Missing the Mark

By: Joseph Winning 

Despite wide-ranging criticisms from legal academics and practitioners, the prevalence of pretrial diversion programs in the United States has increased considerably since its initial stages of development in the 1960s. Pretrial diversion programs allow prosecutors to defer or dismiss criminal charges pending against an individual provided that the individual complies with and successfully completes the requirements of the ordered program.

Thanks to the implementation of standardized guidelines geared toward determining eligibility, much of the discretion that originally rested with prosecutors has been restructured to ensure more predictable outcomes based on prior history and the current charges pending. Despite this guidelines approach, however, there still remains a wide discrepancy in the availability of diversion programs for minorities when compared to their white counterparts. In an article by Traci Schlesinger[1], the lack of an impact that these standardized guidelines have had on eliminating considerations of race in determining eligibility for pretrial diversion programs is made glaringly clear. The analysis is based on three different models which investigate the effect of race on admittance into diversion programs. Model 1 reveals that “[a]mong defendants charged with felony offenses in counties and years with operating pretrial diversion programs, black and ‘other race’ defendants have odds of receiving pretrial diversion that are 42 and 30 percent lower than those of white defendants, respectively.” Beyond the broad category of felony offenses generally, Model 2 looks specifically at candidates for diversion who committed similar offenses and explains that “[b]lack defendants have odds of receiving pretrial diversion that are 44 percent lower than those of white defendants charged with similar offenses.” Finally, Model 3, which compared the outcomes of candidates who had similar prior records, shows that “black, Latino, and Asian and Native American defendants have odds of receiving pretrial diversion that are 28, 13, and 31 percent lower, respectively, than those of white defendants with similar legal characteristics.”

With the effects of state funded diversion programs working so dramatically to the advantage of one segment of the population, a fresh reformation of the system is due. Perhaps the answer is stricter black-letter guidelines which mandate, rather than permit, admittance into diversion programs. Such strict principles would void the discretionary power wielded by prosecutors which has lead to this gaping disparity in treatment of racial minorities. Or maybe the answer is eradication of these programs all together. Whatever the best approach may be, the current model is clearly missing the mark.


[1] Traci Schlesinger, Racial Disparities in Pretrial Diversions: An Analysis of Outcomes Among Men Charged With Felonies and Processed in State Courts, Race and Justice, (April 5, 2013), available at http://raj.sagepub.com/content/3/3/210.full.pdf+html.


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