Regarding municipal court diversions programs, there are two. The newer prgram that was signed into law in 2013 is the “conditional dismissal program.” It is relatively new program designed to divert disorderly persons offenses unrelated to marijuana and drug paraphernalia. The latter two offenses are addressed by the other municipal court diversion program, the conditional discharge.
Like the superior court’s pretrial intervention program (PTI), the municipal court programs usually involve some sort of supervision by the county’s probation department. However, the oversight and conditions of the supervision with the municipal court programs tend to be much less rigorous. Typically, a program participant is called upon one time to pass a drug test. Sometimes, that call never comes and the “oversight” is presumably limited to the county probation department’s making sure the participant is not charged with any new offenses. Another difference between the superior court and municipal court diversion programs is the length of supervision which is typically one to three years at the superior court level, but never more than a year at the municipal court level.
Whereas the conditional discharge program is often over-used, i.e. used by attorneys who fail to recognize that a conviction for a municipal court offense is often less harmful than a diversion, the newer conditional dismissal program is, as this writer predicted, almost never used. This is due to two principle reasons.
First, the long-standing conditional discharge program is a way to divert drug-related charges that most prosecutors are very hesitant to downgrade or amend. The Attorney General specifically prohibits municipal prosecutors from amending marijuana or drug paraphernalia charges unless a detailed set of conditions are satisfied. On the other hand, there is no such longstanding prohibition against amending or downgrading disorderly persons offenses unrelated to marijuana or drug paraphernalia. Therefore, municipal prosecutors have much more discretion with regard to offering downgrades to local ordinance violations when the offense at issue does not involve marijuana or drug paraphernalia. Since most people would prefer to pay an ordinance fine and be done with their case without any supervision from the probation department, an ordinance remains a much more attractive alternative to the conditional dismissal program.
The second principle reason that the conditional dismissal program is not nearly as popular as the conditional discharge program is that the conditional dismissal program requires an admission of guilt as a pre-requisite to participation. While this requirement is merely an inconvenience to some, it makes the program all-but-worthless to undocumented citizens who could be deported by virtue of the guilty plea, even if the charge is ultimately going to be dismissed upon successful completion of the program. On the other hand, the conditional discharge program does not require an admission of guilt. Note that judges and prosecutors do retain the discretion to require a guilty plea with the conditional discharge program, but this discretion is very rarely exercised.
Note further that it is not just undocumented citizens that can be adversely affected by the conditional dismissal program’s guilty plea requirement. Anyone who enters a guilty plea and then violates a condition of the program has their case returned to court for sentencing since they have already pleaded guilty. On the other hand, people who fail out of a diversionary program without entering a guilty plea have their case returned to court where they are still free to fight the charges. A conditional discharge without a guilty plea thus provides an additional buffer between the defendant and a potential jail sentence, a buffer that is unavailable through the conditional dismissal program.
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