PART II. GENERAL ATTRIBUTES OF DIVERSION
Standard 2.1 Summary
Part II describes general attributes that apply to the development, implementation, operation, monitoring, and evaluation of diversion programs.
(a) Some guidance in this Part may not apply to community-first and law enforcement programs that are discussed in Parts III and IV, but it is instructive for implementation of these programs.
(b) For all other program types, this Part should be read in conjunction with the appropriate subsequent Part: Part V (for pre-filing diversion programs), Part VI (for pre-plea diversion programs); or Part VII (for post-plea diversion programs).
Standard 2.2 Developing a program
(a) Federal, tribal, state, and local governments should encourage the development and adequate funding of diversion. Jurisdictions should develop diversion programs that meet the needs of local communities, comply with due process, use evidence-informed or evidence-based methods, and implement best practices.
(b) Stakeholders should collaborate as a committee in the development of a program, and should include prosecutors, defense attorneys, judges, law enforcement officers, service providers, pretrial services personnel, corrections personnel, probation and parole officers, community group representatives, and victim advocates, as well as former, current, and potential program participants. Membership in the committee should reflect the jurisdiction’s demographics based on race, sex, religion, national origin, disability, age, sexual orientation, gender identity, and socioeconomic status. The committee should host presentations on societal issues that impact the implementation and operation of diversion programs, including but not limited to: the social construction of race, biological racism, national and any local studies of racial segregation and exclusion, structural racism, the criminal legal system’s role in perpetuating racial harm, and critical accounts of how race-neutral policies can reproduce racial harm. Committee members should participate in crisis intervention training. The committee should host presentations from representatives of early diversion programs in other jurisdictions. Committees should host presentations on restorative justice principles and trauma-informed approaches to healing.
(c) Jurisdictions should view diversion as an alternative to traditional criminal legal system interventions and should seek opportunities to integrate or expand existing community resources.
(d) Jurisdictions should consider diversion a proportionate and appropriate response to alleged unlawful conduct, and that any intervention by the criminal legal system, including diversion programs, is of a coercive nature that should be understood as an imposition on a participant’s liberty.
(e) To promote participant and stakeholder buy-in, programs should undertake outreach to diverse and underrepresented groups in the community, include community providers in discussions of program design, and engage in leadership that demonstrates institutional investment and commitment.
(f) Programs should be designed to avoid or mitigate collateral consequences. Stakeholders should identify and assess the collateral consequences of participating in a program and provide appropriate resources to assist participants in reducing, mitigating or otherwise addressing these consequences.
(g) Programs should be governed by publicly available and easily accessible written policies and procedures that:
(1) Describe the program’s objectives and interventions;
(2) Identify roles in the program, such as who will determine whether eligibility criteria are met, administer the program, provide services, evaluate the program, establish the expectations of each role, including a demonstrated commitment to participant success, with care to build a team that represents the demographics of the community, including race, language spoken, ethnicity, disability, gender identity, and/or sexual orientation;
(3) Provide for periodic training that reinforces program objectives, promotes cultural competency, discusses racial disparities and structural racism, facilitates awareness of implicit bias and stereotype threat, promotes crisis intervention, and improves communication techniques designed to elicit the most positive outcomes from participants;
(4) Require that treatment and service providers have the appropriate certification, licensing, and training;
(5) Specify the eligibility criteria for the broadest pool of potential participants possible and the efforts required to ensure all those eligible will have the opportunity to participate, regardless of class, race, gender identity, and sexual orientation;
(6) Explain and guard against net-widening;
(7) Add to and enhance, rather than replace, any existing community resources and services;
(8) Assess the needs of the population to be served by the program, providing outreach measures designed to ensure feedback from community members, with special care to include underserved groups;
(9) Provide adequate funding to ensure that financial burdens related to any aspect of a diversion program do not affect a person’s ability or decision to participate, as well as funding to offset or reimburse costs associated with program participation, such as transportation and childcare, to facilitate successful completion of the program;
(10) Implement screening mechanisms to determine whether it is appropriate to give eligible participants the opportunity for behavioral health services or other social services in the absence of any further threat of criminal sanctions;
(11) Design the program so that its duration is reasonable in light of its objectives, the severity of the alleged underlying conduct, and the participant’s needs;
(12) Delineate the potential levels of intervention or services to be offered, and provide for protocols that give due weight to any expert recommendations about an individual;
(13) Provide a flexible and appropriate level of monitoring, treatment, and contact;
(14) Set procedures for determining what constitutes a violation of the conditions of a program contract, how the program or service provider should exercise discretion including the use of graduated sanctions to modify the terms of participation and, as a last resort, what violations will justify termination from the program;
(15) Determine the process by which a participant and any defense attorney will be notified and may challenge an allegation that a participant violated the program contract;
(16) Clearly state criteria for successful participation in and fulfillment of the program contract;
(17) Determine the intended benefits to be accorded to those who successfully participate in the program; and,
(18) Provide for ongoing program monitoring and periodic evaluation for program performance and require record-keeping and the collection of de-identified data that will aid in the determination of whether the program is fairly administered and effective, including demographic information such as race, sex, religion, national origin, disability, age, sexual orientation, gender identity, and socioeconomic status of both the program participant and an identified victim.
Standard 2.3 Determining eligibility
(a) Jurisdictions should consider eligibility criteria for the broadest possible pool of potential participants and the efforts required to ensure that all those eligible can participate.
(1) All people who are eligible should have the opportunity to participate regardless of race, ethnicity, national origin, socioeconomic status, disability, gender identity, or sexual orientation.
(2) Jurisdictions should make affirmative efforts to determine whether an individual with behavioral health needs qualifies for the program, including screening for undiagnosed conditions that may trigger eligibility. Jurisdictions should also consider diversion for individuals who are high utilizers in need of therapeutic intervention.
(3) Jurisdictions should provide guidelines to ensure that an individual is not declining to participate based on the person’s ability to pay for costs related to program participation.
(b) Eligibility criteria should seek to include evidence-informed or evidence-based requirements.
(c) The opportunity to participate should not be denied because of discriminatory or arbitrary reasons.
(1) Eligibility criteria should be designed to prevent and eradicate racial disparities between arrest rates and admission rates to a program.
(2) Jurisdictions should not limit diversion to first-time offenders, given that racial and socioeconomic discrimination often impacts an individual’s criminal history.
(3) Jurisdictions that utilize risk-assessment tools should provide guidelines to identify and disregard any portion of an individual’s risk assessment that likely reflects racial harm, racial or economic discrimination,, or conscious or unconscious bias before assessing an individual’s eligibility for diversion. For similar reasons, jurisdictions should consider diversion for an individual whether or not the individual is assessed low, medium, or high risk.
Standard 2.4 Admission into a program
(a) Jurisdictions should offer admission into a program as soon as practicable.
(b) Before making a decision to participate, an individual should be informed of the basis for the allegation that the person has engaged in unlawful conduct, the anticipated conditions of participation in the program; the potential benefits of participating in the program; the likely consequences of not participating in the program, and the likely consequences of violating program conditions.
(c) A person’s decision not to participate in a program should not result in the imposition of additional charges or a more severe charge or sentence than would otherwise be imposed.
Standard 2.5 Entering into a program contract
(a) The terms of a proposed program contract should be acceptable to the program participant and all relevant parties.
(b) The program contract should be in writing and in the participant’s primary language. The program should utilize any services that are necessary to effectively communicate with a participant.
(c) Participation should not be made contingent on the waiver of rights unrelated to effective treatment or successful participation in the program. Participants should be notified of specific rights that may be waived by participation in a program, such as the right to a speedy trial. An individual should have the assistance of counsel before waiving any rights.
(d) The program contract should:
(1) Afford the least restrictive conditions consistent with the needs of the participant and public safety;
(2) Identify clearly defined, attainable conditions that the program participant must satisfy;
(3) Estimate the length of the program;
(4) Identify the types of modifications that may be made to program participation;
(5) Specify violations that must be reported, who reports violations, who receives notice of the violations, what steps will be taken upon the reporting of a violation, the sanctions available for various types of violations, who determines the imposition of any sanction, and procedures that govern any modification or termination of the program contract;
(6) Explain the likely consequences of being terminated from the program;
(7) Identify the benefits afforded upon completion of the program; and,
(8) Explain any permissible use of and any limitations on the use of information the program participant provides during programming.
Standard 2.6 Monitoring progress and compliance in a program
Guidelines should encourage appropriate communication between stakeholders and provide for appropriate discretion to deviate from the program’s sanctions to account for individual circumstances. If a participant is assigned to a service provider, the service provider should provide adequate support to ensure compliance with the terms of the program contract and communicate progress with other stakeholders.
Standard 2.7 Confidentiality of information obtained in relation to a program
(a) Information related to the treatment process, including intake, should be confidential.
(b) Information divulged in the course of program intake and participation should not be used in any criminal proceedings against the participant.
Standard 2.8 Completing a program
(a) A participant’s fulfillment of the terms of the program contract should trigger a determination that the participant has successfully completed the program. Upon successfully completing the program, the participant should receive written confirmation that all conditions of the program have been met, and the participant should receive the benefits promised in the program contract.
(b) An exit interview should be conducted to gather data for evaluation of the program’s strengths and areas for improvement.
(c) Upon notification of the individual’s successful completion, stakeholders should initiate the appropriate processes to expunge, seal, vacate, or otherwise shield from public view criminal records related to the underlying conduct.
Standard 2.9 Violating conditions of a program
(a) Only a clearly defined and serious violation should trigger an assessment of whether the contract should be modified to address the violation or the contract should be terminated. Any sanction short of termination should be used when possible. Before deciding to terminate a program contract, the program should consider the participant’s particular needs, whether therapeutic, financial, or logistical, that once addressed may facilitate successful participation.
(b) The participant and any defense counsel should be promptly informed of any violations of the program contract. The participant should receive a documented and reviewable decision that provides a basis for any decision to terminate a program contract.
(c) A decision to terminate participation in a program should be subject to administrative or judicial review with assistance of counsel. The process should permit the participant the opportunity to initiate a timely review of the decision to terminate the contract, which may include the opportunity to interview any person involved in monitoring the participant's program participation and the opportunity to review non-privileged documentation relevant to program participation. Administrative or judicial review should determine whether the alleged violation of the contract was clearly defined and serious, taking into account whether the participant’s alternative or mitigating interpretation of the underlying basis for the termination is reasonable.
(d) A participant’s failure to complete a program should not result in the imposition of additional charges or a more severe charge or sentence than would otherwise be imposed for the underlying conduct.
(e) Because of the burdens associated with diversion programs, jurisdictions should consider sentence credit for any time spent in a diversion program at any sentencing.
Standard 2.10 Evaluating a program
(a) The program should be subject to ongoing monitoring conducted by a group of diverse stakeholders, including an evaluation of compliance with the program’s stated objectives and methods.
(b) The program should also be evaluated periodically by independent reviewers, to ensure fidelity to the objectives of the program. Reviewers should include but not be limited to subject-matter experts.
(c) The evaluation process should:
(1) Collect and review data (excising personal identifying information), consider relevant research and evidence-informed or evidence-based practices, and engage stakeholders in the collection of any additional data;
(2) Review the needs, resources, and objectives of the program and the community, as well as review recidivism rates and public safety metrics;
(3) Assess the number of program participants, the participation rate of those eligible for the program and admitted to the program, the success rate of those participating in the program, and whether eligibility, admission, and success rates are fairly distributed along race, ethnicity, age, sex, gender identity, and economic status; and,
(4) Summarize the information reviewed and the methodology employed, identify program accomplishments and needs, identify program shortcomings, justify any policy proposals, and ensure the use and dissemination of any lessons learned.
(d) Jurisdictions should ensure that the data and the resulting reports are available to courts, prosecutors, the defense bar, probation, corrections, law enforcement, pretrial services, and the public. The evaluation data should be disaggregated so that it may be used by independent researchers.