Diversion is intended to relieve overburdened courts and crowded jails, and to spare low-risk offenders from the devastating consequences of a criminal record. It mostly applies to nonviolent cases that make up the vast majority of crimes — offenses like shoplifting, drug possession and theft. There are now diversion programs in almost every state.But an examination by The New York Times found that in many places, only people with money could afford a second chance. Though diversion was introduced as a money-saving reform, some jurisdictions quickly turned it into a source of revenue.
Prosecutors exert almost total control over diversion, deciding who deserves mercy and at what price, The Times found. The prosecutors who grant diversion often benefit directly from the fees, which vary widely from town to town and can reach $5,000 for a single offense. In a country where 27 million households make less than $25,000 a year, even $500 can be prohibitive.Diversion, interviews and case records show, 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 — one 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.
Because diversion is considered a privilege, not a right, the district attorney’s decision is almost always final and those who are rejected have no way to appeal.And because prosecutors are usually not required to report on their programs and many diversion agreements are not filed in court, there is little quantifiable data on fees, success rates, recidivism or even who is rejected. A few studies, including a recent Department of Justice examination of the Memphis juvenile court system, suggest that whites are far more likely to get diversion than blacks.
In Atlanta, Ms. Willis’s diversion was overseen by a private company that said about one in four of its cases was returned to court, often for failure to pay.