What is diversion under 276A?
Pre-trial diversion in Massachusetts is an alternative to the traditional criminal prosecution track. It allows certain clients to avoid prosecution through successful completion of an approved program. The probation department no longer needs to certify and approve programs to which clients may be diverted (part of the Act Relative to Criminal Justice Reform and The Act Implementing the Joint Recommendations of the Massachusetts Criminal Justice Review).
So, is anyone eligible for diversion?
Unfortunately, no. While the new law does eliminate the age restriction for diversion (so an adult of any age can be diverted if otherwise eligible), to be eligible for diversion, clients must not have previously been convicted of a crime in any criminal court proceeding after having reached the age of 18, and cannot have any outstanding warrants, continuances, appeals or criminal cases pending in any court of the Commonwealth, any other state or the United States. Also, a client is not eligible for diversion in cases of certain excluded offenses:
- Any offense in c. 265, except assault and battery pursuant to G.L. c. 265, § 13A(a)
- Any offense in c. 119 or c. 268A
- Any offense for which a penalty of incarceration greater than five years may be imposed
- Any offense for which there is a minimum term penalty of incarceration or which may not be continued without a finding or placed on file
- Any offense which is ineligible for decriminalization pursuant to G.L. c. 277, § 70C, except for assault and battery in violation of G.L. c. 265, § 13A(a). See attached “Offenses Ineligible for Decriminalization.”
What sort of programs would I be looking at?
If eligible, clients can be diverted to any program of community supervision and services including, but not limited to, medical, educational, vocational, social, substance use disorder treatment and psychological services, corrective and preventive guidance, training, performance of community service work, counseling, provision for residence in a halfway house or other suitable placement, and other rehabilitative services designed to protect the public and benefit the individual provided the court receives a recommendation from a program that he would, in light of the capacities of and guidelines governing it, benefit from participation in said program. Under G.L. c. 276A, section 10, military veterans, active service members, and those who have a history of military service may be eligible for diversion. The United States Department of Veteran Affairs and the Massachusetts Department of Veteran Services provide assessments of defendants and program recommendations.
Sounds great Bob, are there any downsides?
Depending on how you look at it, and your individual circumstances, diversion may or may not be the right option for you. While it does help clients avoid criminal prosecution, the terms and conditions of these programs can be quite rigorous (not to mention expensive). If you are accepted into a diversion program you will have to check in with the court or similarly situated authority much more often than you would if you pursued a defense along the traditional criminal track. Ultimately as the client, it will be your decision (after informed consultation with your attorney, of course) which route is best to pursue. If the case is diverted to a program, the charges will be dismissed upon successful completion of the program and there will be no entry on your criminal record. If, however, a client fails to complete the program or violates its terms, a court hearing will be held. If the judge finds that the client violated a term of the program or was charged with another crime, the client’s case will go forward through the traditional criminal court system (where the prosecutors will now be less likely to offer us a favorable deal).
Can my case be diverted at any time during the process?
No. Generally speaking, clients must request pre-trial diversion prior to arraignment. Your attorney may ask the court to continue the arraignment to prepare a request for pre-trial diversion, and any client who is qualified for consideration for pre-trial diversion may be afforded a 14-day continuance. This is why it is critical to contact a criminal defense attorney as soon as possible to preserve your rights and your record. If you believe you are eligible for diversion but “missed the window” to move for it at your arraignment, call Bob today to discuss your options.