Pre-trial diversion from the justice system is intended to relieve overburdened courts and crowded jails, and to spare low-risk offenders from the devastating consequences of a criminal record. It is available mostly in nonviolent cases that make up the vast majority of crimes, like shoplifting, drug possession, and theft. There are diversion programs in almost every state. In many places, only people with money can afford a second chance by using the procedure. Though diversion was introduced as a money-saving reform, some jurisdictions quickly turned it into a source of revenue, the New York Times reports. Prosecutors control most diversion, deciding who deserves mercy and at what price. Prosecutors who grant diversion often benefit directly from the fees, which vary widely from place to place and can reach $5,000 for a single offense.
Diversion can be revoked for failure to pay, or never even offered to defendants deemed too poor to afford it. A prosecutor in Ohio said he rejected applicants if he thought they wouldn’t be able to pay restitution within a time limit that he imposed. “To tell somebody that if you can pay for this, you can get your charges dismissed, but if you are poor you are going to go through the system? That’s completely unfair,” said Mark Kammerer, who runs diversion programs for the Cook County state’s attorney in Chicago, where defendants are not charged a fee. The Times focused on adult diversion programs run by prosecutors, not drug courts or mental health courts where a judge is in charge. The Times gathered information, statutes and fee schedules on 225 diversion programs in 37 states and interviewed more than 150 prosecutors, defense lawyers, defendants and experts. Because prosecutors have wide latitude to design the programs, different jurisdictions have different rules, resulting in substantial inequities for defendants.