OLYMPIA - Since May, the Thurston County prosecuting attorney has allowed anyone potentially facing one of 29 misdemeanor offenses in Thurston County District Court to "opt out" of the court system without ever being charged with a crime.
The potential defendants are given a choice: They can either complete a “precharge” diversion program run by a local nonprofit agency, Friendship Diversion Services, or face a misdemeanor charge in court.
In the eight months since the precharge diversion program began, more than 900 people have been referred to it for crimes ranging from marijuana possession to possession of a dangerous weapon. Of the referrals, 269 people have enrolled in the program in Thurston County.
Supporters, including Prosecutor Ed Holm, say the program reduces the workload in the prosecutor’s office and the court system, both of which have reduced staffing because of county budget cuts. And, they say, it provides people who might have committed minor crimes a way to avoid a criminal record.
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Critics, primarily local defense attorneys, faulted the program on several fronts. They say:
• It takes needed fee revenue out of the criminal justice system.
• It fails to screen participants properly for prior criminal records.
• It deprives some people of due process of law because they must pay to enter the program and accept punitive measures before they are even charged – let alone convicted – of a crime.
That last point troubles defense attorney John Sinclair.
“The fact of the matter is they may not have committed a crime,” he said. “It’s coercive.”
Sinclair and other defense attorneys, including Charles Lane, say the practice amounts to privatizing district court probation.
“It’s outsourcing probation services, is what it’s doing,” Sinclair said.
It also could mean lost revenue for the court system. Lane said district court does not receive the fees it normally gets for misdemeanor cases when accused offenders enroll in precharge diversion.
“How much money is being lost in fees that would have been paid?” he asked.
Thurston County District Court’s assistant administrator, Jerry Pearson, verified last week that the precharge diversion program does result in fewer cases being filed in district court, and as a result, fewer court fees are collected.
Former Thurston County prosecutor Rod Franzen, now a defense attorney, was especially critical of the precharge diversion program.
Franzen and other defense lawyers said the program takes away the traditional oversight and checks and balances afforded defendants when they enter a diversion program after being charged with a crime.
PRECHARGE VS. POST-CHARGE
Post-charge diversion programs have been used in the courts for decades; they typically allow defendants to avoid criminal convictions in exchange for completing an alternative program. Normally, in a post-charge diversion program, a judge and defense lawyers participate in the decision, Franzen said.
“Due process requires that the court system oversees criminal cases,” he said. “They shouldn’t be handled by a private agency at the whim of the prosecuting attorney.”
And by requiring people entering the program to pay a substantial fee to Friendship, the program is “compelling money to be paid to a private agency,” Franzen said.
Franzen and Sinclair said that they support Friendship and think it does good work for offenders who enroll in diversion programs after being charged with a crime.
Friendship executive director “Barbara Miller and Friendship have provided a real service to the people of Thurston County, and they have for years,” Franzen said. “But this is a bad program.”
Sinclair and other defense lawyers readily concede that the precharge diversion program takes potential clients and fees away from local attorneys – who, they say, already have seen business decline because of the recession. But Holm and Thurston County Chief Deputy Prosecuting Attorney Jon Tunheim – who is running to replace the retiring Holm – said in a recent interview that it is not their responsibility to ensure that criminal defense attorneys stay in business.
Lane was complimentary toward one aspect of Thurston County’s precharge diversion program. He said he’s glad that many misdemeanor defendants now have the chance to wipe their records clean by completing the program, because he thinks most of the charges eligible for precharge diversion, such as marijuana possession, are a waste of the court’s resources and shouldn’t be brought in the first place.
Holm and Tunheim said budget cuts in the prosecutor’s office and district court probation services are among the main reasons for implementing the precharge diversion program. Budget cuts have claimed 12 employees in the prosecutor’s office, and there currently are two prosecutors handling cases in district court, down from four previously. Tunheim said the prosecutor’s office hopes to hire an additional prosecutor.
Holm and Tunheim said the precharge diversion program is a good policy. It saves taxpayers the cost of putting additional misdemeanor cases through the court system. At the same time, it gives potential offenders the chance to avoid a criminal conviction but still requires them to face consequences. Friendship enrollees who fail to comply with the program face a criminal charge in district court.
The program also frees prosecutors to devote time and energy to more serious misdemeanor cases, such as those involving domestic violence and repeat driving-while-intoxicated offenses, Holm and Tunheim said.
“Precharge diversion lets our prosecutors focus on the more serious crimes,” Holm said.
Tunheim said the only type of district court cases never referred to precharge diversion are for misdemeanor domestic violence and driving while intoxicated – although some of those might be eligible for post-charge diversion.
The Thurston County Sheriff’s Office is the only local law enforcement agency affected by the precharge diversion program. Olympia, Lacey and Tumwater do not have similar programs. Each has its own misdemeanor court and municipal prosecutors who are not part of the county prosecutor’s office.
Officials in Olympia, Lacey and Tumwater said that misdemeanor suspects arrested, cited or referred to their courts aren’t allowed in a diversion program until a charge has been filed.
The Sheriff’s Office typically refers its misdemeanor cases to the Thurston County prosecutor’s office, where a prosecuting attorney decides whether a criminal charge is warranted.
Thurston County Sheriff Dan Kimball said he supports the new program. He said he initially had reservations because he thought it might take charging authority away from sheriff’s deputies. But Kimball said the prosecutor’s office has told him that in cases in which a deputy thinks a criminal charge, and not precharge diversion, is warranted, the deputy can “cite” a charge for the offender in court. Kimball said it’s his understanding that when a deputy “cites” a case, it is not eligible for diversion.
Jeremy Pawloski: 360-754-5465