The surest way to avoid the collateral consequences of conviction is to avoid conviction in the first place. Pre-trial diversion programs offer defendants a chance to do just that, by having the charges against them dismissed before they even reach court. But there is often a catch that puts this benefit out of reach for those of limited means.

Diversion programs are controlled by prosecutors, who may condition dismissal of charges on the defendant’s participation in educational, rehabilitation, or community service programs for which the defendant must foot the bill.  These costs, along with attendant administrative fees set by prosecutors, can price out many of the low-income defendants who stand to benefit most from the second chance that diversion promises.  Even if defendants can come up with the necessary cash for participation, they may find the promised relief illusory.  Because prosecutors have near total control over the programs, deciding who is eligible and what is required, defendants must first convince prosecutors that they are worth taking a chance on before the opportunity will be offered.

An illuminating two-part expose’ in last week’s New York Times (“No Money, No Mercy“) takes a close look at how these programs operate, and the fate of defendants who have worked to earn a second chance but find themselves ultimately unable to afford it or benefit from it. Since prosecutorial control of the programs obscures their operation to a large extent, The Times “gathered information, statutes and fee schedules on 225 diversion programs in 37 states and interviewed more than 150 prosecutors, defense lawyers, defendants and experts,” to develop a sobering national overview.  The piece documents how the burden of a criminal record is imposed disproportionately and unfairly on people of color and limited means through unreviewable decisions of prosecutors, effectively re-creating the peonage that replaced slavery immediately after the Civil War.

You can read The Times’ full expose, “After a Crime, the Price of a Second Chance,” here. The second part of the series focuses on Dothan County, Alabama to detail some of the more egregious racial and class inequities that result from high fees and prosecutorial control.  See “Alabama Prosecutor Sets the Penalties and Fills the Coffers,” linked here.   A follow-up piece published on January 6 (“Forcing a District Attorney’s Hand”) documents the difficulties experienced by the Times reporter and photographer in obtaining the Dothan County story.  The Times published a Letter to the Editor commenting on the series by CCRC Executive Director Margaret Love.

We summarize the broad points of the series below, but highly recommend reading it in full.

Despite their flaws, diversion program were developed with all the best intentions. According to the Times,

Diversion is intended to relieve overburdened courts and crowded jails, and to spare low-risk offenders from the devastating consequences of a criminal record. It mostly applies to nonviolent cases that make up the vast majority of crimes — offenses like shoplifting, drug possession and theft. There are now diversion programs in almost every state

But now many cash-strapped jurisdictions are also viewing these programs as an important revenue source, resulting in increasing fees that many defendants simply cannot afford.

[Fees] vary widely from town to town and can reach $5,000 for a single offense. In a country where 27 million households make less than $25,000 a year, even $500 can be prohibitive.

And because those fees generate revenue, which often flows directly into prosecutors’ offices, there are strong incentives to keep costs high, offer preferential treatment of affluent defendants, and eschew leniency when it comes to the inability of some defendants to pay.

District attorneys are sometimes willing to adjust their diversion policies for the right price. In Shawnee County, Kan., defendants who might not normally be considered eligible can get diversion if they agree to pay more than the usual fee — sometimes thousands of dollars more — said Matt Patterson, the district attorney’s chief of staff.

Asked if the fees are ever waived for the poor, Mr. Patterson gave a long sigh. “Not really, to be honest with you,” he said.

The same is true in many places. “Pretrial diversion is a voluntary program,” reads the prosecutor’s website in Florida’s 18th judicial circuit, in all capital letters. “Fees are not eligible for reduction or waiver.”

While some jurisdictions do make allowances for the poor, The Times found sliding scales that exist largely in theory. In South Carolina, state lawmakers capped the diversion fee at $350 and said it might be waived for indigent defendants. But waivers remain an afterthought at best. In a review of diversion guidelines issued by 13 of the state’s 16 prosecutors, only two mentioned the possibility of a waiver.

In many jurisdictions, defendants that are accepted into the programs but are unable to pay the fees are hauled right back into court for prosecution, often after they have already completed all the classes, community service, and other requirements of their diversion agreement.

Diversion, interviews and case records show, can be revoked for failure to pay, or never even offered to defendants deemed too poor to afford it. A prosecutor in Ohio said he rejected applicants if he thought they wouldn’t be able to pay restitution within a time limit — one that he imposed.

But even those who are able to afford to participate in the programs are not necessarily guaranteed the benefits that the programs appear to promise.

Dismissed cases can still show up as a black mark in a background check. And many district attorneys impose rules that undermine the benefits of diversion, such as requiring defendants to enter a guilty plea that can later be used against them. Some defendants find themselves saddled with strict requirements, like hundreds of hours of community service, five years of probation or even a month in jail, that are indistinguishable from punishment.

The promise of relief can be particularly elusive in jurisdictions where eligibility is predicated on offering a guilty plea.  This allows prosecutors to quickly take the case to sentencing if the requirements of the diversion program are not fulfilled.  Moreover, defendants are often unaware that even a guilty plea is tantamount to a conviction when it comes to the imposition of many collateral consequences.

[F]or defendants, the pleas make things more difficult, coming back to haunt them years after completing diversion. Pleas have been used as evidence to deny professional licenses, citizenship and employment. The 2008 diversion guidelines issued by the National Association of Pretrial Services Agencies said that defendants should not be required to plead guilty.

The guidelines also stressed that dismissal is not enough — after diversion, cases should be sealed or expunged from the public record.

But expungement is rarely automatic, and many defendants do not realize that it requires filing paperwork and paying an additional fee. In El Paso, the district attorney bans expungement altogether.

The series details the operation of diversion by the long-time prosecutor in Dothan County, Alabama, in a dispiriting depiction of how race is still the dominant consideration in the criminal justice system in many parts of the South.  When race is coupled with limited means, the disproportionate burden of a criminal record produces what Michelle Alexander has called The New Jim Crow.

Unfortunately, the issues surrounding diversion fees are just one example of a broader trend.  Other forms of relief such as expungement, sealing, and deferred adjudication can remain similarly out of reach for those of limited means, significantly offsetting the benefits that such initiatives were meant to confer.  In Kentucky, for example, a law enacted just this year allows many felony convictions to be expunged for the first time, but only if you can scrape together $500 to pay the required filing fee. In Tennessee, the $450 expungement fee is so prohibitive that huge private funds have been established to cover the costs that petitioners cannot.

It is difficult to view these exorbitant fee requirements as anything other than shameful. In most instances, their sole purpose is to generate additional revenue off the backs of those least able to afford it, often after those people have already completed the hard work of demonstrating that they deserve the second chance they need to succeed.  At the very least, they directly conflict with the spirit of the second chance initiatives they purport to support.   Hopefully more jurisdictions will begin to follow the the example set by Illinois’ Cook County, which, as The Times discusses, serves as a national model for diversion due to its fee-free implementation and its commitment to putting every eligible defendant into the program.