by Messina Madson and Kendall Castello
As part of a nationwide movement for criminal justice reform, diversion programs are at the cutting edge and have been gaining momentum as Americans have started protesting mass incarceration as a solution to crime. Incarceration is highly expensive and leaves a person with a permanent criminal record that makes future success far more difficult. Diversion gives people a chance to address the underlying issues for their poor decisions and helps them avoid entering the criminal justice system and getting stuck there.
As the use of these programs grows, they are becoming a system within a system with rules and rewards of their own. It is critical for everyone involved in criminal justice to be aware of these programs, their structures, and the benefits they offer to an accused individual and the criminal justice system as a whole.
Diversion programs do exactly what the name implies—they “divert” an accused individual out of the criminal courts and into special programs. These programs can help change the trajectory of an accused person. Through the diversion program an individual can learn new habits, overcome addictions, and avoid criminal behaviors.
When someone completes a diversion program, the underlying case is dismissed and can be immediately expunged. Diversion programs offer individuals a fresh start with new tools to succeed.
The Texas Legislature has codified that graduates of a diversion program are entitled to an immediate expunction. The key to future success, an expunction removes all record of a crime. This clears a person’s criminal record from background searches by law enforcement, employers and educational institutions. Diversion graduates can pursue an education and career without the stigma of a criminal record.
So, how do we get those who need these programs plugged into an appropriate one?
First, please note that diversion is a “predisposition” program. This means that a person enters the program while the criminal case is still pending (prior to a plea bargain or trial). If the person is unable to complete the program, the case will return to the normal process in the courts.
Here are some other important things to know:
- Act quickly. Diversion programs sometimes have a narrow window to apply, so acting—sometimes even prior to indictment—is important.
- Know the local options. As an attorney, you must make sure you know what is available in your county of arrest. While drug diversion is the most common program, diversion programs are expanding into other areas of focus as well, such as:
- young people;
- people diagnosed with mental illness;
- people charged with Driving While Intoxicated.
- Don’t forget to apply. In nearly all instances, to get into a diversion program you must apply. The programs usually do not come looking for the participants. Each county will have its own programs and requirements for eligibility.
- File the paperwork to get the underlying case expunged. Upon completing the program, a case will NOT be taken off a person’s record unless that person or her attorney files for the expunction.
- Explore financial aid. Many programs have a financial component, but reduced rates or scholarships often are available based on documented need.
Why are these programs becoming more focal in the criminal justice system?
Today nearly everyone within the criminal justice system agrees that incarceration is a poor way to handle non-violent or low-level offenders. Diversion addresses the underlying issues that lead to the criminal behavior, with an eye towards taking the person OUT of the system altogether.
When those charged with non-violent or low-level crimes are pushed to do better, gain tools to succeed, and return to productive lives, everyone wins.
Messina Madson and Kendall Castello are the former First Assistant and Administrative Chief for the Dallas County District Attorney’s Office and are currently partners at Madson Castello, PLLC. They can be reached at email@example.com and firstname.lastname@example.org.