Pretrial Diversion and Non-Prosecution

Attorney Kevin Barron on Pretrial Diversion and Non-Prosecution Agreements

PRETRIAL DIVERSION - Avoiding criminal charges. American criminal justice gives sweeping authority to prosecutors in declining or instituting criminal charges. Pretrial diversion is an alternative to prosecution by diverting certain defendants into a program of supervision and services administered by the U.S. Probation without convicting the defendant of any offense. Most defendants are diverted at the pre-charge stage. Participants who successfully complete the program will not be charged or, if charged, will have the charges against them dismissed.

The purpose of pretrial diversion is to prevent future criminal activity by diverting defendants from criminal cases into community supervision and services. Pretrial diversion saves prosecutorial and judicial resources for concentration on more important cases; where appropriate, a defendant can make restitution to communities and victims of crime. The period of supervision does not exceed 18 months and may be reduced.

Note these exceptions. The procedure is not available where: defendant, under Department of Justice guidelines, should be diverted to the State for prosecution; defendant has two or more prior felony convictions; defendant is an addict; defendant is a public official or former public official accused of an offense arising out of an alleged violation of a public trust; or the defendant is accused of an offense related to national security or foreign affairs. The pretrial diversion procedure is not used often.

NON-PROSECUTION AGREEMENTS - Sometimes the government agrees not to prosecute in exchange for helping police and becoming a government witness. According the the United States Attorney’s Manual, “the attorney for the government may, with supervisory approval, enter into a non-prosecution agreement in exchange for a person's cooperation when, ...the person's timely cooperation appears to be necessary to the public interest and other means...would not be effective.” The defendant needs to weigh the risks and benefits of an agreement to cooperate. The benefits of freedom from criminal prosecution and a criminal history are self-explanatory. There are, however, drawbacks to measure from each individual perspective. Partial compliance, incomplete disclosures or a simply having change of heart will leave the defendant in a worse position than never having struck such a bargain. Moreover, innocent persons and persons with marginal illegal involvement may want as little criminal justice involvement as possible. Sometimes a defendant is wiser to focus on his case alone and to avoid the dangers of further contact with illegal groups and activities.