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How Do Federal Diversion Programs Work? Avoiding Conviction Explained

By Spodek Law Group | October 19, 2023
(Last Updated On: October 20, 2023)

Last Updated on: 20th October 2023, 09:16 am


How Do Federal Diversion Programs Work? Avoiding Conviction Explained

Federal diversion programs provide an alternative to traditional criminal prosecution for certain offenders. These programs aim to reduce recidivism rates, conserve court resources, and provide opportunities for treatment and rehabilitation. Here’s an overview of how federal diversion programs work and the benefits and risks of participating.

What is Pretrial Diversion?

Pretrial diversion is a voluntary program that diverts eligible offenders away from traditional criminal justice processing into a period of supervision, treatment, and services[1]. The major objectives of pretrial diversion are:

  • Prevent future criminal activity and promote rehabilitation by providing supervision and services like mental health or substance abuse treatment[3]
  • Conserve prosecutorial and judicial resources by resolving cases through diversion instead of traditional prosecution[3]
  • Provide restitution to victims and affected communities when appropriate[3]
  • Reduce recidivism rates by addressing underlying factors contributing to criminal behavior[1]

If the offender successfully completes the diversion program, they may qualify for a range of outcomes like dismissal of charges or a more favorable sentencing recommendation. However, failure to complete the program means they could be criminally prosecuted[3].

Eligibility for Federal Diversion Programs

Each U.S. Attorney’s Office develops policies on the use of diversion appropriate for their district. While programs vary, the U.S. Attorney has discretion to divert offenders against whom a prosecutable case exists[3].

In general, first-time offenders charged with less serious, non-violent crimes who have no or minimal criminal history are more likely to be eligible[1][2]. Factors considered may include[3]:

  • Age of the offender
  • Nature of the offense
  • Offender’s background and criminal history
  • Likelihood of recidivism
  • Needs of the community
  • Views of law enforcement and victims
  • Available program resources

However, federal policy prohibits diversion for certain offenses without high-level DOJ approval, including[3]:

  • Child exploitation or pornography
  • Sexual abuse or assault
  • Offenses with a managerial role in a criminal organization
  • Violent gang activity

Prosecutors cannot divert individuals if doing so would endanger public safety or violate obligations to victims[3].

The Diversion Process

The basic steps in the federal pretrial diversion process are[4][5]:

  1. Initial Screening: Defense counsel negotiates with prosecutors on diversion eligibility. A proffer meeting may be required where the defendant provides information about the alleged offense.
  2. Probation Interview: If approved by prosecutors, the defendant undergoes a pretrial diversion interview by a probation officer.
  3. Agreement: A diversion agreement is crafted outlining the term, conditions, treatment, restitution, and other requirements.
  4. Supervision: The defendant completes the diversion program under probation supervision. Requirements may include counseling, treatment, community service, avoiding further arrests, etc.
  5. Completion: If the program is successfully finished, charges are dismissed. Failure may lead to prosecution on the original charges.

Benefits of Pretrial Diversion

Benefits of completing federal pretrial diversion include[2][4]:

  • Avoiding conviction: Successful completion means no criminal conviction on your record.
  • Avoiding incarceration: Completing diversion avoids potential prison time for the charges.
  • Confidentiality: Diversion programs are confidential with less public exposure than traditional prosecution.
  • Self-improvement: Diversion provides opportunities for rehabilitation through counseling, education, treatment, etc.
  • Conserving resources: Diversion saves taxpayer dollars compared to traditional prosecution and incarceration costs.
  • Victim restitution: Diversion may include victim restitution as a condition.

Risks and Drawbacks

There are also potential risks and drawbacks to federal diversion programs[4]:

  • Costs: Defendants may have to pay program costs for things like treatment, drug testing, supervision fees, etc.
  • Admitting guilt: Some programs require admitting guilt upfront before charges are ultimately dismissed.
  • Strict requirements: Diversion imposes strict conditions; violations could lead to prosecution on the original charges.
  • Delays prosecution: Diversion delays prosecution which could impact defenses if the case goes to trial later.
  • Cooperation waived: Constitutional rights to silence and speedy trial are waived to participate.
  • Public safety: Some critics argue diversion could pose a danger to public safety in certain cases.

Completion Rates and Recidivism

Studies show federal pretrial diversion programs have high completion rates. One analysis found 88% of diversion cases were satisfactorily completed[1].

Recidivism data is limited, but indications are diversion participants have lower repeat offense rates than traditionally adjudicated offenders. However, more research is needed on long-term recidivism impacts[1].

Finding an Attorney

Consulting an experienced criminal defense attorney is highly recommended when considering pretrial diversion. An attorney can help assess eligibility, negotiate favorable terms, and provide guidance on risks and benefits. They can also assist with successful completion of the program requirements[4][5].

While federal pretrial diversion programs offer a chance to avoid conviction and incarceration, they require strict compliance. Thorough legal advice is important when evaluating diversion so individuals can make informed decisions. With proper legal guidance, these programs can provide opportunities for rehabilitation, restitution, and avoiding permanent criminal records.


[1] https://www.uscourts.gov/sites/default/files/66_3_5_0.pdf [2] https://jeffreylichtman.com/new-york-city-pretrial-diversion-lawyer/ [3] https://www.justice.gov/jm/jm-9-22000-pretrial-diversion-program [4] https://blanchard.law/pretrial-diversion-is-available-for-federal-charges/ [5] https://www.pagepate.com/federal-accountability-court/

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