Most people assume when they are charged with a crime there are only two possible outcomes: go to trial, or plead guilty to a less serious charge in exchange for a reduced sentence. However a little known – and little used – Arizona law also allows prosecutors to offer defendants who want to avoid trial “deferred prosecution,” also known as “diversion.” Under this program, if a defendant pays fines and restitution and attends supervised treatment programs, their case will be dismissed BEFORE they are found guilty of any crime. This is obviously a huge advantage to defendants who want to get jobs, school loans, or professional licenses; if they successfully complete diversion, they are left with a clean record of no conviction. Under the law passed by the Arizona legislature, which defendants get offered deferred prosecution is up to the “sole discretion” of the County Attorney. However, the Legislature does require each County Attorney to “[e]stablish and maintain” a record of how many people they enrolled in deferred prosecution programs each fiscal year. These legally mandated reports are archived on the website of the Arizona Prosecuting Attorney’s Advisory Council (APAAC), and they make for interesting reading.
In fiscal year 2015/2016, Pima County Attorney Barbara LaWall did not file any deferred prosecution report whatsoever, in violation of A.R.S. §11-362(B). Ms. LaWall did file a report in fiscal year 2014/2015, however it was only a general description of her diversion programs, and did not include any of the statistics that are required by state law. These statistics are supposed to inform the public how many defendants the County Attorney enrolled in diversion, and how many defendants successfully completed the program. Some of the 2015 stats did see daylight on January 20, 2016, when Ms. LaWall submitted a budget memo to Pima County Administrator Chuck Huckelberry in which she lauded her adult diversion program on the last page.
Despite the fact that, year after year, the largest percentage of felony cases Ms. LaWall files are drug cases, and despite her claim that the success rate for diversion is “93% for substance abuse charges,” the Pima County Attorney saw fit to offer deferred prosecution to only 3 felony defendants in 2015. Pima County taxpayers spent hundreds of thousands of dollars on the prosecution, probation supervision, and imprisonment of the rest.
Sadly, the number of defendants offered diversion is only decreasing. On page 9 of an outline of 2016 “financial highlights” the Pima County Attorney sent to the County Administrator and Board of Supervisors in support of her proposed budget for fiscal year 2017/2018, Ms. LaWall wrote that she diverted 165 fewer adults from prosecution in 2016 compared to 2015, despite the fact that the success rate for felony diversion increased from 60% to 80%, and the success rate for substance abuse diversion increased from 93% to 94%. Significantly, Ms. LaWall did not inform Mr. Huckelberry or the Board just how many adults accused of felonies she allowed into diversion in 2016.
Even for those very, very few defendants whom the Pima County Attorney does offer diversion / deferred prosecution to, their ability to succeed in the program and emerge with a clean record depends very much on the amount of money they have in their pockets.
In December, 2016, The New York Times published a series of articles examining diversion programs across the country. Their research revealed “that in many places, only people with money could afford a second chance” by entering a diversion program. This is because a defendant’s ability to enter and complete such a program hinges on their ability to pay the program’s fines and fees, which can be thousands of dollars. As the Times noted, “In a country where 27 million households make less than $25,000 a year, even $500 can be prohibitive.” The Times surveyed almost 200 defense lawyers across the U.S. about their clients’ experiences with local diversion programs, and two-thirds of the lawyers said fees were a barrier for their clients. A brief quiz accompanied the story and illustrated how legally and economically difficult it can be for many people to enroll in and successfully complete deferred prosecution programs.
Here in Pima County, as you can see from this standard fee schedule the Pima County Attorney attaches to each diversion plea, diversion costs defendants a minimum of $630 to $840. The true cost can be thousands of dollars more, depending on how much restitution the defendant must pay.
A defendant’s failure to make payments doesn’t just delay their completion of the program: failure to pay everything they owe ensures that the County Attorney terminates them from diversion and reinstates all of the original, more serious charges. Here is a complete diversion plea from 2012, omitting names and case numbers. On page 6 the plea clearly states,
This clause, which is in all diversion pleas the Pima County Attorney offers, exposes a sad truth of the entire deferred prosecution program: if you have money, you can complete the program and your case will be dismissed. If you are poor and cannot pay you will be terminated from the program – or never allowed into it in the first place – and you will almost certainly become a convicted felon for the rest of your life.
Equal protection under the law is one of the values that makes our country great. It was enshrined in our Constitution by the 14th amendment in 1868, after the crucible of the Civil War. It epitomizes one of the most important beliefs that Americans died by the hundreds of thousands to validate; that the law should protect us all equally, regardless of race and religion and gender and class. But how hollow has this promise become when the amount of money in your pocket determines how much justice you will receive?
– Joel Feinman
Postscript / Editors’s Note
This article was originally published on January 23, 2017. One day after its publication the Pima County Attorney released her fiscal year 2015/2016 diversion report on the website of the Arizona Prosecuting Attorney’s Advisory Council. The report is dated August 8, 2016, more than 6 months before it was finally published.
According to the report the Pima County Attorney offered deferred prosecution to only 5 felony defendants in 2015/2016, despite the program’s 80% success rate. In comparison the Pima County Attorney offered diversion to 8 individuals or businesses who were cited for selling tobacco to minors.
As of this writing the Pima County Attorney’s fiscal year 2014/2015 diversion report still omits how people the office enrolled in the deferred prosecution that year, in violation of A.R.S. §11-362(B).