An alternative available to prosecutors in the processing of a criminal complaint is that of diversion, the channeling of criminal defendants, and even potential defendants, into programs that may not involve incarceration.
The prosecutor is an integral part of any diversion system; indeed, he/she should be the central figure in such a system. The prosecutor commonly makes the decision to introduce an offender into alternative treatment and is ultimately responsible for determining the success of that alternative treatment.
The authority of the prosecutor to control the diversion decision is well substantiated.
The purposes of diversion programs include:
- Unburdening court dockets and conserving judicial resources for more serious cases;
- Reducing the incidence of offender recidivism by providing an alternative to incarceration - community-based rehabilitation - which would be more effective and less costly than incarceration; and
- Benefiting society by the training and placement of previously unemployed or underemployed persons.
Multiple factors may legitimately be considered by the prosecutor in making the diversion decision, including the willingness of a defendant to waive potential civil claims against law enforcement personnel. Basically, these factors concern the character of the defendant, the type of offense, the availability of suitable treatment or educational facilities, and the particular relation of the case to other criminal justice goals. Determination of the appropriateness of diversion in a specified case will involve a subjective determination that, after consideration of all circumstances, the offender and the community will both benefit more by diversion than by prosecution.