PRETRIAL DIVERSION - PROBLEMS OF DUE PROCESS AND WEAK CASES

• NCJ Number: 59265
• Journal: Boston University Law Review Volume: 59 Issue: 2 Dated: (MARCH 1979) Pages: 305-333
• Author(s): J S FELD
• Date Published: 1979
• Length: 29 pages
• Corporate Author: Boston University
• Sale Source: Institute for Scientific Information
• Language: English
• Country: United States of America

Annotation

AMENDMENTS TO THE STATUTES GOVERNING PRETRIAL DIVERSION AND CRIMINAL DISCOVERY ARE ADVOCATED TO ALLOW A DEFENDANT TO MAKE SUBSTANTIAL DISCOVERY BEFORE ACCEPTING OR REJECTING DIVERSION.

Abstract

PRETRIAL DIVERSION PROGRAMS HANDLE THOSE CASES IN WHICH THE INDIVIDUAL REQUIRES REHABILITATIVE SERVICES, AND IN WHICH TRADITIONAL PROSECUTION AND INCARCERATION WOULD BE INEFFECTIVE. THESE CASES INCLUDE CRIMES MOTIVATED BY ALCOHOLISM AND DRUG ABUSE. DIVERSION PRESERVES THE RESOURCES AND TIME OF THE PROSECUTORS AND THE JUDGES WHILE DEALING WITH THE UNDERLYING PROBLEMS OF THE CRIMINAL DEFENDANTS. ALTHOUGH THE DIVERSION PROCESSES VARY FROM STATE TO STATE, GENERALLY THE PROSECUTORS HAVE BROAD POWER TO GRANT OR DENY ADMISSION INTO AVAILABLE PROGRAMS. THERE IS A TENDENCY, HOWEVER, TO DIVERT CASES IN WHICH INSUFFICIENT EVIDENCE EXISTS TO PROSECUTE AND CONVICT A PERSON AT TRIAL. THE DIVERSION OF THESE 'WEAK CASES' PLACES PERSONS UNDER THE SUPERVISION OF THE STATE WITHOUT A PROPER BASIS FOR SO DOING. ONCE PLACED IN A PROGRAM, PERSONS ARE WITHOUT CONSTITUTIONAL PROTECTION AND CANNOT BRING AN ACTION TO REVOKE THEIR STATUS. SOME STATES PROVIDE AN ENTITLEMENT INTEREST FOR THE DEFENDANT IN DIVERSION PROGRAMS. OREGON REQUIRES THE PROSECUTOR TO FIND THAT THE DEFENDANT HAS FAILED TO FULFILL THE TERMS OF THE DIVERSION AGREEMENT BEFORE CRIMINAL PROCEEDINGS CAN BE RESUMED. BY NOT REQUIRING A HEARING, HOWEVER, THE OREGON STATUTE VIOLATES THE DUE PROCESS REQUIREMENTS OF THE CONSTITUTION. BECAUSE OF THE POTENTIAL FOR ABUSE RESULTING FROM PRESSURE TO DIVERT THE WEAK CASES, A LIMITED DISCOVERY SHOULD BE AVAILABLE TO DEFENDANTS TO CHALLENGE THE SUFFICIENCY OF THE PROSECUTION'S EVIDENCE. THE DISCOVERY MAY BE EXPEDITED BY LIMITING IT TO MEDICAL REPORTS, TANGIBLE EVIDENCE, AND STATEMENTS OF CODEFENDANTS. THE DEFENDANT'S CHOICE TO ENTER THE DIVERSION PROGRAM WOULD THEN BE AN INFORMED DECISION. FOOTNOTES ARE PROVIDED.