An Evaluation of the Winnebago County State’s Attorney’s Office Deferred Prosecution Program: Year Two Report

Executive Summary

The Center for Criminal Justice at Loyola University Chicago conducted a mixed-methods evaluation of DIVERT, a pilot deferred prosecution program operated by the State’s Attorney’s Office (SAO) in Winnebago County, Illinois, with grant funding from the Illinois Criminal Justice Information Authority. This report summarizes data on all individuals participating in DIVERT since the program was launched in March 2022, through June 4, 2024, a little less than 28 months, as well as information gathered through interviews and focus groups with a range of DIVERT stakeholders.

DIVERT was broadly conceived as a program for first-time, nonviolent offenders; a grant-paid Program Coordinator screens incoming criminal cases for DIVERT eligibility, but the assigned Assistant State’s Attorney (ASA) makes the ultimate decision on whether or not to offer DIVERT in individual cases, and ASAs have some discretion to refer more serious cases or defendants with prior criminal histories to the program. To be enrolled in DIVERT, defendants must sign a statement admitting factual allegations of the underlying charge, and agree to complete program requirements and remain crime-free over the program period. In return, the SAO agrees to hold and eventually dismiss criminal charges. In addition to avoiding criminal convictions, successful DIVERT participants may apply immediately to expunge the record of the case, and the SAO agrees not to object to expungement.

Since it was launched, DIVERT has enrolled 330 participants. A total of 4,716 criminal cases have been screened for DIVERT eligibility by the Program Coordinator, but only 812 (17%) have been found eligible. Most cases were rejected because of defendants’ prior criminal convictions. Even among those flagged as eligible, however, only 124 (15%) actually entered the DIVERT program. On the other hand, a total of 206 cases were enrolled through referral by assigned ASAs, without having been identified as eligible in the screening process. These cases represented 62% of the total enrolled.

Enrolled participants were 51% male and 49% female. In terms of race, 48% were white, 35% were Black, 16% were Hispanic, and 1% were Asian. Their average age was 33.2 years old. About half were represented by the Office of the Winnebago County Public Defender.

Overall, 72% of enrolled cases involved felony charges, mostly Class 4 felonies (the least serious of the felony classes), and 28% involved misdemeanors, mostly Class A misdemeanors (the most serious of the misdemeanor classes). Charges of property-related crimes accounted for 40% of enrolled cases, with drug-law violations making up 25%, weapon-possession offenses 12%, and assault or battery 10%.

All DIVERT participants were required to comply with a set of individualized program conditions. Most (70%) were required to work a specified number of hours of community service, generally between 30 and 50 hours. Smaller proportions were required to complete Life Skills training (44%), pay restitution to victims (22%), or write apology letters (13%). About half (49%) were referred to the program’s contracted clinical case management provider, Treatment Alternatives for Safe Communities (TASC), which conducted behavioral assessments and made referrals to services and treatment in accordance with these assessments. Of those assessed by TASC, 73% were referred for substance abuse treatment.

DIVERT has achieved generally positive outcomes. Program failure is rare. Of the first 330 participants enrolled in DIVERT, 219 have completed the program successfully, and only 17 cases have been unsuccessful (the remaining 94 cases are still active). In general, successful program completers satisfied all or nearly all program requirements. Their average time to completion was about 5 months.

An analysis of the court records of the first 155 individuals who successfully completed the DIVERT program revealed that only 12% of those completing the program had new (non-traffic) criminal charges filed after an average of one year following completion. Of those DIVERT completers who entered the program as a result of being flagged as eligible by the Program Coordinator, only 8% had new criminal charges filed. By comparison, among a comparable sample of 163 individuals who were DIVERT-eligible but not enrolled in the program, 16% had new charges filed within an average of one year after case discharge.

Interviews indicated that the DIVERT program is broadly accepted and valued by stakeholders. All agreed that DIVERT is a useful program, serving a real need. They shared a clear understanding of the program’s basic purposes and goals, particularly that of providing defendants with second chances without any sacrifice of public safety.

Stakeholders generally believed that DIVERT is more efficient than formal handling, and resolves cases with fewer resources. However, court data show that DIVERT cases actually involve more total court hearings when compared with cases that were flagged as eligible but not enrolled in DIVERT. Moreover, an analysis of the dispositions of misdemeanor cases flagged as eligible for DIVERT but not enrolled reveals that more than two-thirds were subsequently dismissed—suggesting that DIVERT handling is far less likely to save resources in misdemeanor cases than in felony cases. Since 72% of all DIVERT cases involve felony charges, it’s likely that the program is saving resources overall, but not necessarily in every case.

Our interviews with stakeholders also pointed to various ways in which DIVERT could be improved, including the development of more complete written policies, more regular program communications and refreshers for ASAs using the program, and centralized tracking of program offers.

Background

Prosecutor-led pretrial diversion is of great potential value as a way of limiting the costs and harms associated with formal prosecution while still holding people accountable for criminal behavior. Through diversion programs, defendants identified as low-risk are offered an opportunity by the prosecutor to avoid a conviction and further processing through the justice system, if they are willing to admit to the underlying facts of a criminal charge and complete specific program requirements (e.g., community service, restitution, referral for services). Upon completion of these requirements, the criminal charges are dismissed, and the criminal record can be expunged.

DIVERT was launched as a pilot deferred prosecution program by the Winnebago County State’s Attorney’s Office (SAO) in March 2022, with funding from a grant from the Illinois Criminal Justice Information Authority. It replaced a previous deferred prosecution program operated in Winnebago County for about 8 years, which had required defendants to pay a $500 fee to participate. Part of the motivation for seeking state funding for DIVERT was to expand program access by eliminating this fee barrier; otherwise, both programs were designed with the same broad target group (first-time defendants charged with nonviolent offenses) in mind.

DIVERT is at the low end of an array of diversion alternatives available in Winnebago, including various problem-solving courts and the Second Chance Probation program. As a “deferred prosecution” program, its essence is a formal agreement, under which the SAO promises to hold and eventually dismiss criminal charges against qualifying defendants who complete program requirements and remain crime-free over the program period. In addition to avoiding conviction, successful DIVERT participants may apply immediately to expunge the record of the case, and the SAO agrees not to object to expungement.

Program Description

Program eligibility

The 2023 Annual Report of the Winnebago County SAO declares that DIVERT is “an effort to hold first time non-violent offenders accountable while avoiding conviction being entered on their record.” The SAO website and published program materials clarify that this means defendants who (1) have no prior criminal convictions and (2) are currently accused of nonviolent offenses, up to the level of Class 3 felonies (i.e., misdemeanors or Class 3 or 4 felonies).

In addition, we were told that office policies exclude some case categories even if they might otherwise qualify, including intimate partner domestic violence cases, sex offenses, DUIs, and cases involving defendants with gang affiliations or mental health issues.

[2]

These case types are accordingly screened out, along with those involving violence or in which records show a prior criminal history, by a grant-funded Program Coordinator employed by the SAO. However, as we discuss further below, Assistant State’s Attorneys (ASAs) sometimes offer DIVERT to defendants who do not meet some or all of these eligibility requirements.

[3]

Screening

Incoming cases are screened daily by the Program Coordinator, who conducts background checks and reviews police reports (and pretrial services reports where available) of all defendants who are charged, to assess DIVERT eligibility. The screening process occurs prior to a defendant’s first appearance. In felony cases that are determined to be eligible, the Coordinator places two pink slip notices to that effect in the case file, indicating to the ASA covering the first appearance hearing that DIVERT is an option and may be offered at the assigned ASA’s discretion. In misdemeanor cases, we were told that the original procedure was for the Program Coordinator to notify eligible defendants by letter, asking them to contact the SAO through their attorneys if they wished to participate. However, this separate letter notification procedure for misdemeanor defendants is no longer used, and now the Program Coordinator simply inserts a slip notice into the file in misdemeanor cases as well.

Offer

Neither a slip notice nor a notice letter constitutes a formal “offer.” DIVERT offers are generally made by assigned ASAs, at their discretion, and are conditional upon program acceptance as described below.

Intake meeting

If the DIVERT option has been offered and the defendant wishes to participate, the Program Coordinator is notified, generally by the defendant’s attorney, and an intake meeting is scheduled. At the intake meeting, the Program Coordinator explains the general features of the program and conducts an intake interview aimed both at (1) determining whether the defendant is really suitable for DIVERT and (2) shaping and informing individualized program requirements and conditions. In addition to basic contact information, the intake interview gathers information in a variety of areas, including the defendant’s education, employment, family and social supports, substance use history, peer associations, attitudes, and mental and physical health history.

Risk assessment

Since February 2023, the Program Coordinator has been using information collected in the intake interview to fill out the Ohio Risk Assessment System Community Supervision Tool (ORAS-CST). The ORAS-CST measures risk levels across seven different domains, including: criminal history, education/employment/financial situation, family/social support, neighborhood problems, substance use, peer associations and criminal attitudes/behavioral patterns. In addition to measuring risk across these individual domains, the ORAS-CST also produces an overall risk score/classification. This ORAS-CST is the same one used by probation departments across Illinois. The sole purpose of the ORAS assessment, we were told, is to provide the assigned ASA with information needed to inform the final decision regarding acceptance into the program and any requirements and conditions that should be imposed. (The program’s contracted clinical case management provider, Treatment Alternatives for Safe Communities (TASC), performs its own assessment of individuals referred by the program, and it is this second assessment that guides TASC’s case planning and referrals.)

Admissions meeting

Following the intake meeting, the Program Coordinator draws up an “Admissions Packet” of standard documents that must be signed by the defendant at a second in-person meeting, which will constitute the defendant’s formal enrollment in the program. At this Admissions meeting, in the presence of counsel, the defendant signs waivers of the preliminary examination and the right to a speedy trial, an admission to the underlying facts of the crime alleged, and a formal agreement on program requirements and conditions.

Program requirements

The Program Coordinator drafts an initial set of recommended program requirements for each defendant, but these are subject to the assigned ASA’s final approval. Standard program requirements include paying restitution (if relevant to the case), performing community service, attending all court dates, and refraining from breaking laws, using drugs or alcohol, or possessing firearms during the period of program enrollment. In addition, in cases where there are indications of substance abuse (either in the circumstances of the incident itself, in the intake interview, in the pretrial services report, or otherwise), the defendant may be required to report to TASC.

TASC assessment, case management, and service referrals

TASC’s participation in DIVERT began in August of 2022. For each defendant referred by the program, TASC conducts a behavioral health assessment, including a drug and alcohol test, and creates a care plan which may include linkages to other services, such as drug or mental health treatment. In general, misdemeanor defendants are required to cooperate in the initial assessment and to attend one follow-up meeting to go over the results with the TASC case manager; subsequent interactions with TASC or compliance with its recommendations are purely voluntary. In felony cases, however, defendants are required not only to do the initial assessment but to attend as many follow-ups as TASC deems necessary, or risk being out of program compliance.

Check-ins

DIVERT is not a “supervision” program, but participants must report regularly to the Program Coordinator, generally by phone or text, regarding their progress and any obstacles they are encountering. The Program Coordinator keeps a log of these interactions.

Hearings

Even after a case has been moved to DIVERT, routine court hearings continue to be held. We were told that these hearings occur every two or three months, depending on the judge, to check on the defendant’s progress and address any compliance issues that arise. Defendants are generally required to attend these hearings, either in person or via Zoom.

In advance of scheduled court dates, the TASC Navigator sends the Program Coordinator a spreadsheet listing all DIVERT participants assigned to TASC, summarizing their attendance/nonattendance at appointments, urinalysis results, diagnoses if any, referrals if any, and compliance with recommendations. The Program Coordinator uses this information, in combination with what he learns from check-ins and other sources, to update the assigned ASA on the defendant’s overall compliance and progress in fulfilling program requirements.

Discharge

Upon the defendant’s successful completion of all program requirements,

the Program Coordinator prepares a draft Order of Successful Completion for the court’s approval at the next hearing, and all charges against the defendant are dismissed. At that time, the defendant is provided with an expungement packet, and the SAO agrees not to object to expungement.

Methodology

This is a mixed-methods evaluation of DIVERT, intended both to shed useful light on the ways the program has been implemented and to assess its overall impact on participants. For the quantitative part of the evaluation, we analyzed data on all individuals participating in DIVERT since the program began operating in March 2022, including both those who completed the program and those who enrolled but fail to complete. We also collected data on a comparison group, including those flagged by the Program Coordinator as eligible for the program but not subsequently enrolled. Finally, to shed light on these data and to understand how the program is seen from a variety of local perspectives, we conducted qualitative interviews and focus groups with a range of DIVERT stakeholders, including the current and former Program Coordinators, two current DIVERT participants, three Assistant State’s Attorneys, three Public Defenders, and three TASC representatives familiar with the program.

A previous report provided a brief description of DIVERT and its aims and presented initial findings based on the first 22 months of program data, from March 2022 through mid-January 2024. This report updates that analysis through June 4, 2024.

Quantitative Findings

Screening and Enrollment

Through June 4, 2024, a total of 4,716 criminal cases were reviewed for eligibility by the DIVERT Program Coordinator. Of these, 812 (17%) were found eligible, and 3,902 (83%) were not. In the vast majority of cases, defendants appear to have been screened out as a result of the “first-time offender” requirement: about 91% of all those rejected had prior criminal convictions.

Even among those flagged as eligible during the screening process, however, enrollment was low. Overall, only 124 of the 812 individuals flagged as eligible (15%) actually entered the DIVERT program:

• Of the 509 misdemeanor cases identified as eligible, 29 (6%) were enrolled.

• Of the 254 felony cases flagged as eligible, 95 (37%) were enrolled.

What happened to the cases flagged as eligible for DIVERT but not enrolled? Misdemeanor cases were most likely to be dismissed: when we looked at all the eligible but not enrolled misdemeanor cases with a final disposition (305 cases), we found that 69% had been dismissed outright.

For felony cases identified as eligible in the screening process but not enrolled, however, the alternative was unlikely to be dismissal: of the 86 felony cases that were flagged but not enrolled and had final dispositions at the time of our study, only 16% had ended in dismissal.

A total of 206 cases entered the DIVERT program without having been identified as eligible by the DIVERT Program Coordinator. These cases—62% of the total enrolled—entered the program through referral by assigned ASAs. Over the 28 months for which we have data, total monthly admissions into the program varied from lows of 3 or 4 to highs of 20 or more. But in every quarter during that period, enrollments of flagged defendants accounted for less than one-half of all enrollments, with roughly 40% of all enrollments accounted for by the flagged cases since the fourth quarter of 2022.

Program Participants

Demographic characteristics

Enrolled participants were 51% male and 49% female. In terms of race, 48% of participants were white, 35% were Black, 16% were Hispanic, and 1% were Asian. As an indication of the economic situation of the program participants, one half were represented by a public defender and the other half had private attorneys. On average, participants were 33.2 years old, but only 13% were in the “older” age group of 50 or older, while 38% of participants were in the “emerging adults” (18-24) age group.

We also compared the flagged defendants who entered the program with those who were flagged eligible but not enrolled, looking for demographic differences between the two groups. We found that the overall male-female ratios of the eligible/enrolled and eligible/not-enrolled groups were similar, and that the overall percentages of eligible males and eligible females that were enrolled were about equal: 14% of males flagged eligible for the program were enrolled, as were 13% of the flagged females. There were some racial/ethnic differences between the eligible/enrolled and eligible/not-enrolled groups, however, with the former containing smaller proportions of black and white individuals, and a higher proportion of Hispanics. In fact, of all Hispanics flagged as eligible, roughly 26% were enrolled in the program, far more than the enrolled proportion of eligible whites (12%) and eligible blacks (11%).

Charges

Overall, 72% of cases enrolled in DIVERT involved felony charges, and 28% involved misdemeanors. Most of the charged felonies were Class 4 felonies (the least serious of the felony offenses) while most of the charged misdemeanors were Class A misdemeanors (the most serious of the misdemeanor classes). Combined, 63% of DIVERT cases involved Class 4 felony or Class A misdemeanor charges.

Cases involving charges of property-related crimes (e.g., theft, retail theft, criminal damage to property) accounted for 40% of DIVERT cases, 25% involved drug-law violations (primarily possession of controlled substances), 10% involved assault or battery, and 12% involved weapon-possession offenses. The remaining 13% of DIVERT cases involved a variety of other offenses (e.g., disorderly conduct, driving on a suspended license, no valid registration, etc.). These rough proportions have not changed over time: the nature of the charges against those admitted to the program have remained consistent year by year.

Risk Profile

As described earlier, since February 2023, the Program Coordinator has been using information collected in the intake interview to fill out the Ohio Risk Assessment System Community Supervision Tool (ORAS-CST). Through May 2024, a total of 140 ORAS-CSTs have been completed for DIVERT participants. Generally speaking, across the individual domains and overall, most DIVERT participants were classified as low risk. The two domains where at least 25% were classified higher than low risk were education/employment/financial situation and family/social support. Overall, 96% of assessed DIVERT participants were classified as low risk and 4% as moderate risk.

Analyses were also performed to determine if those enrolled in DIVERT that were flagged as eligible were different in terms of their risk than those enrolled in DIVERT because of a referral from an ASA. Across each of the individual domains the only one where there was a difference between the two groups was in the domain of education/employment/financial situation. Among the cases flagged as DIVERT-eligible, 77% were classified as low risk in this domain, compared to 56% of those admitted through an ASA referral. In terms of overall risk levels, 95% or more of both the cases flagged as DIVERT eligible and admitted through an ASA referral were classified as low risk.

Services and Referrals

Roughly one-half (49%) of DIVERT participants were referred to TASC, which conducted behavioral assessments and made referrals to services and treatment in accordance with these assessments. At the outset of the program, we were told, counseling and treatment service requirements were sometimes written directly into DIVERT agreements and made a condition of participation in the program. Now, however, referrals for such services are made only by TASC clinical staff based on their assessments. For most (73%) of those assessed by TASC, referrals to substance abuse treatment services were made. Thus, overall, 36% of DIVERT participants were referred to substance abuse treatment services by TASC (i.e., 73% of the 49%).

Community Service Work Requirements

All DIVERT participants were required to comply with a set of individualized program conditions. Most (70%) were required to work a specified number of hours at a community service site approved by the Program Coordinator. Of those ordered to complete community service as part of DIVERT, the average number of hours was 37, with 74% of participants being required to complete between 30 and 50 hours.

Other Requirements

Participation in Life Skills training was required of 44% of DIVERT participants, 22% were required to pay restitution, and 13% were required to write an apology letter.

Hearings in DIVERT Cases

As noted above, although the prosecution of a DIVERT case is “held” pending successful program completion, it remains on the court’s docket and routine hearings continue to be scheduled periodically until the case is formally closed. In fact, for successfully completed DIVERT cases, the median total number of hearings conducted was 6, including 4 at the outset prior to program admission, 2 during the period from admission to completion of DIVERT requirements, and 1 more to close the case after completion. By way of comparison, for cases flagged as eligible but not enrolled in DIVERT, the median number of hearings was 5, however, as noted above, most of the cases eligible but not enrolled were dismissed and would thus likely have fewer hearings.

Program Completion

Of the first 330 participants enrolled in DIVERT, 219 had completed the program successfully as of June 4, 2024. A total of 17 cases were unsuccessful. The average time to completion among those successfully discharged was about 5 months (156 days).

In general, successful program completers satisfied all or nearly all program requirements, with 126 out of 143 (88%) completing required public service, 70 out of 83 (84%) completing life skills training, 33 out of 37 (89%) completing substance abuse assessments and 59 out of 68 (87%) completing recommended treatment. The 17 program expulsions occurred an average of 208 days after program admission, and were related to failure to complete program requirements, especially failure to cooperate in recommended treatment.

Recidivism

How well did those enrolled in DIVERT succeed in avoiding new criminal charges after completing the program? We examined records on the first 155 individuals who successfully completed the DIVERT program to determine if they had new criminal charges filed against them afterwards. (We selected only the subset of completed cases with a long enough post-discharge period to allow us to assess their success; on average, 352 days had elapsed between program completion and the date on which court records were checked for new charges.) In addition to checking court records in Winnebago County, the research team also searched the public court records in counties contiguous to Winnebago County, including Boone, Stephenson, Ogle and DeKalb counties in Illinois and Rock County (immediately north of Illinois’ Winnebago County) in Wisconsin. Overall, 12% of those completing the program had new (non-traffic) criminal charges filed. When only those cases enrolled in DIVERT as a result of being flagged by the Program Coordinator were examined, the recidivism rate was 8%.

To provide some comparison, we also searched court records across the same counties to track a random sample of 163 individuals who were flagged as DIVERT-eligible but were not enrolled and had their cases disposed of in some other way. (An average of 362 days had elapsed between the case discharge date and the court records review date.) Among those in this group, 16% had new charges filed. Thus, among DIVERT participants enrolled after being flagged as eligible and tracked for an average of 352 days, 8% had a new charge filed, compared to a rate of 16% among those identified as eligible but not enrolled in DIVERT, who were followed for a similar period of time.

Qualitative Findings

Stakeholders Generally Agree on DIVERT Value and Purposes

All the stakeholders we interviewed believed that DIVERT is a useful program, serving a real need. Moreover, although different stakeholders used different language, all seemed to share a basic understanding of the program’s basic purposes and goals.

At least 22 different ASAs—about half of those in the SAO

—diverted cases into the program during the study period, and 8 of these ASAs had 12 or more participants enrolled.

[10]

In our interviews with some of the ASAs who made frequent use of the program, we heard consistent confirmations of the good sense and utility of deferred prosecution as a response to low-level, low-risk cases. As one ASA said, “I think it's good. I think it benefits both parties. If there's a victim, I think it tends to get [them] restitution faster, because it's an incentive for [defendants] to take this offer and then get the restitution done, whereas if it's an offer that they're not that excited about, the cases tend to drag on and then the restitution is due after the plea, and a lot of times it never gets paid. So I think that's a benefit. I mean, it [also] benefits the defendant because they don't have a conviction on their record. So that's good for them.”

In describing what they believed were the DIVERT program’s overall purposes, ASAs mentioned four basic things:

A second chance. DIVERT was described as affording defendants an opportunity to “right the ship” following a “one-off” mistake. The program gave defendants “a chance to go on with their lives.”

More efficient case resolution. As one ASA recalled, when the program was introduced, “The idea was, this is going to be simpler, it's going to streamline the process, you're not going to give somebody twelve months of court supervision where they do nothing, you're going to give them six months where they…have to do a certain number of things.”

Accountability and education. Speaking specifically of defendants accused of retail theft, who are routinely channeled by DIVERT into a theft awareness program, an ASA told us, “These kids are, you know, they're adults, but they're also still children, they're under 25 or so, you know, and then it's just a matter of this is the way to educate them.”

Needed services. “There are ones where it's like, the guy got the anger management classes. He's—I won't say better, but there's a lesser chance he's going to recidivate because he got that.”

Defenders also expressed general support for DIVERT. One defender told us it was good for people “who did something stupid that doesn’t need to follow them around all their lives.”

“Oh, I think it's, it's an excellent program,” said another. “I would hate to see it go away. Because I think it helps a lot of people get back on their feet.” All of this defender’s clients are charged with felonies; accordingly, the defender said, fulfilling DIVERT requirements is well worth it: “Doing some public service work is rarely going to create a huge problem for my clients.”

We were unable to interview any defendants who had gone all the way through the DIVERT program, but one of the two current program participants we spoke with clearly appreciated the opportunity DIVERT offered: “Oh yeah, I believe it’s good, and I’ve been treated fairly.”

The other participant acknowledged that DIVERT is “a way to get the charges dropped sooner,” and said she is confident of being able to fulfill program requirements in 12 weeks. Nevertheless, she told us she considered refusing to accept the program, because of the requirement that she sign a statement admitting the alleged facts. She was not concerned about the risk that she would fail to complete the program, and that the statement would be used against her. Instead, she was reluctant because she didn’t like having to “sign something saying the charges are true when they’re not.”

The admission requirement is of course a central feature of DIVERT, but it is a stumbling block for some defendants.

“The concerning part,” a defender pointed out, “the part that becomes problematic is, as part of the program, the client has to make a statement admitting, and a lot of the people who are good for the program may actually have a defense.” DIVERT offers them a valuable opportunity to “get some treatment and some help,” the defender said, “but that doesn't necessarily mean they're guilty of whatever it is that they're charged with.”

“I haven't ever had a situation where they're claiming they weren't there at all,” the defender added. “The question is, the details—what exactly happened, right?” Nevertheless, even in these difficult situations, the defender continues to remind clients of the program’s fundamental benefit: “I hear you telling me that you want this case dismissed. This is how you can do it, and as long as you do these things, which includes not being arrested again, you're guaranteed a dismissal.”

Program Eligibility Standards, While Flexible, Are Broadly Consistent

Eligibility standards for DIVERT (“first-time, nonviolent”) have been described in public materials as though they are simple and fixed, but in practice they are somewhat loose and shifting, since they depend to some degree on the judgment and preferences of the ASA assigned to the case.

Both the ASAs and the defenders we interviewed acknowledged that different ASAs have different ideas about who can or should be offered DIVERT. None considered this to be a problem, however. ASAs believed that this flexibility enabled them to exercise their professional discretion in the interests of individualized justice. And defenders said that the ASAs are consistent enough in their determinations that the variation is “not problematic.”

Acting on the “first-time” screening guideline, the Program Coordinator’s first pass automatically eliminates defendants for whom a records check indicates any criminal conviction, going back ten years.

But some of these cases end up in the program nevertheless. One ASA said “first-time” really means, in effect, “very, very, very, very minimal criminal background.” Another said it means “no felony convictions.” A third said, “Probably about half the people, just from my thinking, that I've recommended for it have prior criminal histories, but it would just be small things like a misdemeanor, or maybe things that were dismissed.” The previous analyses of the risk assessment instrument data confirm this: all individuals admitted into the DIVERT program scored as low risk on the criminal history domain, and almost all were low risk overall.

[14]

A similar pattern emerged with respect to the types of current charges that ASAs consider appropriate for DIVERT. Both ASAs and defenders agreed that the program is for those charged with relatively minor offenses. One ASA said that property crimes, especially retail theft, were the most suitable. “There are other ones, we're not precluding it, but those are more fact-specific…If it's something where they battered somebody, threatened somebody, you know, assault, battery, Dom. Batt., that sort of thing, we tend not to do that, unless it's requested by the victim.”

And yet, again, the data show that cases with these more serious kinds of charges do end up enrolled in the program with some frequency: roughly 10% of cases admitted to DIVERT had charges that included assault or battery. As another ASA admitted, “I guess I'm not super clear on what the [offense] boundaries are. Because it's up to the attorney that the case gets assigned to decide whether to refer someone, I kind of used my own boundaries.”

When asked about whether the lack of fixed eligibility standards might be problematic, however, defenders did not express concern. One told us that if there were really wide variations from one ASA to another, it might be a problem, but actual variation is “not that big.”

That individual and others we spoke with saw this as another instance—along with determining appropriate charges, negotiating pleas, and recommending sentences—in which prosecutors must be entrusted with flexibility and discretion to do their jobs. But especially in a large prosecutor’s office, this flexibility does have a cost, in that it involves some sacrifice of transparency and consistency. And obviously care must always be taken to ensure that ASA discretion is being exercised in accordance with office policy.

The Program Coordinator Plays a Key Role in the Operation and Success of the Program

While other players have important roles in DIVERT, the program’s successful operation depends largely on the efforts of the grant-funded Program Coordinator. It’s up to the Program Coordinator to screen and identify suitable cases at the beginning of the process, to work face-to-face with clients from the moment they enter the program, to assess them and understand their needs, to help them develop plans and overcome obstacles, to track their ongoing progress, and to make sure the attorneys, the court, and the other stakeholders are apprised of what they need to know all along the way to program completion.

Case Screening. The initial screening and flagging of cases makes up a big part of the Program Coordinator’s job. The process has already been outlined, along with its results. The Program Coordinator screens cases for DIVERT eligibility each morning, going over all defendants being held for initial appearance following arrest. He also conducts a separate screening once a week for defendants who were given Notices to Appear (NTAs) in lieu of arrest, and whose first appearance hearings occur on Fridays. (On the day we observed, there were 15 defendants to be reviewed on the arrest list and 27 on the NTA list.) For each case, in order to determine the defendant’s prior criminal history, the Program Coordinator checks information from three criminal history databases. He also reviews current charges, applying the program guidelines described above. Some of the cases can be ruled out at once, on the basis of the type of crime charged or the felony level, but most cannot be assessed for eligibility without a reading of the factual summaries in the police reports. All this takes time and work.

And yet, as we described in the section summarizing screening and enrollment data, most actual DIVERT enrollments do not originate in this way, with an eligibility flag. Rather, they come into the program via ASA referral, never having been flagged. Given this fact, is the screening mechanism worth the trouble? One purpose it serves, we were told, is to remind ASAs on a daily basis of the DIVERT program option. It means that at least one person in the office is reviewing all incoming cases, assessing them from a deferred prosecution standpoint, and sorting them into categories. The categories are rough, the pink slips are only suggestions, and ASAs of course will make the final decisions. But seeing cases flagged as DIVERT-eligible is a frequent reminder of the program, keeping it in the mind of ASAs as a possible option for resolving cases, and helping to ensure that they consider using it when appropriate.

Orienting, Monitoring, and Supporting Program Participants. A more important aspect of the Program Coordinator’s job is his one-on-one work with DIVERT participants. It begins at intake and admission meetings, where he gathers information from prospective participants, communicates expectations, answers questions, and lays the foundations for good working relationships. “That meeting went good,” one program participant recalled. “Actually, he reached out to me first, and we talked about it over the phone, and we went over a few things before we met in person. So when we met in person, it was kind of easier, because we had already talked and already, you know, kind of knew what was going on. And once we met, it was more just of signing papers and understanding everything about the program, [and answering] any questions that I had.”

The Program Coordinator communicates regularly with people in the program, via text, email and telephone as well as in person, not only making sure they’re meeting program requirements but helping them with reminders and referrals and troubleshooting when problems arise. As a defender told us, in comparing DIVERT favorably with standard court supervision, “I think you have more benefit from this program because they actually have a person who's talking to [participants] and encouraging them. And [the Program Coordinator] has a lot of community resources. Yeah, that he assists people with... They have his phone number when they need something.”

Providing Support to ASAs. ASAs clearly appreciated the fact that, once a defendant goes into DIVERT, the Program Coordinator takes over all the details, including all communications, tracking, monitoring and reporting in connection with the case. “I have one more file that I do not have to pay attention to unless there's a problem,” one ASA told us. “And that’s the extent of my involvement is every three months I pull a file and I read an email.”

The Program Coordinator also assists ASAs by drafting initial program requirements, conditions, admissions and other documents, subject to their input and final approval, and by keeping them in the loop when problems arise thereafter. “I do communicate with him,” one ASA told us, “like to have input into what the conditions are that he does, yeah, and getting, like, the court status reports or whatever. And then we do communicate outside of that. Sometimes there's people that I'm following or something.”

Whenever a DIVERT case is scheduled for a hearing, the Program Coordinator circulates a “Progress Report” updating both the ASA and the defense regarding the participant’s employment or education status, progress toward completing treatment, public service, restitution, and other requirements. If the participant has successfully completed all requirements, he prepares a draft discharge order.

As a Conduit to Substance Use Assessment and Treatment, TASC Meets an Identified Need

Almost one-half (49%) of all DIVERT participants were required to report to TASC as a condition of program participation. We were told that DIVERT cases are referred to TASC only when there are indications of substance use problems. Sometimes these indications arise from the circumstances of the offense, sometimes from information gathered by pretrial services, and sometimes from self-report during the DIVERT intake and admissions process. ASAs will sometimes specifically request that the DIVERT agreement require the defendant to report to TASC, but more often leave it to the Program Coordinator. “It's very obvious when you read these fact statements,” one of them told us, “whether they need substance abuse treatment, mental health treatment, or whether this was just a one-off thing where they have to do something like public service work, write a letter, pay restitution, whatever it may be. So largely we leave it to [the Program Coordinator] unless we have a request by a victim for certain services.”

It is outside the scope of this evaluation to assess what impact referral to TASC has on subsequent substance use, but DIVERT participants do appear to have significant issues with substance use. According to information gathered at intake and the ORAS-CST, 66% of DIVERT participants said they had used illegal drugs before, and 25% reported that their substance use had caused them legal problems at least once. Based on the ORAS-CST, 23% of DIVERT participants were classified as more than low risk in the substance use domain.

DIVERT Probably Saves Resources, But Only in Cases That Would Otherwise Have Been Prosecuted

One stated purpose of DIVERT is to conserve judicial resources for more serious cases. But DIVERT cases often still require multiple court hearings before they reach resolution. In fact, when we examined the court data for successfully completed DIVERT cases, we found that the median number of hearings conducted (six) was one more than the median number of hearings in cases flagged as eligible but not enrolled in DIVERT.

“Typically,” a defender explained, “when we're talking about a Divert case, and if I say, ‘Judge, we've got these mountains to climb,’ then he'll say, ‘Okay, come back in 60 days.’ You know, not every month. With the understanding that on the next court date, there will be progress made. ‘Okay, we've made even more progress. Still a little bit more to do.’ ‘Okay, I'll do another, another 60 days.’”

The ASAs we interviewed acknowledged that there were still hearings in DIVERT cases, but remained certain the program saved resources overall. “It's a status,” one said, “it's like five minutes, and that's not really court resources.”

“I don't have to prep it for trial,” another pointed out, “so I don't have to devote any of my time to do any of that. I don't have to order labs to get done, so I'm not wasting ISP crime lab time” (for drug possession cases that would require the Illinois State Police crime lab to analyze the substances for a trial).

Still, it should be remembered that the extent of any resource savings from DIVERT will depend upon what the alternative handling would have been. Recall that, when we investigated case outcomes for cases flagged as eligible for DIVERT but not enrolled, we found that more than two-thirds of the non-enrolled misdemeanors had been dismissed outright. In contrast, only 16% of the eligible, non-enrolled felony cases had ended in dismissal. This suggests that DIVERT handling is far more likely to save resources in felony than misdemeanor cases. Since 72% of all DIVERT cases involve felony charges, it’s likely that the program is saving resources overall, but not necessarily in every case.

DIVERT Revocation is Rare, and Standards for Revocation are Somewhat Uncertain in Practice

We also asked stakeholders about what happens to defendants who don’t comply with the terms of their DIVERT agreements. So far, very few defendants (only 17 out of 330, or 5%) have been revoked from DIVERT, but interviews with stakeholders, TASC reports on client progress, and the Program Coordinator’s tracking notes all make clear that this is not because compliance has been perfect. On the contrary, many DIVERT participants struggle to attend appointments, stay in contact, fulfill work requirements, remain sober, and otherwise comply with program rules.

“Sometimes people hit a little bit of a roadblock, but they otherwise have a good attitude,” a defender told us, speaking of clients in DIVERT. “And again, sometimes they have some social issues that have been a bar to getting the thing done.” The defender recalled one client in particular who “had a bit of a marijuana problem. I was sad that she ended up out of the program…I think if she'd been given a little longer time to work on [meeting requirements], she just needed a little extra time. I think too, it's hard when you're a single mom with four kids, with very few resources.”

Still, revocation in that case was an exception. “I've had that [noncompliance] issue, but the program generally works with them,” the defender said. The defender made clear that it was part of the job of legal representation, once a client enters DIVERT, not only to “get involved quite a bit in assisting with compliance,” but also to advocate for clients when the possibility of revocation arises. “I continue to work with my clients... for the whole pendency.”

The involvement of defenders in advocating for retention in DIVERT may act as a brake on revocation, even where compliance is lacking. We were also told that, whether it’s appropriate or not, assigned judges sometimes play a role, opposing revocation in cases where the Program Coordinator and the ASA considered it justified.

But in fact, though DIVERT participants can in theory be revoked for noncompliance with any of the program’s many rules and requirements, no one we spoke to could say precisely when noncompliance rises to the level of meriting revocation. Like DIVERT eligibility standards, standards for program revocation appear to vary from ASA to ASA. Some ASAs have “longer leashes” than others, we were told.

Without Data on “Offers,” We Cannot Account for the Low Enrollment of Eligible Defendants

One puzzle that we have been unable to resolve concerns the relatively low numbers of flagged eligible cases that have been enrolled in DIVERT since the program launched. Why have only 15% of eligible cases ended up in the program? Since DIVERT must be offered by ASAs and accepted by defendants, logically there are only two possibilities: either eligible defendants are (1) not receiving DIVERT offers most of the time or (2) not accepting DIVERT offers most of the time. Which is it? The ASAs we interviewed were all under the impression that their DIVERT offers were rarely refused by defendants; but they were unable to say with any precision how often they did and did not make DIVERT offers in flagged cases.

Unfortunately, the data currently being collected doesn’t clarify this issue. While the Program Coordinator keeps an “Offers” database of all cases flagged as eligible for DIVERT, this is a misnomer, as an actual offer must come from the ASA assigned to the case. When an ASA offers the program and the defendant is willing to participate, the Program Coordinator is told, usually by the defendant’s counsel, and the admissions process begins. But when the ASA declines to offer the program, regardless of the eligibility flag, or makes a DIVERT offer that is rejected by an eligible defendant, the Program Coordinator never hears anything more. As a result, some offers—perhaps many, perhaps most—are never accounted for or recorded. And without data on the whole universe of offers, we cannot say anything definitive about the volume or characteristics of (1) eligible cases where no offer was made versus (2) eligible cases where an offer was made but rejected. Addressing this is one recommendation moving forward and may simply involve the bottom half of the DIVERT eligibly sheet having some boxes an ASA can check indicating why an eligible case was not offered/did not accept DIVERT and have it returned to the Program Coordinator.

Discussion and Recommendations

The current version of the DIVERT program is regarded by the SAO as a pilot. It resembles the previous deferred prosecution program that went by the same name, but has several features—including the lack of fees, less onerous admission requirements, simpler procedures and speedier resolutions—that stakeholders believe make it a clear improvement. Our evaluation suggests that the program is broadly accepted and valued by ASAs, that it is regarded as useful by all stakeholders, and that it is achieving generally positive case outcomes. This section points to some areas where relatively small changes in the pilot model might be considered, as a way to smooth program operations, clarify confusion, and generate more impact.

Communication, Feedback Loops

Many of those we interviewed believed that the DIVERT program would benefit from more routine communication. Several of the ASAs suggested periodic in-house “refreshers” regarding DIVERT, to reiterate and clarify program parameters and routines. And external stakeholders in the Public Defender office and at TASC both expressed a desire for more program information from SAO.

The DIVERT Program Coordinator is the main source of routine program information for ASAs, but most of this information concerns individual cases, and is channeled to ASAs who already make frequent use the program and are familiar with it. It is not clear that there are systematic efforts to make new ASAs, or ASAs who rarely use DIVERT, acquainted with the program. Even ASAs who know DIVERT well are often unsure about basic details, such as eligibility requirements; one described himself as “loosely aware like these are kind of guardrails that the Office wants.” All ASAs confirmed that, if they had ever received a high-level, big picture briefing on DIVERT, it had not been for a long time.

Defenders may also benefit from more accurate, up-to-date information about DIVERT purposes and policies. A defender we interviewed provides clients who are offered DIVERT with printed information about program features and requirements, to help them decide if they should accept it; but the program description that defender uses is more than two years old—it was received from the original Program Coordinator when the program was launched—and is now dated and incorrect in several respects.

Although TASC staff we interviewed have regular contact with the Program Coordinator, they said they would also benefit from periodic leadership check-ins with the SAO, to confirm that “what we're doing is what we're supposed to be doing.”

Written Policies

Like any working diversion program, DIVERT has changed over time, developing its own routines, shorthand, informal understandings and rules of thumb. It has seen some turnover in key positions as well. And in a few instances program policy has been adjusted in response to experience, as when the original 12-month program duration was shortened. As a result, written materials developed at the time the program was launched no longer reflect reality, and it can sometimes be difficult to locate any source for current program policies, or to resolve questions by referring to documents. In practice, the Program Coordinator carries much of this information in his head, and often can only refer his working rules and policies to what he was told—in some cases by people who are no longer around to be consulted. (To take one small instance, in the review process, he told us cases in which the charges involve harm to animals are automatically rejected, but he is not sure why.) To ensure program transparency and consistency, and to capture institutional knowledge, it would be a good idea to expand and update DIVERT program materials to reflect current working realities.

Data Collection

We have already pointed out one important gap in the data routinely collected for program purposes: without accurate tracking of DIVERT offers, we cannot really tell whether the program is being made available to defendants on a fair and consistent basis, whether it is being denied to subgroups who might benefit from it, and so on. Fortunately, we were told that it would be relatively easy to close this gap, simply by requiring ASAs to notify the Program Coordinator via email whenever they offer DIVERT to a defendant. Then the Coordinator would be in a position to keep separate lists of (1) flagged cases in which no notification email came back from the ASA (no offer); (2) flagged cases in which the ASA sent back notification but the Program Coordinator heard nothing from the defendant (offer rejected); and (3) flagged cases in which an offer was made and the defendant followed up (offer accepted).

Program Expansion

Overall DIVERT enrollment has fallen short of initial projections. This is neither a good thing nor a bad thing in itself, but given the program’s generally positive outcomes, it’s worth asking whether DIVERT could accommodate more cases, or different kinds of cases. Some of this expansion may be happening naturally, as individual ASAs develop greater confidence in the program the more they use it. “Now that I understand more about what exactly is being asked of certain people,” one ASA told us, “I've expanded what I would do, what I'm willing to consider for diversion, if it's brought to me and requested.” But rather than rely solely on individual ASAs to stretch the boundaries of the program, the SAO might consider revisiting the original program standards to see if there are other kinds of cases that would be suitable for DIVERT handling.