Monday, January 11, 2010

Pretrial Diversion v. First Offender Probation

The availability of pretrial diversion is an example of one advantage which the federal criminal justice system has over the Georgia, (state), criminal justice system. In other words, as a former federal prosecutor, I was able to "divert" some appropriate cases out of the criminal justice system through pretrial diversion. This alternative is unavailable to state prosecutors in Georgia. First offender probation is the closest alternative available to state prosecutors, but it requires going to court, getting sentenced by a judge, and serving a probationary sentence before the slate is "wiped clean."
With pretrial diversion, on the other hand, the defendant never goes to court. Instead, the defendant, who has no criminal record, (and who has committed a minor white collar offense), and his or her criminal defense lawyer, must simply sign a pretrial diversion agreement in which the defendant generally agrees to make restitution and perhaps do some community service. As long as they abide by the agreement, they can avoid prosecution. As a federal prosecutor, I generally used pretrial diversion in minor cases involving a simple, one-time theft, e.g. by a bank teller.
Generally, maybe it is true that the states can't learn much from the feds! But don't you agree that the states should at least copy the federal government by allowing pretrial diversion as another sentencing alternative?

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