Diversion allows a criminal defendant to resolve his case through treatment or counseling rather than court proceedings. In most cases, when diversion is available, it’s the best possible option for the defendant.
In Massachusetts a veteran charged with a crime may qualify for diversion (pursuant to M.G.L. c. 276A, § 10) if all of the following requirements are met:
- The defendant’s service designates him as a veteran under Massachusetts law. See M.G.L. c. 4, § 7, ¶ 43.
- The defendant is being charged with a crime that is punishable by imprisonment.
- The defendant has no criminal record, aside from minor traffic offenses.
- The defendant has no outstanding warrants and is not involved in any pending criminal proceedings.
- The defendant has received a program/treatment recommendation from the Veterans’ Administration (VA) or the Massachusetts Department of Veteran Services (DVS).
The veteran status of a criminal defendant is typically determined by the probation department during the defendant’s initial intake prior to arraignment.
Prosecutors can, and often will, object to the defendant’s request to have his case diverted. But it is up to the judge, not the prosecutor, to determine whether diversion is appropriate.
A veteran who may qualify for diversion can, at or prior to his initial court appearance, ask the judge to continue the arraignment for 14 days (under M.G.L. c. 276A, § 11). During that time, the defendant must reach out to the VA or the DVS and undergo an assessment to determine whether diversion is a viable option. The court’s probation department is typically the best place to find contact information for VA and DVS diversion specialists.