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New Pre-Trial Intervention Program

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August 08, 2003, 15:33
ed klein
New Pre-Trial Intervention Program
I am starting a Pre-Trial Intervention Program from scratch. As this has never been done in our county before, I have nothing to build upon or adapt. Any suggestions, recommendations, input on what is essential to put in the agreement or how to best establish the program?
August 12, 2003, 11:22
ed klein
Thanks to all of you who have called or e-mailed!
August 13, 2003, 08:25
Randal Lee
why don't you let us know how it goes? I have been thinking about starting one.
August 18, 2003, 09:00
Trey Hill
Call the Lubbock CDA at 806-775-1100 & ask for Sarah Mitchell. She ran our "Exchange Program" ffrom its inception. It's a good program with a lot of classes for the accused to take & learn. It can be done in conjunction with probation, or not.
August 30, 2003, 11:17
Chris Taylor
I'm not sure I like the idea, but have found a pretrial diversion program to be a necessary evil. I have a strict, written policy for my program. It only applies to DWI's and Domestic Violence Assault cases. The rationale is that there is deferred adjudication available for all offenses other than DWI. As for the DV cases, defendants can be deported for even a deferred and this particular type of case presents numerous problems of proof even when we "know" the defendant is guilty. I try to take the position on the DWI cases that if it is a weak case, don't file it.
In any event, the basic rules for the DWI pre-trial diversion are as follows:

1. No prior arrest for any Class B or above offense;
2. No concurrent offense (if the person is arrested for DWI and PMJ, he is disqualified);
3. No accident;
4. Must have an attorney. We make them sign a contract, agreeing to numerous terms and condition and feel that legal representation is a must. The other (real) reason is so that when the person breaches the contract, there is an attorney on the hook and no delay in getting a trial setting; and
5. Uniformity. All the contracts are the same. The judge signs off on it, passing the case for a year. The CSCD suppervises the person, etc...
I have been very grateful that I have this strict policy. When the case is reviewed for filing, the attorney makes a note as to whether or not the person qualifies. If the defendant doesn't know about it, we tell him (no secrets). The case is always filed (and therefor printed in the paper) without exception. The written policy has cut down (yet not eliminated) the begging from defense attorneys.

Hope that helps.
August 30, 2003, 15:01
I hate to disagree, and I don't want to sound like I am criticizing any office that has a pretrial diversion program, but I do think that anyone starting such a program should consider the negatives. I strongly feel that a PT diversion program is (a) not sufficiently authorized by law and (b) inconsistent with the role of a prosecutor. You end up being lawman, prosecutor probation officer and judge.

We are elected to decide whether there is sufficient evidence to prosecute. PT diversion is nothing more than a law unto itself with no outside review. That makes me very nervous.
September 01, 2003, 19:32
I have avoided Pre-Trial Diversion like the plague for almost 10 years now. I have always thought of it as a "Pandora's Box" where the solution could become a big roblem itself. However, the new DWI surcharges and the automatic probation on drug SJF's has me reconsidering. The written policy with strict adherence would be a must.
September 02, 2003, 09:24
The Legislature, by jacking up the collateral consequences for various crimes (e.g., sex offenders and drunk drivers), has begun to distort the criminal justice system. You can't create such a rigid structure without creating pressure that must be relieved artificially somewhere else in the system. Surely, anyone looking at the federal sentencing guidelines can see that.
September 03, 2003, 09:57
Terry Breen
The only office I worked in that had an organized Pre-trial diversion program was the Farmington, NM DA's Office. Under NM law, the crook was required to give a written confession in court, which was automatically admissable against him in trial, should he violate the terms of his PTD.

We had all these guidelines as to who was and was not elgible. The def. attys looked at the guidelines as mandates--if a crook met that criteria, well he had a "right" to PTD. I rarely thought the crooks we sent to PTD should have gotten off so easily. Moreover, occassionally there would be someone deserving of PTD who did not meet the guidelines.

I have an unofficial pre-trial diversion program. If I feel the cause of justice is best served by resetting a crook's case for a year, and requiring some community service, followed by dismissal, then I do it. The last crook to get "office probation" from me was an habitual criminal who was caught by our game warden with a .22 poaching at night (felon in poss. of a firearm). While he was out on bond he was working in an industrial complex when a pipeline burst, spewing ammonia gas. My crook ran into the cloud of gas and dragged a man to safety. In the process his lungs were almost destroyed. He probably won't live but a few more years.

This man would not have been elgible under the Farmington rules, or probably anyone else's organized PTD rules, but he was certainly more deserving than some "first time" thief.
September 03, 2003, 10:20
Trey Hill
In our pre-trial diversion program, the defendant enters a contract with us, waives his right to speedy trial and is then supervised by the local probation office for a monthly fee. This is how we avoid being the probation officer too. We've never done this without the defendant being represented by counsel, though.
September 03, 2003, 11:09
So, who decides what justifies later prosecuting the case? That is the potential problem. Seems to me that pretrial diversion creates a contract between the prosecutor and the defendant with no oversight. At least a plea bargain is announced in open court and approved by an impartial judge.

In addition, there is a danger in focusing on certain offenses. I would think that MADD might have a strong reaction against a local pretrial diversion for DWI cases. That organization was largely created to oppose what was perceived as soft prosecution of intoxication offenses.

[This message was edited by John Bradley on 09-03-03 at .]
September 03, 2003, 16:49
Ken Sparks
I use pre-trial diversion mainly in misdemeanor possession of marihuana cases for young kids who are in high school or college. They sign an agreement, which includes all the regular rules of probation, a lot of community service hours, a plea memorandum which is admissible upon violation of the rules of probation, pay the statutory maximun of $500 to the probation department, and are supervised by a probation officer.

I go forward on the case if there is a violation of the rules of probation just as I would go forward on a motion to revoke or adjudicate: same standard.

I think that giving a second chance to a young, immature kid who is a first offender has worked well in my county. We require the defendant's attorney to prepare the equivalent of a presentence investigation report on the defendant and we require a personal interview with the defendant. We say yes or no depending on the circumstances.
May 16, 2006, 17:15
I pulled up this old thread on pre-trial diversion because one of my judges would like to start a program through our probation department. Since this thread is almost 3 years old, I'd sure appreciate an update on the success (or not) of any of your similar programs as well as any advice/forms, etc., on getting one going. 936-336-4609 or Thanks.
May 17, 2006, 11:44
Ken Sparks
I would adopt a policy in advance to control eligibility for the program. Otherwise it will be the first thing out of the mouth of every defense attorney on every case.

I reserve mine for misdemeanor offenders who are in high school or college. I have them submit a lot of documentation to help me make my decision. I have a personal interview with them; tattoos and nose rings are a disqualification!

I have e-mailed you a copy of my policy and forms.
May 17, 2006, 14:07
We have one and try to reserve it for youthfull offenders.

My question to those of you who do, is do you look at and consider their juvenile records before extending the offer? We're small enough and I've been here long enough now to where I'm starting to see the juvi graduates popping up in County Court. Having dealt with alot of them personally, I have a pretty good idea as to whether they are going to be able to do it before they walk through the door.

So, does your list of criteria and qualifications include no juvi record or does it look at the juvi record, if any?
May 18, 2006, 08:07
Thanks for the info and the form and policies. Does anyone use such a program for felonies? If so, what are your guidelines and policies in that respect? Thanks.
May 18, 2006, 15:42
Ken Sparks
JMH, e-mail me at and I will send you a copy of my policy.
May 18, 2006, 16:12
Thanks Ken.

One other thing that I personally do, I stress it to the Def. Atty and I make sure to write it down in big bold ink in the file, that if the Def. busts out, then Def. Adjud. is not going to be offered (there might be an exception made if for instance the Def. missed b/c of $$$ issues and showed good reasons why - ain't got no job, yo, Is NOT a good reason. Momma died and I've been taking care of my little sister and brother tends to be better).
I make a sweeter Def. Adj. offer than I might and tell them if they (meaning the defendant) aren't sure they can do it, then they better think long and hard. Of course, that goes back to whether or not they have the maturity level and ability to comprehend the consequences.
May 21, 2006, 14:22
It appears that most pre-trial diversions entail an agreed plea that kicks in if the defendant does not complete the program. Why not leave that open-ended with the full range of punishment available to a judge? Then the defendant goes into the program knowing that he had better take advantage of the pre-trial diversion and keep his nose clean and complete his obligations. He will have already stipulated to his guilt as well as waived a jury and will also know that the trial judge has the max available if he goofs up. Sounds like a pretty good carrot and stick approach to me. We will be generally dealing with offenses and defendants that do not warrant the maximum punishment but the ability to come down hard on those who don't complete their end of the deal is certainly available. That possible end result should also make the concept more palatable to the public as well. Any thoughts?
May 21, 2006, 19:26
Mike, you've described something we used to recognize as deferred adjudication. A shame that lawmakers have tinkered with it to its death.

I continue to believe it is a deep mistake for prosecutors to adopt any program that makes them prosecutor and judge over a case.