Legal and extralegal factors in attorney recommendations of pretrial diversion

Abstract

This study used the uncertainty avoidance perspective to examine several legal and extralegal factors deemed to be important for prosecutors and defense attorneys in an adult defendant’s initial referral to pretrial diversion. Findings indicated that previous community supervision was ranked highly by both attorney groups and the defendant’s adult criminal record, pending cases, and the police report were ranked higher in importance by prosecutors. The defendant’s mental health, drug history, and community ties were viewed as significant extralegal factors in referral to diversion. The authors also examine perceptions of diversion revocations. Consistent with their role, prosecutors were generally less tolerant of offender failures than defense attorneys, particularly for offenders on diversion for prostitution and drug offenses. Prosecutors and defense attorneys in this study, however, responded similarly to technical violations for use of illegal drugs, failure to report, failure to complete treatment, pay victim restitution in full, or not finishing community service.

Keywords:

• pretrial diversion
• legal factors
• extralegal factors
• attorney perspectives
• uncertainty avoidance

Acknowledgements

A similar version of this article was presented at the Southwestern Association of Criminal Justice Annual Meeting, October 8–10, 2009. We thank Christine Schloss for providing the data. The views expressed and conclusions drawn are those of the authors and do not necessarily represent the views of commission or county officials.

Notes

1. The term driving while impaired (DWI) encompasses both driving under the influence (DUI) and driving while intoxicated (DWI) (see, e.g., Marlowe et al., 2009).

2. The jurisdiction under study is a three county area (Jackson, Clay, and Cass counties) that is home to 975,900 citizens (roughly 70% Caucasian, 23% African‐American, and 7% Hispanic, with 15% of families below the poverty line). These three counties represent 53% of the entire metropolitan area of Kansas City, which is estimated to total 1.83 million people across two states. Kansas City metropolitan area includes an additional four counties in the state of Missouri (Johnson, Lafayette, Platte, and Ray) of 189,453 people and two counties in the state of Kansas (Johnson and Wyandotte) with 670,687 people (US Census Bureau, 2008).

3. In the jurisdiction under study, the Chief Prosecutor is elected, and in turn, appoints the deputy prosecutor and all assistant prosecutors. Judges in this jurisdiction are initially selected using a nonpartisan appointment plan, and then retained through the popular vote. Under this method, which is used in more than 30 states, a selection group consisting of citizens, attorneys, and judges selects three candidates from the larger applicant pool, and forwards these names to the governor. The governor selects the finalist from among the three candidates. The judge then stands for retention by the voters at each general election. A simple majority of ‘yes’ votes keeps the judge in office until the next election. Judges serve between 4 and 12 years depending on the level of the court.