"Incentivizing Diversion"

The title of this post is the title of this new paper authored by Christina Miller and just posted on SSRN.  Here is its abstract:

Jill, living with addiction and arrested with heroin, appears before a judge the day after her arrest.  With the prosecutor’s agreement, the judge offers her entry into a treatment-based diversion program — a pathway that promises dismissal of the charge and no further court involvement.  Diversion programs are designed to offer accused individuals an alternative to prosecution and punishment, aiming to avoid probation, incarceration, and collateral consequences.  However, an analysis of state diversion statutes reveals structural flaws: burdensome requirements, limited protections of rights, and punitive measures that deter participation and undermine diversion’s potential.

By creating statutory diversion programs as a tool to conserve judicial resources, address the root causes of crime, and reduce recidivism, legislatures intended to avoid a formal finding of guilt, preserve opportunities for employment, housing, and benefits, and address racial and socioeconomic disparities arising from over-policing and prosecution of minor offenses.  Despite these goals, many diversion programs mirror traditional prosecution and punishment. Participants often face restrictive conditions, limited procedural rights, and harsh consequences for noncompliance — particularly if decisions about participation must be made immediately after arrest or arraignment.  Diversion can feel coercive and punitive, especially when individuals are required to waive constitutional rights or cannot reenter the program after a violation.  Some statutory schemes even penalize people for wanting to remain silent about past criminal acts.

These structural deficiencies make diversion unattractive to many accused persons, particularly those who distrust the criminal adjudicative and sentencing systems or need more time or support to comply with program requirements.  If diversion is to function as a meaningful alternative, legislatures must address these barriers and clearly differentiate diversion from traditional adjudication and sentencing.

This Article draws on a national analysis of diversion statutes to recommend four legislative reforms: (1) allowing individuals to assert pretrial rights while still pursuing diversion; (2) preserving Fifth Amendment protections throughout diversion proceedings; (3) extending the window in which the accused may opt into diversion; and (4) offering second chances after a violation.  Additional reforms — such as pre-arraignment diversion, automatic expungement or sealing, and procedural clarity — can further incentivize participation.

Part I traces the development of legislative diversion and its role in addressing the complex roots of criminal behavior while serving state interests.  Part II compares diversion and traditional adjudication and sentencing procedures and explores structural disincentives.  Part III proposes legislative strategies to improve diversion’s accessibility and effectiveness.  By removing statutory obstacles and enhancing procedural fairness, legislatures can transform diversion into a genuinely rehabilitative and restorative tool available to more persons by earning the trust of the people it is designed to serve.