What is a Diversion?
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 three diversion programs at the adult level, the Pre-Trial Intervention Program ("PTI"), the Conditional Discharge Program and the Conditional Dismissal 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, only those individuals charged with third or fourth degree crimes (the lowest grade felonies) are generally eligible for PTI. The Conditional Discharge Program (also known as Section 36) applies only to misdemeanor or disorderly persons drug offenses. A new diversion program in New Jersey, the Conditional Dismissal Program, became effective on January 4, 2014. This program applies to certain disorderly persons offenses and petty disorderly persons offenses (misdemeanors) other than drug crimes.
What is Prosecutorial Discretion?
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 an indictable (felony) in Superior Court or to "downgrade" the indictable offense (felony) and return it to be prosecuted as a disorderly persons or a petty disorderly persons offense (misdemeanor) in Municipal Court. This discretion enjoyed by the prosecutor is known as "prosecutorial discretion." While there are other aspects of prosecutorial discretion, for purposes of this article we will be focusing on the "downgrade." 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.
Are There Any Strategic Decisions Surrounding the Downgrade Decision?
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. A man gets into an argument with his elderly father and strikes him, breaking his nose. The man has no criminal history, there are no witnesses to the assault and the elderly father has alzheimer's and can't remember anything. In New Jersey the son would likely be charged with a second degree felony, aggravated assault. If the accused was a first time offender, given there are no witnesses and given the fact that the father can't remember the incident, it is very possible that a prosecutor would consider downgrading the charge to a disorderly persons (misdemeanor) simple assault charge. 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 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 simple assault charge is a misdemeanor, the accused would not be eligible for either the PTI Program or the Conditional Discharge Program. This leaves the Conditional Dismissal Program. The Conditional Dismissal Program specifically bars admission to individuals charged with an offenses against the elderly. In this example the accused would not be eligible for the Conditional Dismissal Program and would be forced to either negotiate a plea bargain or go to trial.
Can the Downgrade Decision be Influenced?
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. In the above example, there is a strong possibility that a prosecutor would consider admission to the PTI Program rather than downgrading the charge. This is arguably a better result than a downgrade where no diversion option exists.
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.