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Prosecuting authorities in the American criminal justice system have broad discretion in deciding how to handle a criminal matter. A prosecutor may file formal charges against an individual suspect and pursue a guilty verdict by means of a plea bargain or trial. The vast majority of cases that are processed to a verdict within the criminal justice system result in the conviction and punishment of the offender, with only a tiny percentage resulting in acquittal. Alternatively, a prosecutor (or, in some instances, the police) can dispose of a case by dismissing the charges outright, if the circumstances warrant such a disposition. Principled reasons that a prosecutor might dismiss charges include a determination that there is insufficient evidence to establish guilt beyond a reasonable doubt, the failure of a material witness to cooperate with the prosecution, a determination that the evidence was unlawfully obtained by the police, or for policy reasons. Lying in between these two options is a third reason—to seek a satisfactory disposition through informal means.
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The term informal disposition refers broadly to the manner of obtaining a final disposition of a criminal matter without reliance on the normal processes of the criminal justice system that would result in conviction of the offender. Informal dispositions are obtained without any judicial determination of guilt or innocence. It should be noted, however, that many of the programs available for informal dispositions may also be utilized as sentencing alternatives for those convicted through the traditional criminal process. Thus, the demarcation between the informal and formal processes may not be clear, but rather may resemble a fine continuum of options available to prosecuting authorities or the police.
A principal form of informal disposition is a process known as ‘‘pretrial diversion’’ by which an alleged offender’s case may be transferred into structured programs for rehabilitative purposes, such as mental health treatment or drug or alcohol abuse treatment, or for the payment of restitution and fines or community service. Alternatively, the criminal prosecution may be ‘‘deferred’’ for a period of time with the understanding that unless the person commits a subsequent offense in that period, the charges will be dismissed. Yet another option is to transfer an individual’s case to another forum that would provide warnings against future wrongdoing as well as periodic supervision. Examples include the transfer of a minor to juvenile court and the dismissal of domestic violence cases in exchange for the individual’s consent to permit community supervision.
Thus, the informal disposition process serves a screening function to determine which cases merit prosecution and which merit an alternative mode of treatment, usually for purposes of rehabilitation. Informal dispositions also serve the purpose of reducing the overburdened criminal caseloads of prosecutors and judges, as well as, in some jurisdictions, public defenders. The drive to reduce caseloads, cut costs, and promote the rehabilitation of offenders who have the potential to become law-abiding citizens has fueled a trend to create innovative new programs and even new forms of ‘‘courts’’ for producing the desired results without resort to the traditional criminal adjudication process. A renewed interest in better serving the needs of victims of crime has also spurred the development of programs for mediating cases between the offender and the victim, in lieu of the formal criminal process.
This research paper surveys the primary types of informal dispositions available to the criminal justice system and explores both the availability of such modes of disposition as well as the process by which the decision to proceed informally is made.
The Principal Types of Informal Dispositions
In one sense, there is so little uniformity in the types of informal dispositions available that it is nearly impossible to speak generally on the subject. Most states have adopted their own unique statutes on informal dispositions, and courts within the states have begun to establish their own procedural rules to govern certain types of informal dispositions. Furthermore, prosecuting offices may establish their own set of guidelines (Landis). Community groups have proved to be very creative in designing a variety of innovative rehabilitative programs.
In another sense, however, most jurisdictions offer the same basic menu of programs. Generally speaking, informal dispositions take three basic shapes: (1) referrals to structured programs of various types; (2) conditional dispositions; and (3) dismissal or a noncriminal disposition with warnings and supervision.
Referrals to Programs
Pretrial diversion, also known as deferred prosecution, is the most common example of an informal disposition. Pretrial diversion involves the referral of individuals, often before arraignment, to rehabilitative or restitution programs in lieu of criminal prosecution. Individuals with plans to enter the military may also qualify for pretrial diversion on the condition that they actually do enter into military service. The individual’s criminal charges are dropped upon completion of the treatment program or upon meeting the agreed-upon conditions. Such programs are designed to promote rehabilitation and minimize the stigma that attaches upon conviction.
Offenders who are directed into treatment as a condition of pretrial diversion or deferred adjudication tend to remain in treatment longer than individuals who voluntarily commit themselves for treatment. The length of treatment has been shown to be crucial to the long-term rehabilitation of the individual. Thus, the coercive nature of the imposition of treatment may be more effective in bringing about the desired change in the individual than voluntarily applied treatment. Both the public at large and court personnel are willing to accept community-based diversion programs, a fact bolstered by the increasing number of programs initiated by community groups (Sigler and Lamb).
A wide variety of offenses may qualify for pretrial diversion, and statutes may enumerate the offenses eligible for such treatment. Generally, the categories of offenses eligible for pretrial diversion will include relatively minor offenses for which a person could be sentenced to a jail term. Traffic offenses, for example, would not likely be eligible, since their violation does not ordinarily carry a jail term. On the other hand, a person charged with driving while under the influence of alcohol traditionally has been eligible for pretrial diversion. More recently, however, some legislatures have taken the position that those charged with driving while under the influence of alcohol should be specifically disqualified for participation in pretrial diversion programs. Other categories of offenses generally eligible for pretrial diversion include minor drug charges, bad check writing (false pretenses), petty theft, and domestic violence offenses.
Most cases of domestic violence or maltreatment of children by parents are handled by means of pretrial diversion. Many states require treatment as a condition of pretrial diversion. These cases are rarely prosecuted due to a variety of reasons, such as the concern over the damage to the family unit by removing the culpable parent or spouse. Mandatory treatment has been found to reduce recidivism in these cases, but not in cases involving child sexual abuse (Lederman and Malik). However, drop-out rates are high for battering spouses who are sent to treatment as a condition of pretrial diversion and subsequent prosecution does not often occur (Hanna).
Prosecutors frequently issue criminal ‘‘nocontact’’ orders or criminal protection orders as a condition of pretrial diversion. These orders typically prohibit the defendant from returning to the home or directly or indirectly contacting the victim. Statutes in several states require the issuance of no-contact orders in domestic violence cases. Unlike civil protective orders obtained at the request of the victim, criminal nocontact orders are obtained upon the request of the prosecutor, even over the objection of the victim (O’Connor).
A fierce debate persists in the area of domestic violence with regard to the advantages and disadvantages of mandatory intervention by both police and prosecutors. Most states have implemented statutes requiring a more aggressive approach to family intervention by the police, through the adoption of policies calling for either preferential or mandatory arrest. Similarly, prosecutors have adopted ‘‘no drop’’ policies or preferential prosecution policies. These trends represent the acknowledgment that domestic violence is a serious criminal matter and that the decision whether to treat such assaults as crimes should not be left to the victim (O’Connor). Not surprisingly, some jurisdictions are moving away from pretrial diversion and are beginning to require a conviction before treatment can be ordered.
For other types of offenses, developed programs since the early 1990s give the courts new options for the informal disposition of cases. For example, the large volume of drug cases entering the court system has prompted a search for alternatives to criminal prosecution for alleged offenders who have serious drug abuse problems. A new type of court, known as a ‘‘drug treatment court’’ (DTC), has emerged as a means for implementing court-supervised drug treatment without resort to the formal adjudicative process. Individuals will be brought before a DTC almost immediately after arrest so that they may begin their treatment. Individuals will be required to complete a course of treatment that takes from one to two years to complete. The treatment process involves detoxification, counseling, education, vocational courses, group meetings, urine testing, and weekly court appearances. Failure to complete the program leads to prosecution on the original charges. The charges are dropped, however, upon successful completion. There are approximately two hundred DTCs in the United States today (Reisig). Pretrial diversion into a treatment program may be the only way for some drug offenders to avoid long prison sentences under mandatory sentencing laws that exist in many jurisdictions.
DTCs operate in a fundamentally different way than regular criminal courts in that the roles of the court participants are transformed. The judge, prosecutor, defense counsel, probation officer, law enforcement and correctional officers, and treatment specialists all become part of the ‘‘DTC team’’ and work together in a collaborative effort to motivate the individual to stay in treatment (Hora et al.). As with other diversionary programs, the prosecutor in a DTC screens files for acceptable candidates, but this screening process may be done in cooperation with the defense counsel. The role of defense counsel is not to advance the legal defense of the individual, but to assist the team in motivating the individual to turn away from drug abusing behavior. Treatment providers also attend court sessions and may advise the court of the individual’s progress and make recommendations.
Yet another development of fairly recent vintage is the establishment of victim-offender reconciliation programs (VORP), also known as victim-offender mediation programs. VORP programs, which first arrived in the United States in the mid-1970s, had proliferated by the year 2000 (Mika). VORP programs embody a radically different vision of justice often referred to as ‘‘restorative justice.’’ Rather than simply serving as a vehicle for streamlining the caseloads of criminal courts or providing some alternative therapeutic treatment for the rehabilitation of offenders, VORP programs are motivated by a concern to serve the needs of the individual victims of crime, as opposed to the interests of the state. The conflict, thus, is viewed as one between individuals. VORP programs bring victims of crime face-to-face with offenders for purposes of informally resolving their conflict. With the assistance of trained mediators, victims and offenders have a meeting to discuss the facts of the case, the impact it has had on their lives, and their feelings about the offense. Each party also has an opportunity to ask questions of one another. The parties then mutually discuss and reach a resolution. The resolution is a written, enforceable agreement signed by the parties that specifies the amount and schedule for delivery of restitution and/or community service (Mika).
Typically, community-based private groups operate VORP programs, and prosecutors, judges, or probation officers refer cases directly to them. Both the program administrators as well as the criminal justice official (typically the prosecutor) screen cases for eligibility. VORP has been used primarily for minor property offenses and cases involving juvenile offenders, although it has also been used by judges as a form of sentencing after conviction in more serious cases, such as rape and even vehicular homicide. Many states have placed statutory limitations on the use of VORP for domestic abuse cases, consistent with the trend to view domestic abuse cases as serious assault offenses and not as trivial family disputes. Ironically, the emphasis on victims’ rights may actually increase the use of mediation for more serious felony offenses. Texas, for example, has recently enacted a statute providing for mediation in felony criminal proceedings before the trial court accepts a guilty plea or plea of no contest, but only upon the request of the victim (Rendon).
Victim restitution and community service programs are another alternative communitybased program for pretrial diversion that focus on serving the victims of crime. Individuals sent to these programs are put to work doing paid community service, and a part of their pay is turned over to the victim.
For juvenile offenders, a separate set of programs have been established. The juvenile courts themselves may be considered a program that diverts minors from the adult criminal system into a system designed to rehabilitate them without attaching stigma. Most practitioners, however, recognize that juvenile courts involve the same type of formal proceedings as adult criminal courts and a finding of juvenile delinquency can also create stigma. Thus, diversionary programs have been created specifically to remove juvenile offenders from the juvenile courts (Panzer). Some of these are counterparts to the adult versions also available in communities, such as Victim-Offender Mediation Programs and Victim Restitution and Community Service Programs.
Other pretrial diversionary programs have been designed especially for juveniles. For example, ‘‘teen courts’’ have emerged as a community response for handling nonviolent, first-time juvenile offenders. Many such programs originated in the schools as a way to deal with offenses committed at school. The concept has taken root in communities as well, which now accept referrals from the juvenile courts. In teen courts, community teen volunteers typically staff the programs, supervised by adult professionals. Teens may play the roles of prosecutor, defense counsel, judge, and jurors. Teen courts informally adjudicate the offense and, upon finding guilt, may impose sentences of restitution and/or community service. In contrast to the juvenile court process, teen court dispositions do not result in a court record, nor any formal or informal probation record.
‘‘Youth accountability boards’’ have been developed in other communities to process nonserious juvenile offenses. Panels of three to five volunteer adults serve on such boards. Cases are referred by juvenile probation officers, and the board may accept or reject them. Juveniles who are sent to youth accountability boards appear at a hearing, accompanied by their parents. The board gives the juvenile the opportunity to plead his or her case. If the juvenile is found culpable, the board typically requires the juvenile and the parents to sign a contract that may provide for rehabilitative treatment, curfew, nonassociation with known gang members, restitution, and/or community service. The contract holds the parents financially liable for any restitution that must be paid, and parents may also be required to undergo rehabilitative treatment (Panzer).
Finally, ‘‘family conferences’’ are an innovation imported from New Zealand and Australia. Family conferences bring together a larger group of people to take collective responsibility for a youthful offender and to assist the offender in carrying out his or her agreement. Participants in the conference may include family, friends, teachers, and coworkers. Family conferences are organized by trained police officers, probation officers, or social services. This is not yet a concept that has taken root in the United States. Such programs exist in only a few communities (Kurki).
Deferred adjudication, another extremely common form of informal disposition, permits an individual to avoid obtaining a criminal record, but only after successfully completing a period of time without re-arrest (generally six months) and completing whatever course of treatment the court may impose. The deferred adjudication process requires the individual to plead guilty before the court will order treatment. If after the allotted period the defendant has successfully fulfilled the conditions imposed, then the criminal record for the offense will be expunged. Thus, deferred adjudication operates in a similar manner as pretrial diversion except that deferred adjudication requires a guilty plea before treatment will be ordered.
Warning and Supervision
Informal dispositions may take the form of outright dismissals of charges with warnings to the individual to avoid reoffending the law and on the condition that individual will agree to be supervised for a period of time. In juvenile cases, a program called ‘‘informal probation’’ allows a juvenile and his or her parents to avoid even the filing of criminal charges against the juvenile by entering into contract with a juvenile probation officer, who may maintain an office in a police station. Informal probation contracts, usually to be completed in six months, will usually contain several requirements, including a curfew, making adequate grades in school, and avoidance of certain associations (with known gang members, for example). Informal probation also calls for adequate supervision by the probation officer. The contract may also call for the completion of counseling, educational programs, or community service, or the payment of restitution (Panzer). Parental involvement is a key component of informal probation programs. The sufficiency of a parent’s supervision of a juvenile may also be monitored (Panzer).
Informal Disposition and The Decision-Making Process
Traditionally, the decision whether to proceed by means of an informal disposition has usually begun with the defense attorney, and this remains true to date. It is incumbent on defense attorneys to identify those cases that would generally merit informal disposition and request such disposition from the prosecutor, court, and/ or program administrator. In some instances, statutes delineate factors that prosecutors and/or courts should consider in making the determination. Factors typically considered relevant to the decision include: the individual’s amenability to rehabilitation, motivation in committing the crime, employment record, family ties, age, past criminal record, and mental and physical condition. For VORP programs, the willingness of both the victim and offender to participate in mediation are central to the referral decision.
Once a defense attorney determines that an individual should be considered favorably for an informal disposition, the next step will depend on the nature of the disposition sought. For pretrial diversion and referral to a rehabilitative program, the program administrator may be the first person to review the individual’s request for admission into the program. If the program administrator determines that the individual does qualify for admission, then the next person who considers the request may be the prosecutor or it may be the judge.
Statutes and court rules governing pretrial diversion programs vary, but at least in some places it is no longer within the absolute discretion of the prosecutor whether to refer an individual to pretrial diversion. Some statutes and court rules permit courts to dismiss charges and refer individuals to pretrial diversion, even over the objection of the prosecutor. In other places, the prosecution maintains a veto power over the decision. Efforts were made in the 1970s by highly regarded groups like the American Law Institute (ALI) to convince prosecutors to publish guidelines such as the American Law Institute’s (ALI) Model Code of Pre-Arraignment Procedure (1975) to make public the criteria upon which prosecutorial charging decisions are made. For the most part, these efforts have failed, and prosecutors continue to make these decisions without providing the public any means for evaluating the decision-making process.
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