April 15, 2013

The Division of Criminal Justice respectfully recommends that the Committee REJECT S.B. No. 1165, An Act Concerning Diversionary Programs. While the Division fully understands and supports the underlying intent of pretrial diversionary programs, we are concerned that the programs may no longer be serving that intent and are, in fact, becoming simply a means for quickly disposing of business.

Simply put, the Division feels that this bill affords individuals who are committing crimes too many opportunities to avoid a criminal conviction. S.B. No. 1165 is yet another example of an emerging trend to remove any and all consequences or accountability for engaging in criminal behavior. The idea of giving someone a second chance through a diversionary program is fast becoming a revolving door.

Take, for example, a person arrested for a possessory drug offense. He or she can avoid a conviction by entering the Pretrial Community Service Labor Program, the Pretrial Drug Education Program, and if alcohol or drug dependent and eligible for treatment what is commonly referred to as the CADAC program. Significantly, a person can use not only one but all three of those programs and can have a case dismissed under the CADAC program twice. Other programs available to the persons arrested for crimes include the youthful offender program, the accelerated rehabilitation program, the pretrial supervised diversionary program for persons with psychiatric disabilities and veterans, the pretrial alcohol education program, the school violence prevention program, and the pretrial family violence education program.

S.B. No. 1165 would increase the already large number of times a person could be arrested without facing a conviction to an almost absurd amount by allowing the person to use the community service labor program a second time, allowing a person to use the pretrial drug education program once every ten years, and allowing a student to use the school violence prevention program once every two years. This is simply too much.

If there is any action to be taken with regard to diversionary programs, the Division of Criminal Justice would respectfully suggest that it would be most appropriate to examine all of these programs to determine whether they are, in fact, producing measurable positive results. Legitimate questions can be asked whether the preponderance of these programs has resulted in a system where cases that at one time would have been nolled – and rightfully so – are now being resolved instead with a referral to a diversionary program. The criminal justice system and the public should be asking whether the many programs already in place are in fact reducing recidivism and generating positive results both for the participants and society as a whole. The increased frequency with which bills are being proposed to allow individuals to take advantage of these programs on a repeated basis might suggest otherwise. A comprehensive, independent and objective study would seem in order before any expansion of these programs is considered. The Legislative Program Review and Investigations Committee might be the appropriate entity to undertake such a study.

On a final note, the Division would point out that S.B. No. 1165 would prevent a judge from having clients of the public defender perform community service to pay for the programs. The fact that a person cannot pay for a lawyer does not mean that the person can’t pay a $35 application fee for accelerated rehabilitation or many of the other fees involved with diversionary programs. Judges should be allowed the discretion to decide when to require community service.

In conclusion, the Division of Criminal Justice wishes to express its appreciation to the Committee for this opportunity to provide input on this matter. We would be happy to provide any additional information the Committee might require or to answer any questions you might have. Thank you.