Pretrial diversion is a practice in federal court where the prosecutor decides to divert the defendant to a rehabilitation program rather than prosecute him on criminal charges in United States District Court. The practice is not frequent, but it does provide an alternative to ordinary prosecution. The program is known as PTD.
The decision to divert a defendant is a matter of official discretion with the United States Attorney.
The decision to divert the defendant usually occurs before charges are filed, although it can occur at any time prior to trial. The defendant’s decision to participate in the pretrial diversion program is voluntary.
The defendant must sign a written agreement, called the Pretrial Diversion Agreement, wherein he waives his right to a speedy trial and also waives any statute of limitations defense. The defendant must be represented by an attorney when making the agreement.
PTD is administered by Pretrial Services, which is the office that monitors defendants prior to trial (such as defendants released on recognizance or with conditions). The Pretrial Services office will evaluate the defendant prior to the diversion for suitability, and must agree to pretrial diversion.
Many pretrial diversions involve payment of restitution to victims (compensation for losses). The program may last as long as 18 months. If the offender satisfactorily completes the program, pretrial services will notify the US Attorney. Pretrial services will file an FBI Disposition Form R-84 showing that prosecution was declined.
If the offender violates any of the rules of pretrial diversion, then the US Attorney can initiate prosecution. But the decision to go forward with prosecution is exclusively the prosecutor’s. It does not matter whether the violation was minor or major. The decision to terminate the pretrial diversion belongs to the US Attorney. And so, pretrial diversion is a precarious situation for the defendant, because his fate is in the hands of the federal government.
Eligibility for the pretrial diversion program is determined by several factors.
First, the US Attorney will not agree to pretrial diversion where the case should be diverted to state prosecutors according to the priorities of the Department of Justice (DOJ). In cases where the DOJ has determined from a policy standpoint that prosecution is not important to the federal government, the case is referred to state courts. Very few state courts have pretrial diversion programs for felony offenses.
Second, no one with two or more prior felony convictions is eligible for pretrial diversion. The definition of a felony conviction under federal law may have a different meaning than state law. For example, in Illinois, first offender probation for a controlled substance under 720 ILCS 570/410, or for cannabis under 720 ILCS 550/10, is not a conviction. But in most federal courts, it is probably a conviction for purposes of disqualification from pretrial diversion.
Third, a person who is an addict is not allowed to participate in pretrial diversion. A history of substance abuse (alcohol or drugs), causes that person to be ineligible.
Fourth, a public official or former public official accused of violation of the public trust will not be offered pretrial diversion. However, this goes without saying, since the US Attorney’s policy is to prosecute government corruption to the fullest extent.
Finally, any person who is accused of an offense that relates to national security or foreign affairs will not be eligible for pretrial diversion.