Lock ’em up and throw away the key is an old adage that people apply to prosecutors, but it really couldn’t be further from the truth about what we do every day. Sure, we prosecute violent offenders, murderers, rapists and the like, and we do lock them up. But we do that because that’s where they belong and law permits it. But as prosecutors, we also work within the court system to help offenders stay out of prison and achieve rehabilitation if the offender is ready.
We have many options in Delaware County to help rehabilitate offenders who find themselves in the courtrooms of one of our two General Division Common Pleas judges, David Gormley and Jim Schuck. Two examples include, Intervention in Lieu of Conviction (a statutory scheme) and the Prosecutor’s Diversion Program (created by statute, but managed by the prosecutor’s office). With both programs, ILC or the Prosecutor’s Diversion Program, if an offender successfully completes the program, their “charge/case” is dismissed and they have no criminal conviction on their permanent record. It’s a huge incentive to offenders to participate in these programs.
Not everyone who commits a felony qualifies for either ILC or the Prosecutor’s Diversion Program. No violent offenders may participate as an example. And for ILC, an offender must obtain an evaluation from a mental health treatment provider that explains to the court that the offender likely would not have committed the crime they are accused of if the offender did not have a substance abuse disorder or a specific mental health diagnosis. Once an offender obtains this evaluation, a hearing is set where the offender pleads guilty, this evaluation is then accepted by the court, but the offender is not sentenced. The offender’s plea of guilty is held in abeyance until the offender successfully completes ILC or if the offender is not successful, the court then proceeds directly to sentencing.
The Prosecutor’s Diversion Program is different than ILC. The Diversion Program in our office existed when I became prosecutor in 2019, but I put the program on pause during 2022. I paused the program to reevaluate it and to determine if there was a better, more efficient way to manage the program. I also wanted to ensure there was a need for this program within our criminal justice system that would justify the expense to taxpayers (it’s not an additional financial expense — but it requires county employees to expend time and effort on the program that could be spent elsewhere).
While we were reevaluating the program, we reached out to other prosecutor offices to see how their diversion programs worked and compiled a list of things we liked and things we didn’t like. Then we met with Public Defender Carlos Crawford and his team to walk through the program and make changes. Carlos had great suggestions also to help make the program better. One thing I really wanted to change was to be able to recognize potential Diversion Program candidates before their case was presented to grand jury. Carlos and I worked together to come up with a letter that could be mailed to offenders that encouraged them to reach out to the Public Defender’s Office to see if they qualified for our Diversion Program. It also is important to me that my office not be communicating with offenders and “convincing” the offenders directly that they should participate — I wanted a defense attorney, like Carlos and his team, to handle those conversations.
It is even more stringent to qualify for the Prosecutor’s Diversion Program than ILC — and that too is by design. Repeat offenders do not qualify for the program; and likewise, cannot be accused of violent offenses. Offenders who are qualified to participate in ILC may not instead participate in the prosecutor’s program, even if they otherwise qualify. ILC is a specific and intense program designed at helping offenders who may be addicts or suffer from a mental health issue. The Prosecutor’s Diversion Program seeks to serve a different population than ILC participates but still who deserve a shot at a second chance without having a conviction on their permanent record. Once a person qualifies for the Prosecutor’s Diversion Program, the process is somewhat the same as ILC. The offender enters a guilty plea that is held in abeyance until the offender’s successful or unsuccessful completion of the Diversion Program.
Once placed into the Diversion Program, the offender meets with a specific probation officer in the office of Adult Court Services, and this officer ensures the offender is drug tested as needed, completes community service hours, and also pays any restitution owed. If all of this done, an offender generally completes diversion successfully after 12 months. If that is the case, the offender’s charge/case is dismissed and there is then no conviction on the offender’s permanent record.
Needless to say, when we were reevaluating the program, we saw that there was a need for a program other than ILC. It’s been about one year since we reactivated the Prosecutor’s Diversion Program, and we currently have eight individuals in the program. We also restructured the responsibilities of the program, and while the title of the program may be “Prosecutor’s Diversion Program,” it really is the product of multiple criminal justice agencies working together for the benefit of a criminal offender and our community. Like I said at the beginning, prosecutors are not in the business to solely lock ’em up and throw away the key. We are here to serve our community, and that includes helping from time to time the offenders we prosecute with programs like diversion.
Melissa A. Schiffel is the Delaware County prosecutor.
