New Legislation Would Create Unprecedented Power for Alabama DAs

The following is a ‘quick and dirty’ summary of the provisions of the pretrial diversion bill which has passed the Senate and is now in the House. This is a 20 page piece of legislation, with many specifics which had to be omitted from the summary in order to keep it short enough to be useful. Hopefully, this summary will help the members get the flavor of the thing and spot any potential problems. Underlining indicates a provision or area that appears particularly alarming.

1. Generally, this act would allow any district attorney throughout the state without a local act to establish a discretionary pretrial diversion program.

2. It includes a definitional section in which the following terms are defined:

“Offender” is defined as any person who has committed or been charged with the crime as defined by the code of Alabama 1975, or municipal ordinance, which was committed in the jurisdiction of the state of Alabama.

“Pretrial” is defined as a term including but not limited to any moment prior to , within, or during the disposition of a criminal or quasi- criminal action.

3. The act provides that any pretrial diversion program established under subsection (a) of the bill shall be under the direct supervision and sole control of the district attorney.

4. The bill further provides that a person charged with a criminal offense which is specified in the bill whose jurisdiction is in the circuit, district or municipal court in a circuit in which a pretrial diversion program has been created pursuant to the bill may apply to the district attorney of the circuit for admittance to the program. The bill lists specific types of offenses which are eligible for the program. Although all misdemeanors are generally eligible, the district attorney may determine that a person charged with a misdemeanor offense is not eligible to apply for the program, if it is in the best interest of the victim, the offender, the community, or justice. The bill lists nine classifications of persons who are ineligible to be considered for the pretrial diversion program. These include classifications that would be expected, such as class A felonies or capital offenses, but there is also a provision disallowing any person “deemed by the district attorney to be a threat to the safety or well-being of the community”. The bill and then lists 11 circumstances which would be “appropriate” for the district attorney to consider in deciding whether an individual should be admitted into pretrial diversion, but does not specify any weight to be given to the particular circumstances nor require the district attorney to consider any of them. Finally, the bill allows the district attorney to waive any of the standards specified if justice or special circumstances dictate. Overall, the bill gives the district attorney virtual carte blanche to decide who does and does not get into the program.

5. The district attorney may require the defendant to provide certain information to be used in considering his application. This would include information about the applicant’s past criminal history, educational history, work history, family history, medical or psychiatric treatment history, psychological tests, or any other information concerning the person which the district attorney believes is applicable to the determination of whether the person should be admitted to the program. Furthermore, the district attorney may require the person to submit any examinations, test, or evaluation process the district attorney deems appropriate. The applicant may be required to pay the costs of those tests or evaluations.

6. The bill contains a listing of nine requirements each offender who enters a pretrial diversion program shall have to satisfy. Among those is a requirement that the offender provide a statement admitting his or her participation in and responsibility for the offense which is the subject of the application, and specifies that said statement shall be admissible in any criminal trial. Other pretrial diversion program records or records related pretrial diversion program admission are not to be admissible in criminal or civil trials. Communications between pretrial diversion applicants and counselors are to be privileged unless a court of competent jurisdiction determines there is a compelling public interest in disclosing the communication.

7. The act provides that the district attorney may establish the time at which application for the program shall be made, and provides that the district attorney in his discretion may admit an offender to the program before he is arrested.

8. The exact amount of the fees that may be charged to applicants for the program are subject to the district attorney’s discretion, except that the bill does establish caps for certain types of cases, i.e., for felony offenses, up to $900, and for misdemeanor offenses, up to $750. An applicant may not be denied admission solely because of indigency, and the district attorney has the discretion to waive or reduce the fees for just cause. The fees are to be collected by the district attorney and deposited into the district attorney’s solicitors fund.

9. As a condition of being admitted to the pretrial diversion program, the district attorney may require the offender to agree to any of 26 specific conditions. One of those conditions is that the offender agree to the court’s jurisdiction beyond the term of pretrial diversion, incarceration, probation, parole, or end of sentence for the purposes of the collection of court ordered or agreed-upon fines, fees, court costs, and restitution. Another is to have an ignition interlock device installed in the offender’s vehicle at the offender’s expense.

10. All fees paid by offenders pursuant to the act are to be paid into the district attorney solicitors funds and are to be used to pay costs associated with the administration of the program or for “any other law enforcement purpose”. An additional $20 per applicant is to be paid to the office of prosecution services for creation and maintenance of an offender database which is described in the Act.

11. District attorneys who have existing pretrial diversion programs in their circuits may choose to adopt the act in its entirety or any portion or portions that the district attorney believes would best to serve the interest of justice and the community.

12.The Office of prosecution services will have to develop and maintain a pretrial diversion offender database. Each district attorney must submit the name and identifying personal vital information of participants. Information in the database concerning any applicant may be used by any district attorney in determining admittance into a pretrial diversion program or its equivalent. A district attorney may submit prior pretrial diversion dispositions from any jurisdiction contained within the database to the court for the purpose of assisting the court in its ruling with regard to a ruling on youthful offender, or any first offender or first offender type judicial determination.

13. The act becomes effective immediately following its passage on approval by the governor, or it’s otherwise becoming law.

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