some cases, even expungement may not be enough. Though state laws usually specify that sealed records do not have to be disclosed on applications, The Times found job, college and housing forms that ask applicants whether they have ever had a case diverted.

The application for St. Mary’s University School of Law in San Antonio requires people to disclose any criminal case, “even if you were granted any type of pretrial diversion.” It adds, “Disclosure is required even if you have been told by any source that you do not have to disclose any such instance.”

Stephen M. Sheppard, dean of the law school, said diversion would not disqualify an applicant. The point, he said, was evoking candor and making sure that students did not have unacknowledged problems like substance abuse that would hinder them from representing future clients.

In Cleveland, Mr. Kona tried to undo his diversion and guilty plea to clear his path to citizenship.

Had the case gone to trial, Mr. Kona’s lawyer said, it would most likely have been downgraded to the less serious charge of shoplifting, which would not set off deportation.

So Mr. Kona took the unusual step of asking the state Supreme Court to allow him to be prosecuted.

During oral arguments 18 months ago, Justice William O’Neill did not bother to suppress his incredulity. “In order to get into that diversion program, you must admit to committing a crime?” he asked. “What happened to the Fifth Amendment?”

Last month, the court finally ruled, in Mr. Kona’s favor. The local prosecutor announced that he would not retry the case.


Follow Shaila Dewan @shailadewan on Twitter. For breaking news and in-depth reporting, follow @NYTNational.

Correction: December 14, 2016: A highlights listing on Monday with an article about pretrial intervention or diversion misstated the disposition of a case involving Robert Lavern Tucker. He pleaded no contest to felony theft; he did not plead guilty. (A no contest plea, though technically not an admission of guilt, is usually treated as such, which allows judges to sentence defendants as if found guilty.)






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