Chapter III: Pretrial Issues, Adjudication and Sentencing

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Outline
Introduction
Policy Statements:
7
8
9
10
11
12
13
14
15
16
Conclusion
Additional Resources

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Policy Statement 9: Prosecutorial Review of Charges

Maximize the use of alternatives to prosecution through pretrial diversion in appropriate cases involving people with a mental illness.

Overview
Recommendations:
a
b
c

As the representative of the state, the prosecutor is responsible for ensuring that criminal cases are resolved in the best interests of justice. ^[1] The best interests of justice can sometimes be served by extending to the individual the opportunity to address issues that may have led to the commission of the alleged offense without prosecuting the individual. When the case involves a minor offense or first-time offender, the prosecutor has the authority in many jurisdictions to provide that opportunity through pretrial diversion.

Authorizing which defendants will be offered pretrial diversion rests with the prosecutor and is addressed on a case-by-case basis in accordance with the laws of the jurisdiction authorizing diversion. Unlike the pretrial release/detention decision discussed in Policy Statement 11, the decision of whether to offer the defendant the opportunity to participate in a pretrial diversion program is at the discretion of the prosecutor. Prosecutors typically rely on a number of criteria, including the potential danger to the community, the nature of the offense, the defendant's prior criminal record, and the wishes of the victim, in reaching a diversion decision. When faced with a defendant with a mental illness, prosecutors should also look at the relationship between the defendant's mental condition, whether the defendant was receiving adequate community treatment, and the behavior that led to the arrest.

Highlighting diversion programs designed especially for people with mental illness by no means suggests that these individuals should not have the same access to any diversion programs that are available in a jurisdiction to a person without mental illness.

Recommendations:

a.: Provide sufficient dispositional opportunities for people with mental illness for prosecutors to employ early in the court process.
b.: Ensure that the defense and the mental health community work together to provide, in appropriate cases, mental health information to the prosecutor for use in pretrial diversion decisions.
c.: Expand the options available in rural areas to provide mental health services for people with mental illness who might be candidates for pretrial diversion.

"The prosecutor must seek justice. In doing so there is a need to balance the interests of all members of society, but when the balance cannot be struck in an individual case, the interest of society is paramount for the prosecutor," (emphasis in the original). National District Attorneys Association, National Prosecution Standards, Commentary to Standard 1, p. 11.
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