A successful prosecutor, according to Utah County Attorney David Leavitt, doesn’t measure success on how many convictions are attained.
Leavitt, who has been sitting Utah County Attorney for about three months now, maintains that a successful prosecutor measures success in changing lives — which hopefully means fewer convictions over time.
That’s the philosophy behind a pre-filing diversion program, something he’s been working on behind the scenes since taking office. He compares the program to how police don’t pull over everyone who’s speeding, because it’s a waste of resources to pursue those going one, two or three miles over the speed limit.
The program would be aimed at people who commit lower-level, nonviolent crimes. Charging someone with a crime can affect the entire outcome of their lives, Leavitt said, including not being able to find a job or an apartment for years afterward.
“I believe of all the people we prosecute, only 20 percent of them are violent people,” Leavitt said. “That begs the question, shouldn’t we be finding a way to give them a punishment that doesn’t overburden the court system, doesn’t overburden the public defender’s office, the probation office, the prosecutor’s office, and at the same time allows them to move on with their life?”
That’s where a pre-filing diversion program comes in.
“I will either leave office as a complete failure on something that just didn’t work, or I will change this,” Leavitt said. “That’s a risk I’m willing to take, because we need it. We’re at a tipping point in society.”
What is a diversion program?
While standing in for one of his deputy attorneys since taking office, Leavitt was handling 138 cases on one court calendar alone. The majority of those cases, Leavitt said, involved people who committed nonviolent crimes, the type of crime where you can’t really articulate who the victim of the crime is other than maybe that person and their family.
“The person’s gonna flow in and out of the system over and over and over again, rinse and repeat,” Leavitt said. “They’re someone who’s on probation in three or four courts, and they come in, take their fine, don’t comply, we prosecute. They take their fine, don’t comply, we prosecute. It’s a cycle.”
The idea of pre-filing diversion is relatively simple. For certain, lower-level crimes, prosecutors can choose to “divert” a case before charges are filed. If the person then meets certain requirements, such as completing community service, paying restitution or attending drug rehabilitation, the case against them is dropped without charges ever being filed. Should that person not meet the requirements of the diversion program, charges would be filed and the case prosecuted as normal.
“Now, if society is better off with a felony charge, we still have that tool,” Leavitt said. “This is an additional tool that allows a defendant to salvage a life afterwards that doesn’t involve being a criminal.”
The decision of whether to use a diversion program is entirely at the discretion of the county prosecutor, and while there are diversion programs scattered in counties around the country, it’s still a relatively uncommon practice.
Leavitt tasked Chad Grunander, his opponent in the Republican primary who now serves as community service division chief under Leavitt, with the creation of a diversion program for the Utah County Attorney’s Office.
On a preliminary flow chart written on a whiteboard, Grunander showed how the program is likely to work, though many details are still being ironed out. They’re shooting for a tentative implementation date of June 1, though Leavitt said cases are already being cherry-picked to test and get kinks out of the program before it’s implemented on a large scale.
While screening cases, prosecutors will be able to divert a case they think would be a good fit for the diversion program. If the case isn’t approved, it gets prosecuted as normal. If approved, however, those accepted are referred to a supervision provider, where conditions will be set that they have to complete in order to be part of the program. That could include things like restitution, drug assessments/treatment, community service and class attendance.
While the exact standards for getting into the program are still being worked out, there are a few rules set in stone: no one suspected of murder, sex abuse or DUIs would be eligible for the program.
If there’s question about whether or not someone might be a good candidate for the program, Grunander said they’ll likely be assessed by a contracted provider to analyze risk, then go from there.
Those who complete the conditions of the program would have their file closed with prejudice, Grunander said. If someone violates the conditions of the program at any point, they would be charged and prosecuted.
The program would not require hiring any additional staff, and would largely utilize existing resources or have costs that are picked up by the program’s participants, meaning the additional cost to the county would be essentially nothing.
An example of someone who might move all the way through the program is a first-time drug user, Grunander said.
“Our biggest interest for a person like that if they’re not dealing and stuff like that, not endangering their children, not possessing weapons along with the drugs, is to get them help as soon as possible,” Grunander said.
If an attorney forwards the case to him, Grunander said, and he approves it, he would then prepare an agreement outlining the conditions he wanted completed. That agreement would then be forwarded to a private provider contracting with the county, as well as a letter sent to the offender, inviting them to participate in the program in lieu of traditional prosecution.
“I envision this private provider sending us a spreadsheet saying, ‘We have this many participants, they’re in compliance,’” Grunander said. “If somebody falls out of compliance, they’ll notify us and we’ll have the option to terminate them and send the case back for prosecution.”
The idea, Leavitt said, is that people change more readily when they have a punishment that occurs immediately after a crime. The way the justice system works, it often takes months to resolve something, and by the time the sentence is carried out, no association with what occurred and what the sentence is.
“Also, the worst punishment we give them, they may not realize for 10 to 20 years,” Leavitt said. “When they realize that the felony they got 15 years ago really does affect their life. So we give them the motivation on the front end to not get that.”
Grunander said the program will likely evolve over time, and can be expanded and changed as needed. They plan to work with graduate students at local universities to track results of the program long-term.
While there’s no way to know yet how many cases will be diverted through the program, Grunander said he hopes it will be enough to — eventually — put a dent in per-prosecutor caseload.
“We’re not doing it to reduce criminal filings, but we think that will be a byproduct of it,” Leavitt said. “We have a system that’s so overburdened ... We can do one of two things. We can build new jails, hire more prosecutors, build more courthouses, and continue this spiraling effect of more and more and more, or we can find a way to try and reduce the number of people that we’re prosecuting.
Grunander said the 28 prosecutors in the Utah County Attorney’s Office have nearly double the amount of cases recommended by the American Bar Association.
“This will divert some of our lower level cases, and allow us to focus on our violent crime, where we need to spend more of our efforts, resources, time and energy,” Grunander said.