The Pretrial Diversion Program originates from the United States Department of Justice and is operated in each Judicial District under the authority of the United States Attorney's Office.
The Pretrial Services Office functions as the investigative arm of the United States Attorney, whereby a background investigation is conducted on a candidate who has been referred by the United States Attorney to Pretrial Services to determine the applicant's suitability for entry into the Pretrial Diversion Program.
Pretrial Services provides supervision for divertees who have entered the program following the signing of the Pretrial Diversion Agreement.
Philosophically and functionally, Pretrial Diversion gives the Criminal Justice System the opportunity to intervene before the cycle of crime and recidivism has gone too far. It is an alternative to an otherwise valid prosecution, consensual in nature (consent of the United States Attorney and the accused) and eligibility rests within the sole and exclusive discretion of the United States Attorney.
In that regard, as a prerequisite to acceptance into the Pretrial Diversion Program, the accused must formally waive the right to a speedy trial under provisions of the 6th Amendment to the United States Constitution and Rule 48 of the Federal Rules of Criminal Procedure (Speedy Trial and right to have an Indictment presented to a Grand Jury).
Basically, Pretrial Diversion is a community based structured correctional program which can provide participants, where applicable, with a broad range of human services under the constructive supervision of the Pretrial Services Agency. Successful participants will have their charges dismissed, while unsuccessful participants are returned for prosecution.
The program seeks to achieve six (6) major objectives :
- Enhance the deterrent effect of Criminal Law by accelerating the disposition of cases.
- Reduce recidivism.
- Reduce public expense by providing correctional services at the lowest possible cost while reducing the number of prosecutions.
- Give first offenders the opportunity to avoid both prosecution and a conviction.
- Relieve the overburdened docket system, thus giving Judicial Officers more time for civil and criminal cases.
Traditionally, Pretrial Diversion has been defined as follows:
Pretrial Diversion is an alternative to prosecution which seeks to divert offenders from traditional criminal justice processing into a program of supervision and services administered by the U.S. Pretrial Services. In the majority of cases, offenders are diverted at the pre-charge stage. Participants who successfully complete the program will not be charged or, if charged, have the charges against them dismissed; unsuccessful participants are returned for prosecution.
Within the Department of Justice there was a program known as the Brooklyn Plan which was utilized from 1946-1974 as an alternative to prosecuting individuals under the Federal Juvenile Delinquency Act. The Plan was used where the violation was minor, the juvenile's background good, and the prospect of rehabilitation favorable. In 1974, an alternative program was designed to replace the Brooklyn Plan in that it offered diversion to adult offenders.
In this District, diversion had its inception in 1976 as a function of the Probation Department. In 1978, the Pretrial Services Agency accepted responsibility for the program and entered into an operating agreement with the U.S. Attorney's Office. The procedural framework established at that time has essentially remained the same.
The major objectives of Pretrial Diversion are:
- To prevent future criminal activity among certain offenders against whom prosecutable cases exist by diverting them from traditional processing into community supervision and services.
- To save prospective and judicial resources for concentration on major cases.
- To provide, where appropriate, a vehicle for restitution to communities and victims of crime
The decision to divert is made by the case assistant United States attorney United States attorney in conjunction with the unit chief. Generally, the eligibility criteria were established in 1982.
A letter is also sent to Pretrial Services notifying them of the referral. Included in the letter is a copy of the agent's report with a request that it not be disclosed to the divertee or defense counsel.
During the interview, the candidate is required to fill out a consent form allowing Pretrial Services the opportunity to fully investigate his background. The interview is comprehensive and the divertee must admit culpability. Fingerprints are taken by the Marshal's Office. If the Pretrial Services Agency accepts the candidate, the assistant United States attorney notifies defense counsel and sets up the signing of the Agreement as part of the Magistrate/Judge's regular duty call.
The Agreement for Pretrial Diversion is a standard form that contains several conditions and allows for the setting of special conditions. The regular conditions include:
It is the special conditions provision that allows the assistant United States attorney the opportunity to structure the program to the circumstances of the offense. The most common special condition is restitution, which is especially important in fraud offenses. This is often accomplished with the use of a promissory note. Pretrial Services enforces restitution for private victims. The Claims and Judgment Litigation Unit of the United States Attorney's Office collects payments for defrauded U.S. Government Agencies. Other special conditions include community services and substance abuse treatment programs. Assistants are urged to be creative.
- The divertee is not to violate any local, state, or federal law.
- The divertee must work or go to school.
- The divertee must continue to live in the district.
- The divertee must report to Pretrial Services Agency as directed.
Pretrial Diversion can be imposed for up to two years. An Updated Summary is sent to the assistant United States attorney if it appears that the candidate will not complete the term successfully. A divertee can be terminated for cause but requires consultation with the assistant United States attorney assigned to the case. The Agreement requires the defendant to waive any speedy trial issue related to the time spent on diversion. If the individual satisfactorily completes the program, the assistant United States attorney will receive a letter from Pretrial Services known as Termination with Certification.
All Criminal Division Unit's, with the exception of Controlled Substances, utilizes Pretrial Diversion.
General Crimes Unit
- Misapplication of Bank/Saving and Loan Funds.
- Minor postal-employee violations such as theft where the defendant has resigned and agrees not to seek reinstatement.
- Other offenses where the case has weak jury appeal but the defendant should pay restitution.
Economic Crime Unit
- Bank Fraud and embezzlement.
- Program fraud such as Health and Human Services, Small Business Administration, and Housing and Urban Development.
- Credit Card fraud.
- Copyright infringement and counterfeit goods.
The Special Prosecution Unit will consider diverting any financial crime in their jurisdiction where the loss is small.
An assistant United States attorney may refer a candidate for a Pretrial Diversion investigation, without the need for approval by a supervisor, if the matter meets the following criteria:
- The assistant United States attorney is satisfied that the case is one he or she would and could successfully prosecute.
- The offense is not one which would, under office or department guidelines, be diverted to the State for prosecution.
- The prospective divertee is not accused of an offense related to national security or foreign affairs.
- The prospective divertee is not accused of an offense involving on of the highly sensitive statutes cited in Appendix A, or Title 26 tax offense.
- The prospective divertee is not an informant at the present time and will not be acting as an informant during any prospective period of diversion, nor at its completion.
- The alleged offense does not involve actual violence, the use of a deadly weapon or the sale of controlled substances.
- A drug and/or alcohol abuser is not automatically precluded from consideration into the Diversion Program.
- No firm maximum amount of restitution applies for diversion referrals.
Objective of Program
The Pretrial Diversion Program in the Eastern District of Michigan will continue to provide an alternative to criminal prosecution for selected offenders by placing them in a program of supervision and services administered by the Pretrial Services Agency. The objectives of the program are to preserve prosecutorial and judicial resources for serious and priority criminal prosecutions and to provide alternative treatment at an early stage in the criminal justice process for certain individuals for whom traditional prosecution is less effective and less beneficial.