Criminal Justice Reform Bill: Changes to Diversion Programs

On April 13, 2018, Massachusetts Governor Charlie Baker signed into law a new bill that made a number of important changes to the Massachusetts Criminal Justice System. The attorneys at Coughlin Law Group paid close attention in order to best serve our clients. One important change for criminal defendants involves the expansion of the availability of pre-trial diversion programs. Pre-trial diversion programs allow for eligible people charged with certain crimes to avoid the criminal justice process through involvement in non-judicial rehabilitative or community service programs. The new law expands changes access to these programs in a few ways.

Required Establishment of Diversion Programs through the District Attorney’s Office

The enactment of this bill now requires that every District Attorney’s office establish pre-arraignment diversion programs. These programs must be established by July 12, 2018. Programs must be established for the following groups of people:

• Veterans and active duty military
• People with substance abuse disorders
• People with mental illnesses

These programs, once established, will allow people charged with eligible crimes to avoid arraignment, and thus be spared from a criminal record.

Elimination of Age Requirements

Prior to this bill, only defendants between the ages of 18 and 22 years of age were eligible for pre-trial diversion. Under the new law, there are no age limits. However the other eligibility requirements that previously existed remain. For example, a person will not eligible if he or she has previous convictions, outstanding warrants, or pending criminal cases. If you are charged with a crime, regardless of your age, contact an experienced criminal defense attorney who can determine if you are eligible to participate in a pre-trial diversion program.

Elimination of Required Approval of Programs by Probation Department

Along with the expansion of people eligible for pre-trial diversion, the new bill has loosened the requirements for the programs which may qualify, thereby making it easier for people to access qualifying programs. Specifically, the law will no longer require that the Probation Department specifically approve or certify every program. The Court will still be required to approve of any specific program, and the probation department will still supervise and direct the defendant into such programs.

Victim Recommendations

One additional change which could have varying consequences for potential defendant’s who are screened for pre-trial diversion, will be the impact of the recommendations of alleged victims. Once a person is deemed eligible for diversion, and a diversion program presents a report to the Court for diversion, then a judge must decide whether diversion is appropriate. Previously, the judge would hear arguments from the defendant and the prosecution for or against diversion in order to make this decision. Under the new law, an alleged victim of the charged crime will also be permitted to make a recommendation as to whether the potential defendant should be granted pre-trial diversion. This additional piece of information could have a positive or negative effect on a person’s likelihood of being given pre-trial diversion. If you are charged with a crime, and there is an alleged victim, contact a criminal defense attorney to help gauge the best approach for your particular circumstance.

Enumeration of Eligible and Ineligible Offenses

The new law has also amended the charges that are eligible for diversion. Many serious offenses are now excluded from being resolved through diversion programs. For example any charge where the maximum penalty is over five years of incarceration cannot be resolved through diversion. Moreover, the law lists numerous other serious misdemeanor and felony offenses which cannot be resolved through pre-trial diversion. If charged with a crime, contact a criminal defense attorney familiar with the new law in order to find out if pre-trial diversion would apply to your particular charge.