Implementing the diversion process : determinants of prosecutorial discretion

Abstract

In the past fifteen years Pretrial Diversion has been introduced into the court structure to deal more effectively with the internal problems of the Court. The decision to divert the alleged criminal offender from the court system has historically been made informally, and officially can be made at all stages of the criminal justice process.

Currently, little is known about the factors, both legal and extra-legal, which influence the prosecutor in administering pretrial diversion. Thus, the present study investigates those extra-legal factors which influence the prosecutor's decision to divert. The factors investigated are : 1) Community Pressure, 2) Accused Power Resources, 3) Lawyer, 4) Economic Factors, 5) Police, 6) Court and 7) Diversion Program. Base don these factors a causal model was developed and analyzed.

In order to investigate and evaluate this model, a questionnaire was administered to one hundred and eight four (184) prosecutors across the United States. A similar questionnaire was administered to one hundred and forty eight (148) last year law students from Capital Law School, Columbus, Ohio. The law students acted as a comparison group. The results of the survey showed that the variable identified by the literature were positively correlated with the prosecutors' decision to divert. The relationships, although positive, were observed to be weak (i.e., pressure/prosecutor, .09, power/prosecutor, .20, lawyer/prosecutor, .11, money/prosecutor, .06, and police/ prosecutor, .17). Although found in the literature, these variables did not explain the prosecutor's decision to divert to a sufficient degree. Thus, all hypotheses subsequently were rejected.

Further investigation between the two groups on the effect of the treatment (the effect caused by the extra-legal factors on the prosecutor group) revealed that there is no significant difference between the two groups. By using the "t" test, it was shown that the difference between the two groups had a high degree of probability (P=.320) of it happening by chance alone. Thus, to sufficiently explain the prosecutor's decision to divert, a need arises for further investigation.

In further investigating this phenomena, the researcher made three suggestions that would possibly better explain this decision. These three suggestions were: 1) implementing other survey techniques to attain a better response from those surveyed (i.e., interview or observation), 2) researching other variables that interact with the prosecutor and 3) re-examining the literature of the variables used in the present study. Therefore, by implementing these three suggestions, a more profound explanation of the influence on the prosecutor will be observed.