Taking A Stand: We get one free pass out of jail
In a rarity this weekend, I found myself reading James Clark’s column in which he questioned why all these embezzlers are avoiding jail time by getting judicial and pre-trial diversions.
I think we’ve all noticed it. Some person steals tens of thousands of dollars and gets a judicial diversion while the next guy writes a hot check for $10 and gets a jail sentence.
With this in mind, I called District Attorney General Dale Potter to ask him what the deal is and was somewhat surprised to find there’s not a big limit on who can ask and be granted a diversion, especially a judicial diversion. Folks actually have a right to ask for these diversions.
The court or prosecutors, if they do not agree, must come up with legal reasons to prevent the defendant from getting a diversion. A judge or prosecutor who does not have a good reason to deny a diversion request can be overturned by the court of appeals.
First, let me explain the differences between diversions. A pre-trial diversion is granted by the prosecutor. In a pre-trial, the defendant is not required to enter a guilty plea. Instead, they are on two years probation, and provided they get in no further trouble, the charges are simply dropped. If they re-offend, then the charges can be resurrected.
In a judicial diversion, which is granted by the judge not the prosecutor, the defendant must enter a guilty plea, admitting guilt to the crime. Then the defendant is on probation for an agreed number of years, with his or her record erased if the probation is successfully completed. Failure to avoid further trouble means the person is violated and can be sent to jail.
With the background on diversions, the next logical question is who can qualify for a diversion. Contrary to urban legend, you don’t have to have a spotless record to qualify. You can have misdemeanor convictions on your record and still get a diversion. So long as you haven’t been convicted of a felony or Class A misdemeanor and the crime is not a sexual crime or a Class A or Class B felony, and you’ve never been sentenced to any jail time, you may submit an application for pre-trial or judicial diversion.
A diversion is only supposed to be granted once in a lifetime to a defendant, kind of like a second chance to an offender. The offender must also swear to the facts of the case, meaning they can be held liable for perjury if they lie on their application. And, yes, before you ask, economic status can have something to do with it in that one thing which is looked at is the ability of the offender to make restitution to the victim. However, in cases of judicial diversion, payment of restitution is part of the probation and can be done over time.
There are two major advantages of diversions over entering a plea to a crime. First and most obviously, there is no jail time. However, there can be hurdles such as restitution and required employment and things of that nature. Second, and perhaps most compelling, is that the person’s record is expunged or erased at the end of the diversion. This means you can commit a felony and not be saddled with a felony record for the rest of your life.
Folks, if you are smart enough to qualify for them, these are like get-out-of-jail-free cards provided to you by our government, a sort of second chance program. Just be careful how you use it since it’s a one-time deal.
Duane Sherrill is a reporter for the Standard. He can be reached at 473-2191 or by e-mail at news@southernstandard.com.