Monitoring Participant Compliance

It is important for a prosecutor-led diversion program to monitor participant compliance with the requirements of the program. A prosecutor’s office should have a standardized process for how and when participant progress is reviewed and how input about compliance is obtained.  Because non-compliance may result in an extension of the diversion period or termination from the program, a prosecutor’s office may also want to plan for a regimen of intermediate sanctions to provide more flexibility regarding decisions involving program termination.

When developing a plan for monitoring of diversion compliance, a prosecutor’s office will want to consider the following:

  • Who will be responsible for tracking defendant’s compliance information and reporting such information to the prosecutor’s office?
  • What participant information is required by justice system stakeholders and how will it be shared by service providers in a way that protects confidentiality?
  • How frequently will cases be calendared for diversion compliance?
  • What happens if a defendant is non-compliant or gets re-arrested on new charges?
  • How a system can be used to address treatment failure and encourage treatment compliance so that program termination is not the only option for non-compliance?

Prosecutors can use a of graduated sanctions in order to promote participant accountability, and allow individuals to have multiple opportunities to succeed as part of their diversion compliance.

Some examples of graduated sanctions for prosecutors to consider include:

  • More frequent or intensive counseling that is proportionate to the nature of the violation and is trauma informed. For example, the required days of counseling may increase from two to four times per week.

  • A change in treatment or the addition of another treatment component. For example, defendants suffering from trauma may need to participate in both drug treatment and trauma-informed counseling if drug treatment alone is not successful.

  • Additional community service requirements that help connect defendants to their respective community and the services it may provide.

  • More frequent reporting requirements, or changes in the types of reporting required (i.e. in-person reporting instead of telephone reporting, greater frequency of reporting).

Below is one example of a graduated sanctions system, based on a Human Trafficking Intervention Court in New York City:

Implementation of graduated sanctions, as well as a prosecutor-led diversion model as a whole, will require different types of monitoring. For example, in addition to traditional court case management, prosecutor’s offices may also follow-up with individualized case management plans, which address issues such as housing or medical referrals. Successful compliance monitoring will require input from other justice system stakeholders to ensure that diversion efforts are successful.