Diversion, Mediation or Treatment Instead of Criminal Conviction

If you are charged with a crime, you may have options to avoid a trial (and conviction) through a diversion or similar program.

By , Attorney · Santa Clara University School of Law
Updated March 06, 2023

If you're charged with a crime for the first time, you might not be looking at prison, or even jail time. People who know they won't go to jail often think that a quick guilty plea is the best way to put a nasty experience behind them quickly.

Unfortunately, a conviction on your record could have equally nasty effects on your future. Even if you're eligible to have the conviction expunged at some future date, it will be available to the public until that time, and can influence potential employers or keep you from getting financial aid for college. For many defendants, there are alternatives that will let you walk away without a conviction on your record.

What is Pretrial Diversion?

Many states have pretrial diversion programs, which are a way to "divert" a defendant away from criminal prosecution and toward rehabilitation. Diversion can be a great option when facing criminal charges because it lets the person avoid a conviction.

What Are the Requirements for Diversion?

The procedures for granting diversion vary from state to state and sometimes county to county and court to court. Often, to qualify for diversion, you have to admit your guilt and offer a guilty plea (or no contest) plea. The court will then put your guilty plea on hold while you participate in a program similar to probation for a set period of time. The requirements of diversion might include making restitution to the victim, attending classes, performing community service, and fulfilling any other conditions the court thinks are necessary for rehabilitation.

If you successfully complete the program, the court will dismiss the charge against you and normally will expunge the record of your arrest. This means that you won't be convicted of any crime, and even the record of your arrest will no longer be available to the public.

Can You Get Pretrial Diversion for a Felony?

Usually, diversion is available only for nonviolent crimes, such as theft and drug offenses. That said, some counties have special diversion programs for things like misdemeanor domestic violence (here's an example) because they recognize that early intervention could prevent more serious domestic violence down the line. In some states, diversion is available only for a first offense.

Depending on the state or county, some felonies involving drugs, theft, and similar nonviolent conduct are eligible for pretrial diversion. Also, some states, like California, have enacted laws that allow "pretrial mental health diversion" for any misdemeanor or felony (but not things like murder and rape) committed because of a serious mental health disorder. (More on mental health treatment programs below).

(Cal. Penal Code, § 1001.36 (2023).)

Special Types of Diversion: Treatment Instead of Prosecution

Many jurisdictions have special programs for people who have drug problems or other mental health issues that led them to commit crimes. Ohio, for example, has a program called "intervention in lieu of conviction" (ILC) for certain types of nonviolent crimes that are caused by mental illness or a drug or alcohol problem. And as noted above, California has a diversion program for people who commit crimes due to mental illness, and it also has a separate drug diversion program. Many states have similar types of programs.

Who is Eligible for Drug Diversion or Mental Health Diversion?

Whether someone is eligible for one of these programs depends on the laws of the state or county where the crime happened. Where applicable, they're often available for many kinds of misdemeanors. And in some states, they're available for certain types of felonies.

Some jurisdictions have dedicated drug courts or mental health courts (sometimes called behavioral health courts) to administer these special programs. In other places, the criminal court handles the cases that are in the program.

Usually, these programs operate the same way as traditional diversion: A guilty plea is put on hold while the defendant completes a period of supervision during which they're subject to various conditions. (Note that California's mental health diversion program doesn't make the defendant admit guilt before entering the program). The conditions will specifically include treatment for the defendant's drug or alcohol problem, as well as testing to insure they stay clean and sober for the treatment period. Or, when mental illness is the underlying problem, the court will order the person to participate in a mental health treatment plan. The court might order other conditions as well. When someone completes the treatment and supervision period, their charge is dismissed and the arrest record is sealed.

Private Complaint Mediation

Some jurisdictions offer a mediation program for misdemeanor charges filed by private citizens (in the handful of states that allow everyday people to file criminal charges). If your neighbor charges you with trespassing or damaging his property, for example, the court may be able to refer you to a court mediator who will try to talk both sides into resolving the case without pursuing the criminal charge.

If both sides sign a settlement agreement, the court will dismiss the charge without trial. This option is usually not available for charges filed directly by a police officer, but may be offered for some charges that don't qualify for diversion.

Explore Your Options Before Pleading Guilty

All these programs have conditions and exceptions. Those conditions may be different depending on the county or court the case is in, and they often change. You need to speak with an attorney familiar with the court and programs available in your jurisdiction to find out if you might qualify for one of these alternatives. Don't expect the court to notify you, especially at your first appearance. If you just plead guilty the first time you go to court, you may never know that you could have avoided a conviction.

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