Diversion and Restorative Justice

What is Restorative Justice?

Restorative justice is a voluntary process by which offenders collectively identify and address obligations resulting from an offense. So, under the system, the offender accepts responsibility for his or her actions. The process supports the offender as the offender makes reparation to the victim or the community. Moreover, the program diverts a defendant to a community-based restorative justice program at any stage of a case.

This is a novel approach to dealing with issues that face our criminal justice system. For many people, the experience in the criminal justice system will be a one-time incident or mistake. Restorative justice attempts to divert otherwise low level criminal offenses to a disposition that doesn't permanently alter the life of the offender. Most importantly, the victim feels whole and satisfied with the process and outcome.

When is Restorative Justice Available?

It is NOT available where the defendant is charged with a sexual offense, an offense against a family or household member, or an offense resulting in serious bodily injury or death.

Moreover, participation in a community-based justice program is not evidence or an admission of guilt, delinquency, or civil liability in current or subsequent legal proceedings against any participant. Any statement made during the course of an assignment is confidential. The statement will not be subject to disclosure to any judicial or administrative proceeding.

Additionally, no information obtained can used in any stage of a criminal investigation or prosecution. Any evidence obtained through an independent source discovered by lawful means is not admitted at such proceedings.

What is Diversion?

Diversion allows the person to make an agreement with the District Attorney before the criminal process begins. The key here is the agreement starts BEFORE the criminal process starts.

This means that there could be no evidence of the crime on your record. Sometimes, an attorney can bring facts to the district attorney to consider it before they recommend it. With diversion, there is no evidence of the crime on your record. A dismissal is still a footprint for someone looking into your background to research and investigate.

Moreover, there have been some changes to the laws:

Above all, Chapter 276A of Commonwealth law, dealing with certified and approved programs to diverting a defendant, has been changed to no longer require probation to certify and approve programs to which a defendant may be diverted. Diversion program possibilities include:

  • Medical
  • Education
  • Social
  • Substance use treatment
  • Training
  • Community service work
  • Counseling

Also, there is no longer an age restriction. To be eligible for diversion, a defendant must not have previously been convicted of a crime. They also cannot have any warrants, continuances, appeals, or criminal cases pending in any court. The crime with which the person is charged must also have a term of imprisonment that can be imposed. It cannot be one of the following excluded offenses:

  • Any of the offenses listed in L. c. 265, excluding assault and battery
  • Any of the offenses included in c. 119 or c. 268A
  • Any offense with a penalty greater than five years
  • Offense with a minimum term penalty of jail
  • Any offense ineligible for decriminalization

Moreover, the date of these changes is April 13, 2018.

Third
, judges must consider the recommendation of any victim on the diversion of the defendant.

The recommendation is not binding on the judge. District Court judges can get rid of a complaint even if the Commonwealth doesn't approve. However, the statute does not allow requiring a district attorney or police department to accept an offender.

Also remember that the ability to divert to a program not approved does not require future application. It may be available for pending case and the list of excluded offenses would not be applicable. Eligibility at the time of trial offense determines eligibility. However, defendants 22 years of age and older not previously eligible qualify with offenses committed after April 13, 2018.

Child Diversion (Section 75)

A district attorney can divert any child for whom there is probable cause to issue a complain. A district attorney may request a report from a program.

A judge can issue a process as is necessary to bring the child to court.

When the child is before the court, the judge may allow the child to speak. A judge may order that the stay of proceedings terminated.

When the initial 90-day stay of proceedings expires, the probation officer or the program director will submit to the court a report indicating the successful completion of diversion by the child or recommending an extension of the stay of proceedings for not more than an additional 90 days so that the child can complete the diversion program successfully.

If the conditions of diversion have not been met, the child’s attorney must be notified prior to the termination of the child from diversion. The judge can grant an extension to the stay of proceedings if the child provides good cause for failing to comply with the conditions of diversion.

IF YOU OR A LOVED ONE HAVE A QUESTION ABOUT RESTORATIVE JUSTICE, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE
CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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