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Through diversion, some criminal defendants can agree to participate in rehabilitative programs or counseling instead facing punishment.

In 2018, Massachusetts Governor Charlie Baker signed in to law An Act Relative to Criminal Justice Reform (the “Act”).  The Act greatly expanded the breadth and scope of diversion in the Bay State.

According to Chief Justice Paul Dawley’s memorandum summarizing the Act:

Now a defendant, if eligible, can be diverted to any program of community supervision and services including, but not limited to, medical, educational, vocational, social, substance use disorder treatment and psychological services, corrective and preventive guidance, training, performance of community service work, counseling, provision for residence in a halfway house or other suitable placement, and other rehabilitative services designed to protect the public and benefit the individual provided the court receives a recommendation from a program that he would, in light of the capacities of and guidelines governing it, benefit from participation in said program.

Dawley Memorandum, p. 10.

To be eligible for diversion, the defendant must have no prior adult convictions, and no outstanding warrants, continuances, appeals or any pending criminal cases in any state or federal court.

Moreover, the Act expressly bars a number of offenses from being diverted. 

These include any offense

  • in G.L. c. 265 (“Crimes Against the Person”), except assault and battery per G.L. c. 265, § 13A(a);
  • in G.L. c. 119  (“Protection and Care of Children”);
  • in G.L. c. 268A (“Conduct of Public Officials and Employees”);
  • with a penalty of imprisonment greater than 5 years; or
  • with a mandatory minimum penalty;
  • which is ineligible for decriminalization per G.L. c. 277, § 70C except assault and battery per G.L. c. 265, § 13A(a).

District court must have final jurisdiction over the matter in order to permit diversion.