LA must intervene on pretrial diversion

Some tweaks made and guidance given to Louisiana’s pretrial diversion guidelines could guarantee the concept does what it’s supposed to do – increase public safety while ensuring accountability.

While the state requires diversion programs – which allow a defendant to skip judicial proceedings and accept some kind of punishment for an alleged crime – in a couple of instances, except for prohibiting some serious matters it leaves whether to have such a program and its scope in then hands of the individual authorities, essentially district attorneys or city prosecutors. Within these parameters, authorities basically do what they want, subject to a 1993 state attorney general’s opinion that declares these activities can’t enrich offices beyond the costs to run them.

This has allowed, particularly in the last few years, many judicial districts to begin authorizing diversion for a host of crimes, often dealing with traffic. This proves easy for DAs, as they exist as a separate government entity as opposed to municipalities’ legal departments that enforce ordinances. For a fee paid directly to the DA, those who draw citations have the DA drop the charges.

That usually turns out to be a good deal even for the innocent. Even if the fee turns out pricey – this can run into the hundreds of dollars – these levies still cost less than if convicted in court with higher insurance costs to follow or defense expenses.

These also turn out to be a good deal for DAs. While their record-keeping leaves something to be desired, altogether they rake in tens of millions of dollars annually – money that in part otherwise would have gone to other parts of the criminal justice system – through diversion. It also skews law enforcement priorities, when DAs go out and take these gains to pay for increased patrolling that generates more diversion business.

Which has caught the eye of critics, causing a complaint filed last week by the Southern Poverty Law Center asserting that some activities fall outside the permissible scope, as defined by the opinion. It accuses some DAs of enriching their offices and/or distributing proceeds to other agencies in contravention of that opinion.

But that’s all the special interest group can do, file an ethics complaint. No other legal avenue exists since the law itself doesn’t address the matter, with only the Code of Criminal Procedure defining prosecutorial discretion and no specific criminal behavior, outside of the instances of impaired driving and sex crimes, defined by the state.

As such, the Legislature should step in and bring clarity to the issue. It should take a very comprehensive approach, first by defining crimes allegedly committed eligible for intervention programs. Not all infractions currently part of programs may best increase public safety through the tactic. Also, new standards must remove DA discretion in determining who may participate, to prevent favoritism.

Also, lawmakers should create or delegate authority to create regulations about the content required in diversion programs, to ensure a genuine effort goes forth to educate away from committing the crime again. As part of this, they must define clearly what costs can tie to program revenues, with an eye on the process to reeducate, and prohibit revenue-sharing with other agencies.

Finally, these policy-makers have to spell out reporting requirements. This increases accountability as well as gives an idea about whether elements of or the entire program works cost-effectively.

The current open-ended nature of these programs presents too much latitude that lets DAs stray from what should be their sole purpose – reducing the crime rate through wise use of citizens’ resources. Only state government action seems likely to guarantee this.