Adult Diversion

ADULT DIVERSION IS NOW OFFERED THROUGHOUT THE 7TH JUDICIAL DISTRICT

Definition & Purpose

Provide alternative interventions to certain adults whose primary driver for intersecting the criminal justice system is a permanent or temporary mental health disorder or substance abuse disorder. These interventions are intended to identify and address criminogenic risks present in the individual's life. The individual will have access to services, interventions, and opportunities through a case manager based on a customized need assessment. The goals are to avoid costly and ineffectual interactions with the formal court-based criminal justice system, avoid the unintended collateral consequences of formal criminal prosecution that can increase criminogenic risk, and reduce recidivism for participants effectively and sustainably.

The Program presents an opportunity to intervene very early on in the case, which can result in a more significant impact on the defendant's behavior: the less time that has elapsed between the arrest and the intervention, the more significant the potential effects on the precipitating behavior. The potential for collateral consequences of involvement in the criminal justice system today is substantial. Legislatures continue to pass and enhance laws to prohibit those convicted of crimes from many areas of employment.  A local criminal justice system can enhance public safety by minimizing collateral consequences and reducing stigma by offering diversionary programs for appropriate defendants.  Long-term experience in the field of diversion points to the fact that a successful participant is less likely to be rearrested in the future if he is gainfully employed and can contribute responsibly to his family and community.

The Program is viewed as a privilege, not a right.  Referrals to this Program are not based on race, ethnicity, gender, sexual orientation, or religious affiliation.   Diversion is intended to operate simply and flexibly.  The District Attorney can agree to divert a defendant at any point before plea or trial, including before charges are filed. 

As a matter of fairness, no case should be diverted which cannot be prosecuted.  By sending non-meritorious cases to Diversion, the system undermines the integrity of the Program and its ability to intervene meaningfully with defendants.  Non-meritorious cases that diverted lack the means to be prosecuted should the defendant fail the Program.  One of the underpinnings of Diversion is that if the defendant fails to comply with the Program, they will be returned to the court for prosecution.  If that prosecution cannot take place, then the diversion program's integrity is eroded.

Advantages of Diversion

• Upon completing the Program, charges are dismissed, and no criminal conviction exists.
• Participants receive skills, information, and assistance to reduce the risk of future incidents.
• Participants are accountable for their actions and agree to take steps to repair any harm caused by their actions.

Guidelines for Eligibility

In determining whether a defendant is appropriate for Diversion, the district attorney shall consider the following:

• The nature of the crime charged and the circumstances surrounding it;
• Any special characteristics or circumstances of the defendant;
• Whether Diversion is consistent with the defendant's rehabilitation and reintegration; and
• Whether the public interest will be best served by diverting the individual from prosecution.
• The defendant shall not be denied the opportunity to consult with legal counsel before consenting to Diversion.

Period of Diversion

In any case, before or after charges are filed, the district attorney may suspend prosecution of the offense for a period not exceeding two years. The period of Diversion may be

Extended for an additional time of up to one year if the failure to pay restitution is the sole condition of Diversion that has not been fulfilled because of inability to pay, and the defendant has a future ability to pay.

Statutory Requirements

Pursuant to the mandates of C.R.S. 18-1.3-101, this adult diversion program is subject to the following limitations:

• An individual accused of any of the following offenses is not eligible in that matter to participate in this Program: Sexual Assault 18-3-402; SAOC 18-3-405; Any sex offense against an at-risk adult or at-risk juvenile as defined 18-6.5-102(2),(4); Any sexual offense committed with the use of a deadly weapon; Enticement 18-3-305; Sexual exploitation 18-6-403; Procurement of a child 18-6-404; SAOC-POT 18-3-405.3; Child prostitution offenses in part 4, article 7, title 18.
• An individual accused of an offense wherein the underlying factual basis involves domestic violence as defined in 18-6-800.3 or of a sexual offense as defined in 18-1.3-1003(5) is not eligible for consideration for this Program unless the following conditions are met: 1) Formal charges have been filed, and; 2) the individual has had an opportunity to confer with counsel, and; 3) the individual has undergone domestic violence by a provider/evaluator approved by the Colorado DVOMB
• All diversion agreements shall contain a written waiver of speedy trial rights.
•  Upon completing the Program successfully, the applicant will be notified in writing by the Adult Diversion Program Case Manager that the Program was completed and that any underlying criminal charge or allegation is considered closed or dismissed with prejudice.
• Participation requires sufficient admissible evidence of a crime the individual commits to support a conviction.

Diversion Agreements

All diversions shall be governed by the terms of an individualized diversion agreement signed by the defendant, the defendant's attorney, if the defendant is represented by an attorney, the deputy district attorney, or the district attorney representative.  All diversion agreements shall include a condition that the defendants do not commit any criminal offense during the contract period.  Diversion agreements may also include provisions agreed to by the defendant concerning payment of restitution and supervision fee(s).

Diversion Requirements

The requirements of the Diversion Program often are more extensive and demanding than those placed on a defendant whose case is prosecuted in a formal court filing.  Diversion caseloads are lower than probation caseloads, and many times a Diversion disposition can more effectively hold the offender accountable for their actions by spending more time on managing the case and working with the defendant.

Every contract consists of five core elements:

• Completion of the LS/CMI assessment tool (Level of Service/Case Management Inventory) with Diversion Case Manager to assist in determining individualized case plans and appropriate services/treatment.
• Regular diversion meetings: All clients must attend all scheduled meetings on time and maintain excellent and consistent communication with their Diversion Case Manager.
• Education and Employment Goals: Clients must be employed part-time or successfully participate in a full-time education program.
• Behavior expectations: Clients must obey all federal and state laws and city/county ordinances.
• Community restorative justice: This may include restitution and community service.  All Diversion clients must complete community service with an approved non-profit or government organization in the community.

Outcomes

During the diversion period, the Program shall provide the level of supervision necessary to facilitate rehabilitation and ensure the defendant completes the terms of the diversion agreement.  Upon the defendant's satisfactory completion of and discharge from supervision, the court shall dismiss with prejudice all charges against the defendant.  The effect of the dismissal is to restore the defendant to the status they occupied before the arrest, citation, or summons. A person with an order of dismissal entered is not subject to a charge, prosecution, or liability under Colorado law of perjury or otherwise giving a false statement because of their failure to recite or acknowledge the arrest, citation, or summons in response to any inquiry made for any purpose.  If Diversion were a result of a pre-file case, the case would not be prosecuted upon the successful completion of all the contract terms.

If the defendant violates the conditions of the diversion agreement and or commits a new offense, the Program shall provide written notice of the violation to the defendant, the deputy district attorney, and the court if the case was filed initially.  The deputy district attorney, in their sole discretion, may initiate revocation of a diversion agreement by the filing of a criminal complaint, information, or indictment, or if charges have already been filed, by giving the court notice of intent to proceed with the prosecution or in the situation of a pre-file case the District Attorney will continue with the filing of the case and prosecution thereof.