Not All Diversion Programs Are Created Equal

While there has been a state statutory regime addressing pretrial diversion agreements since 2019, such agreements have existed in many forms in many places across the state of Georgia for decades. At base, they are all contractual agreements between the State (prosecution) and the Defendant. Most provide for dismissal if all the program requirements are met, although  some may only provide for a plea to reduced offenses.

Some courts require that they be involved and sign off on such agreement. Court approval of such agreements may relieve the bondsperson of responsibility for the defendant going forward from that point. Prudent courts would do well to allow such agreements to simply be between the prosecution and the defense.

Some courts or circuits require guilty pleas as a condition precedent to entry into the program. These programs need to be viewed with some skepticism. Georgia Department of Drivers Services will treat a guilty plea to a Title 40 offense, if reported, as a conviction even if there is no court adjudication. A guilty plea may have immigration consequences to non-citizens even if the charges are dismissed or reduced.

Non-Statutory Conforming Programs Have Varying Rules

Programs that do not conform to the 2019 statutory framework are a mishmash and have no consistent rules. At base, they are an exercise of prosecutorial discretion to prosecute or not to prosecute a particular criminal offense.

Some prosecutors opt not to have any type of pretrial diversion program. Most of those still do resolve some cases by dead dockets for periods of time with eventual dismissal if there are no further incidents. Given the utility of such agreements in requiring remedial acts by the defendants, it seems like prosecutors who choose not to have a pretrial diversion program are choosing to leave a tool out of their toolbox. Of course, those prosecutors also tend to think that their only tool is a hammer, anyway.

Statutory Conforming Programs Avoid Potential Problems

OCGA §  15-13-5 protects criminal defendants from court officers or prosecutors who might demand fees or costs prior to conviction. Statutory pretrial diversion programs are not a violation of this statute. That is important because violators of that statute may be committing a misdemeanor.

OCGA §  15-18-26 criminalizes the taking or agreeing to take of money or other valuable things not authorized by law by a district attorney to present or not present a case to the grand jury or to postpone or delay a state case. Statutory pretrial diversion programs are not a violation of this statute.

Statutory Programs Have Some Basic Requirements

Such programs are an alternative to prosecuting offenders in the criminal justice system. These programs can be implemented in any court that handles criminal offenses in the state of Georgia.  The controlling statute is OCGA §  15-18-80.

The Prosecutor Determines Entry According to Guidelines

The prosecutor implementing such a program should develop written guidelines addressing entry and  conditions.

Regardless of the written guidelines, prosecutors are directed not to accept an offender into the program for an offense for which the law provides a mandatory minimum sentence of incarceration or imprisonment that cannot be suspended, probated, or deferred. It is worth noting that this is a hurdle that is easy for a prosecutor to avoid. If they find the evidence does not support the particular offense that has such mandatory minimums, they can dismiss that charge and place the remaining charges into the pretrial program.

In determining entry, the guidelines should include consideration of the nature of the crime, the prior arrest record of the offender and the notification and response of the victim. Those guidelines determine entry into the program and administration of the program.

The Prosecutor May Set a Program Fee

The prosecutor may set a program fee not to exceed $1,000 for the administration of the program. The prosecutor has authority to waive the program fee, in whole or in part, such as for indigent persons. The prosecutor may also provide for the fee to be paid in full or by monthly increments. The fee shall be collected by the clerk of court and made payable to the general fund of the political subdivision (county or city) in which the case is being prosecuted. The clerk is to deduct certain state statutory fees (peace officer retirement surcharge) set out in OCGA §  47-17-60(a.1).

The Prosecutor May Require Compliance Monitoring

The prosecutor may recommend to the city or county involved to contract with an individual or entity to monitor compliance with the program. This is basically a pretrial services officer, similar to a probation officer. 

The Prosecutor May Assess Court Costs

OCGA §  15-18-81 allows the prosecutor to assess court costs for dismissal of criminal warrants when the affiant on the warrants is not a peace officer. Those costs go to the general fund of the city or county for the court where the case is prosecuted.

The Prosecutor May Set Contractual Requirements for Programs

On a case-by-case basis, the prosecutor may set conditions on the defendant to secure the advantages offered by the pretrial diversion programs. Some of the more common conditions include:

• Do not violate the criminal or traffic laws
• Do not abuse drugs or alcohol
• Do not use illegal drugs
• Submit to random drug/alcohol screens (urine, saliva, breath, blood, hair follicle, etc.)
• Complete evaluations and appropriate for:
  • Drug/alcohol issues
  • Family violence intervention
  • Anger management
  • Psychological/psychiatric services
  • Life skills
  • Marital Counseling
• Submit to and pay for electronic monitoring for:
  • Location (home confinement or curfew)
  • Alcohol use
  • Ignition interlock
  • SCRAM devices

This is not an exhaustive list. The prosecutor has wide discretion to fashion requirements that reflect the concerns of  a particular case.

The Agreement Should Specify the Benefit of Successful Completion

The agreement should specify what happens at the end of the agreement if the defendant is successful. In most cases, this will mean dismissal and restriction and sealing of the record.