Most if not all states have programs for first time offenders called diversionary programs. The purpose of these programs is to allow first time offenders an opportunity to get their lives back on track without the stigma of a criminal conviction. Once one successfully completes the diversion program all charges are dismissed. New Jersey has two diversion programs, the Pre-Trial Intervention Program and the Conditional Discharge Program. While each program serves the same purpose, the differences in each program can lead to interesting strategic choices.
The Pre-Trial Intervention Program ("PTI") applies exclusively to felony or indictable matters. Of the four levels of felonies in New Jersey, generally only those individuals charged with third or fourth degree crimes (the lowest grade felonies) are eligible for PTI. The Conditional Discharge Program (also known as Section 36) applies only to misdemeanor or disorderly persons drug offenses.
In order to understand the strategic choices associated with diversions one first has to appreciate how felony charges are handled by prosecutors. Felony charges in New Jersey and in most states are generally screened by the county prosecutor's office where the crime is alleged to have occurred. During the screening process the prosecutor's office decides whether to "take the case in" and prosecute the case as a felony in Superior Court or to "downgrade" the felony and return it to be prosecuted as a misdemeanor in Municipal Court. This discretion enjoyed by the prosecutor is known as "prosecutorial discretion." The downgrade decision is based upon a number of factors including the strength of the proofs supporting the charge, the prior criminal history of the accused and simply whether the prosecution believes the case merits prosecution as a felony.
A good example of the discretion exercised by prosecutors can be seen in the case of Julian Assange, the founder of WikiLeaks. Mr. Assange was initially charged with the rape of two women in Sweden. These charges were later downgraded to that of "molestation" a minor offense in Sweden. The decision to downgrade the charges was later reversed when the chief state prosecutor, Marianne Ny, overruled a subordinate prosecutor in Stockholm and restored the original allegations of rape against Mr. Assange.
The Strategic Choice.
The differences between New Jersey's diversionary programs can in some circumstances create interesting choices. As a general rule, it is better to face misdemeanor charges than it is to face felony charges simply because one's exposure to jail is less on a misdemeanor charge than it is on a felony charge. In addition, a felony charge carries with it a much greater stigma in our society.
A simple example can illustrate the strategic choices that can arise when considering a diversion. An individual charged with stealing a $210.00 bathing suit in New Jersey would likely be charged with a fourth degree felony. If this individual was a first time offender, given the fact that the value of the theft is only slightly over the $200.00 threshold for a felony theft in New Jersey (thefts under $200.00 are considered misdemeanors in New Jersey) it is very possible that a prosecutor would consider downgrading the charge to a misdemeanor. At first blush this would appear to be a good result because the accused would then only have to worry about a misdemeanor charge prosecuted in Municipal Court rather than a felony charge prosecuted in Superior Court. However, once the matter is downgraded the chances of securing a dismissal are limited to the prosecutor dismissing the charge outright (which is extremely rare) or being found not guilty after trial. Remember, PTI only applies to felony charges and the Conditional Discharge only applies to misdemeanor drug charges. Because the downgraded theft charge is a misdemeanor theft, the accused would not be eligible for either the PTI Program or the Conditional Discharge Program.
While the "downgrade" decision lies exclusively with the prosecutor, a competent criminal defense attorney, provided he is retained prior to or shortly after the accused is charged, can sometimes influence the prosecutor's decision by providing the prosecution with information about the facts and circumstances surrounding the alleged crime and by providing information about the background of the accused. In addition, a criminal defense attorney, once again, provided he is retained early, can request that a charge not be downgraded with the understanding that the prosecutor will not object to the accused's entry into the PTI Program. These strategic decisions can have a profound effect upon the course of a prosecution and on the course of the accused's life.
While the decision to downgrade lies exclusively with the prosecutor, the prosecutor's decision can in some instances be influenced or even changed, provided competent counsel understands the law, his client's needs and provided he is retained early.
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"Keep in mind that nothing contained in this article should be considered legal advice. The law can and often does change. If you have a specific legal issue or problem, consult an attorney."