Evaluating a Prosecutor-Led Pretrial Diversion Program in Winnebago County: Interim Report

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. Loyola's Center for Criminal Justice is partnering with the Winnebago County State’s Attorney’s Office (SAO) to evaluate one such effort, a deferred prosecution program for nonviolent, first-time offenders called DIVERT. The program is a pilot funded by a grant from the Illinois Criminal Justice Information Authority, as is this study, which is intended to help the SAO and its county partners understand how the program is being implemented and whether it is achieving its desired effects. This interim report provides a brief description of DIVERT and its aims, outlines Loyola’s approach to evaluating it, and presents some initial findings based on interviews with program stakeholders and analysis of roughly 22 months of program data.

Background

DIVERT was launched as a pilot by the Winnebago County SAO in March 2022, with funding from a grant from the State of Illinois. 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 of first-time, nonviolent offenders 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 Features

The program’s basic features are as follows:

Program eligibility. According to the SAO website and published program materials, DIVERT is intended for 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).

We were also told that there is an office policy excluding cases involving intimate partner domestic violence. 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.

Screening. Cases are initially screened by a grant-funded Program Coordinator employed by the SAO, who conducts background checks and reviews police reports (and pretrial services reports where available) of all defendants who are charged, in order 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 a slip notice to that effect in the case file, indicating to the ASA assigned to the case that DIVERT is an option and may be offered at the 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.

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 (ORAS) Pretrial Assessment Tool. 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, 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 Navigator; 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.

Monitoring. DIVERT is not a court supervision or probation program, but participants must report regularly to the Program Coordinator, generally by phone or text. Before each scheduled court date in the case, the Program Coordinator provides the assigned ASA with a report on the defendant’s compliance and progress in fulfilling program requirements.

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.

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.

Evaluation Approach

Loyola is engaged in 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 are collecting and analyzing data on all individuals participating in DIVERT since the program began operating in March 2022, including both those who complete the program and those who enroll but fail to complete. Data collection will continue through June 2024, covering the 28 months of grant-funded program operation. We will also collect descriptive and outcome information on a comparison group composed of (1) Winnebago County defendants who would have met program eligibility requirements but whose cases were filed during the 12 months prior to the program’s start date, and (2) those flagged by the Program Coordinator as eligible for the program but not subsequently enrolled.

In addition, the evaluation will be informed by qualitative interviews and focus groups with key staff and stakeholders. We have already conducted confidential interviews with ten stakeholders to get their candid insights into the way DIVERT is working and to help us understand the numbers we’re seeing. During the next phase of the evaluation we will be conducting further interviews and focus groups with stakeholders, including current and former DIVERT participants.

Data on the Program’s First 22 Months

Eligibility, Screening, and Admission

We have analyzed data on DIVERT cases from the program’s launch through January 19, 2024. During that time, approximately 22 months, a total of 3,747 criminal cases were screened for eligibility by the DIVERT Program Coordinator. Of these, 656 (18%) were found eligible, and 3,091 were not. In other words, the program’s basic eligibility criteria (first-time, nonviolent) ruled out participation in about four out of five cases. In most instances, defendants were screened out as a result of the “first-time offender” requirement: about 90% of all those rejected had prior criminal convictions.

We also found that enrollment was low even among those flagged as eligible during the screening process. Overall, only 87 of the 656 individuals flagged as eligible (13%) actually entered the DIVERT program: • Of the 401 misdemeanor cases identified as eligible, 19 (5%) were enrolled. • Of the 288 felony cases flagged as eligible, 68 (24%) were enrolled.

One likely reason for the very low program enrollment rate among eligible misdemeanor cases is that most such cases were unlikely to be prosecuted anyway, even without DIVERT participation. When we looked at all the eligible but not enrolled misdemeanor cases that had received a final disposition at the time of our analysis (256 out of 382), we found that the majority (161, or 63%) had been dismissed outright.

It is plausible that misdemeanor defendants, even when notified of their eligibility, were less likely to find the program attractive, given the probable outcome of their case.

Felony cases identified as eligible in the screening process were somewhat more likely to be enrolled, and this may be related to the fact that the stakes were higher. DIVERT may have appeared more attractive to felony defendants because the alternative was unlikely to be dismissal: Of those felony cases that were flagged but not enrolled and had final dispositions at the time of our analysis (90 out of 220), only 16% had ended in dismissal.

In all, the standard screening and admission process set up for the DIVERT program yielded only 87 total enrollments during the program’s first 22 months—an average of less than 4 per month. However, an additional 169 cases entered the DIVERT program without having been identified as eligible by the DIVERT Program Coordinator. These cases—67% of the total enrolled—entered the program through referral by assigned ASAs. Thus, while the share of cases flagged by the Program Coordinator as DIVERT-eligible did not account for most of those enrolled, it is likely that seeing cases flagged as DIVERT-eligible is a frequent reminder of the program and keeps it in the mind of ASAs as a possible option for resolving cases.

Participant Profile

Overall, 78% of cases enrolled in DIVERT were felony cases and 82% of cases did not include a charge of violence (i.e., they did not include a threat of assault or battery). Charges involving property-related crimes (e.g., theft, retail theft, criminal damage to property) accounted for roughly one-third (32)% of the cases, followed by 23% of the cases involving drug-law violations (e.g., primarily possession of controlled substances), assaults or batteries (16% of cases), weapon-possession offenses (12%), and the remaining 17% of cases accounted for by a variety of other offenses (e.g., disorderly conduct, driving on a suspended license, no valid registration, etc.).

Enrolled participants were 52% male and 48% female. In terms of race, 49% of participants were white, 33% were Black, 17% were Hispanic, and 1% were Asian. As an indication of the economic situation of the program participants, nearly one-half (46%) were represented by a public defender and the other 54% of participants had private attorneys. On average, participants were 33.8 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.

Services/Referrals/Other Requirements

All DIVERT participants were required to comply with a set of individualized program conditions. Most (69%) 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 39, with 68% of participants being required to complete between 30 and 50 hours.

In addition, 52% of 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.

Finally, participation in Life Skills training was required of 36% of DIVERT participants, 23% were required to pay restitution, and 12% were required to write an apology letter.

Program Matriculation & Recidivism

Of the first 253 participants enrolled in DIVERT, 155 had completed the program successfully as of January 19, 2024. A total of 11 cases have been unsuccessful. Although the standard DIVERT agreement used when the program was first rolled out specified that its duration was 12 months, DIVERT participants have generally been discharged by the court whenever they have completed all program requirements, and in fact, the average time to completion among those successfully discharged was about 5 months (160 days).

In general, successful program completers satisfied all or nearly all program requirements, with 97 out of 101 completing required public service, 42 out of 46 completing life skills training, 30 out of 30 completing substance abuse assessments and 42 out of 46 completing recommended treatment. Program expulsions occurred an average of 177 days after program admission, and were related to failure to complete most program requirements.

For those 155 individuals who successfully completed the DIVERT program, data were collected to determine if they had new criminal charges filed against them after they had completed the DIVERT program. On average, 255 days had elapsed between program completion and when court records in Winnebago County were checked for new charges. Overall, only 11% of those individuals who had completed the DIVERT program had new criminal charges filed. To provide some comparison, we also searched Winnebago court records to track a random sample of 155 individuals that were flagged as DIVERT-eligible but (1) did not enroll and (2) had their DIVERT-eligible cases disposed of, to see how many had incurred new criminal charges afterwards. On average, 268 days had elapsed between the case discharge date and when court records were reviewed. Among these 162 individuals who were DIVERT-eligible but did not enroll, 21% had new charges filed.

Stakeholder Interviews

To shed light on the program data summarized here, as well as to understand how the program is seen from a variety of local perspectives, we’ve conducted interviews with a range of DIVERT stakeholders, including the current and former Program Coordinators, attorneys from the State’s Attorney’s Office and Public Defender’s Office, and TASC representatives familiar with the program. All those we interviewed were convinced of the value of DIVERT, but they also pointed out some practical challenges and areas of confusion, and in some cases they made suggestions for improvements.

Shared Understanding of DIVERT Purposes and Eligibility

While DIVERT does have eligibility requirements as described above, they are not hard and fast, and entrance into the program is ultimately at the discretion of individual ASAs. As a result, a nominally “first time/nonviolent” diversion program has come to serve a broader range of defendants, many of whom have prior criminal histories, and most of whom are charged with felonies, including some person and weapon possession offenses. Through the period examined for this report, at least 22 different ASAs have had individuals enrolled in the DIVERT program, and 8 of these ASAs had 12 or more participants enrolled. On the other hand, there were at least another 11 ASAs that had at least one of their cases flagged as DIVERT-eligible by the Coordinator but did not enroll any case into DIVERT.

In our interviews with some of the ASAs who send cases to DIVERT, we asked about their understanding of the program’s purposes, its eligibility requirements, and the extent to which they felt authorized to stretch or waive those requirements. In describing what they believed were the DIVERT program’s overall purposes, they 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. One ASA described DIVERT as a way to “slap them on the wrist and remind them that bad behavior isn't good.” Speaking specifically of defendants accused of retail theft, who are routinely channeled by DIVERT into a theft awareness program, the same 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.”

The ASAs we interviewed were aware that DIVERT is broadly intended for “first time” offenders. One said the “first time” requirement meant, in effect, “very, very, very, very minimal criminal background.” Another said it meant “no felony convictions.” Another said, “I think first time can be interpreted different ways. Like, is this the first time you've ever been arrested for anything? Or is it the first time of a felony?... Because I would say…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.”

We heard similar variations with respect to the types of current charges that ASAs consider appropriate for DIVERT. All agreed that the program was only for “lower-level offenders.” 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 a property crime, they're getting DIVERT. 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 I've had a few of those.” Thus, for many of the ASAs, the defendants they referred to DIVERT were seen as low-risk and charged with relatively minor offenses.

But another ASA admitted, “I guess I'm not super clear on what the 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.”

To be clear, no one we spoke with thought it was a problem that different ASAs might have different ideas about who could or should be offered DIVERT. Because program eligibility requirements are somewhat loose, ASAs are able to exercise their professional discretion in the interests of individualized justice. But as with any system involving discretion, particularly in a large prosecutor’s office, this flexibility has a cost, which may include 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.

Eligibility and Enrollment Issues

We also asked stakeholders to help us understand the mismatch between the defendants flagged as eligible by the DIVERT Program Coordinator, and those who actually end up in the program. As noted above, only 13% of those the Program Coordinator identified as eligible were ultimately enrolled in DIVERT, and most program participants—about two-thirds of the total—entered DIVERT without having been previously flagged as eligible. At the very least, these figures raise questions about the extent to which screening cases for eligibility is an efficient and effective use of time.

We heard several suggestions that might account for these differences. One was that it might be a temporary phenomenon. Many of the cases that were enrolled in DIVERT without being flagged as eligible were filed before the start date of the DIVERT program, when screening was not yet occurring. But a majority of DIVERT enrollments have been unflagged in every quarter examined, and the proportion of DIVERT enrollments that were flagged as eligible is not rising—in fact it fell slightly in the second half of 2023.

A more plausible explanation is that the eligibility standards applied by the Program Coordinator are of necessity simple and rigid, while those used by ASAs are more complex and relatively fluid. For example, with respect to prior criminal history requirements, the Program Coordinator reported automatically screening out all defendants with any convictions in the past ten years. The ASAs we interviewed, on the other hand, were clearly applying more nuanced standards, which might lead them to overlook offending that occurred long ago, involved a minor offense, or was not repeated. As one put it, “Does this person have like a pattern of behaviors? [Or] is it kind of like a one-off thing?” As a pilot, the experience ASAs have had in referring cases to DIVERT, and the generally positive case outcomes, can be built upon to develop more sophisticated referral criteria.

The same seems to be true with respect to current charges. The Program Coordinator applies guidelines that simply rule out various categories of charges, but ASAs are not strictly bound by them. Moreover, ASAs have access to additional information that is missing from the paper record that the Program Coordinator relies on to screen cases. Defendants originally charged with (ineligible) violent offenses sometimes turn out to have been overcharged, several interviewees told us. “Thanks to body cameras and squad car cameras, you can actually see,” a Public Defender pointed out, describing a case that was originally charged as aggravated battery against a police officer. “In the report it says, ‘He hit me with the [car] door on purpose.’ In the video, yeah, not so much.” Because the Program Coordinator is reviewing cases for eligibility the day the defendant goes before a judge for the first time, and when the original charges alleged by the police have not yet been reviewed by an ASA, it is possible that many of these charges will be different following a grand jury indictment.

Accounting for DIVERT Offers

The relatively low enrollments of flagged cases indicate that eligible defendants are either (1) not being offered DIVERT most of the time or (2) not accepting DIVERT offers most of the time. Which is it? The ASAs we interviewed were under the impression that their DIVERT offers were rarely refused; 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 don’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 offer is made and the defendant is willing to participate, the Program Coordinator is told, usually by the defendant’s counsel, and the admissions process begins. But if 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, we cannot say anything definitive about the volume or characteristics of this large group of cases, or tell why they never reached the program.

It would be feasible to close this loop, we were told, 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).

The Role of TASC

A little more than half 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. The assigned ASA may also specifically request that the DIVERT agreement require the defendant to report to TASC. One ASA told us, “I generally ask for, if it's a drug case, that a person has a substance abuse evaluation and do any sort of treatment… I think I'm definitely erring on the side of caution.” But another said, “If I thought they had a severe problem… I would rather have them on probation, because then there's someone, the probation officer, that's guiding them and setting stuff up for them and keeping track of things…”

Among those we interviewed at TASC, there was some feeling that, because TASC can and does help with more than just substance abuse issues, its role in DIVERT was being unnecessarily restricted. Moreover, they questioned whether it made sense to link the number of required meetings with TASC to the seriousness of the charge, rather than the extent of the defendant’s needs. But while it may be true that some high-need individuals accused of misdemeanors would benefit from more than one post-assessment interaction with TASC, it is questionable whether the justice system’s mandating those interactions would be warranted. And this is particularly true given the likelihood that increasing the burdens of DIVERT participation in misdemeanor cases would only further drive down misdemeanor enrollment. Ideally, individuals that need further services beyond the end of their participation in DIVERT would be on a trajectory to continue those services.

Other Issues

Our interviews uncovered other questions and areas of uncertainty about DIVERT that are worth the consideration of SAO leadership.

Resource savings. One stated purpose of DIVERT is to conserve resources—but it is worth asking whether and to what extent it does so. DIVERT cases often still involve multiple court hearings before they reach resolution. The ASAs we interviewed certainly believed that the program saves them time. (“I don't have to prep it for trial,” one 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…[T]he extent of my involvement is every three months I pull a file and I read an email.”) But whether DIVERT saves system resources depends first on the docket-control practices of individual judges, which are beyond the SAO’s control, and second on the alternative—how these cases would have been handled in the absence of DIVERT. Here the range of possibilities includes dismissal and court supervision as well as full-scale prosecution. In the next phase of the evaluation, we will begin to explore this issue by determining whether there is any difference between DIVERT cases and comparable non-DIVERT cases in the overall number of hearings held.

Revocation standards. 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 (11 of the 253 enrolled) have been revoked from DIVERT, but our interviews suggested that this is not because compliance has been perfect. In fact, we were told that, like DIVERT eligibility standards, standards for program revocation appear to vary from ASA to ASA. (“I think I tend to give a longer leash than a lot of other ASAs,” one told us.) Also, whether they are supposed to or not, assigned judges sometimes play a role, opposing revocation in cases where the Program Coordinator and the ASA considered it justified. This uncertainty regarding consequences for noncompliance can be a source of confusion and frustration. As one stakeholder put it, “Sometimes the cases are dismissed when the individual…continues to use substances, has not gone to treatment. And all of a sudden the case is dismissed in court. Like, what happened?”

Communication. 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 some external stakeholders expressed a desire for periodic leadership check-ins with the SAO, to confirm that “what we're doing is what we're supposed to be doing.”