The Eastern District of Wisconsin recently approved a post plea diversion court. Here is the text of an email from Eastern District Assistant Federal Defender Krista Halla-Valdes explaining the details.
Recently, the courts and all participating agencies approved a Post Guilty Plea/Presentence Diversion Court to begin in the EDWI. Although the specifics of how this “diversion” court will run is in the working stages, I have been asked to reach out to colleagues to see if there are potential clients that may be a good fit for the program. Essentially, the program will run similar to a “traditional” pre-trial diversion type program with one huge exception, your client will have to sign a plea agreement up front which will result in one of two things upon completion of the program: dismissal of the case OR a lesser sentence imposed (likely probation). Pre-trial diversion still exists, although rarely used, and this is not meant to take the place of that so if you have a person that you believe is a good candidate for traditional diversion, continue to pursue that avenue. However, if that doesn’t work or you have a client that has some sort of issue that contributed to his/her criminal behavior and a “treatment” plan can be put into place to address that issue, this may be the route to go.
Here is a breakdown of how it will work:
1. Any of the agencies can present a client for participation in the program, however everyone realizes it is much more likely to come from us (the defense attorneys).
2. A proposal written in letter format regarding why this client would be a good fit for the program should be drafted. The proposal is similar to a sentencing memorandum in terms of the history and characteristics of your client. And it is important to address what you believe is the “issue” your client is dealing with that may have contributed to the criminal conduct.
3. That proposal is given to the AUSA handling the case.
4. If the AUSA agrees, the proposal is given to the probation office who is asked to write a short report regarding the person’s risk factors, needs, prior criminal history, etc. Essentially, they are making a recommendation as to whether the client would be a good fit for this program and what services/treatment programs the client should need to avoid future criminal conduct.
5. The proposal and report is presented to the diversion court team (AUSA Bill Lipscomb, AFD Krista Halla-Valdes, USPO, and Judge) for approval.
6. Prior to beginning the program, an 11(c)(1)(C) plea agreement would be signed indicating exactly what the resolution of the case will be upon the client’s successful completion of the program, ie. dismissal of the case or sentence of probation, etc.
7. Successful completion of the program results in case going back to sentencing court and the terms of the plea agreement being followed: dismissal or lesser sentence. Failure to follow program requirements may result in termination from the program by the diversion court team.
What is the program?
It is similar to being on supervised release or pretrial release for anywhere from 12 to 18 months. The model for the program is based on “drug court” or “problem-solving courts.” If the client has an identifiable problem, like addiction or mental health issues, they are referred to specific treatment for that issue. Be creative — if the issue is under-employment or gambling or something else that may be addressed through community resources/programming, it is definitely worth putting it into a proposal. At a minimum, monthly in-person reporting to the court as to the person’s progress in the program is required. It is likely that either Judge Pepper or Magistrate Judge Joseph will be holding those monthly or bi-monthly sessions. Periods of short incarceration (up to 7 days), as well as other sanctions such as EM or increased testing or reporting, may be used for minor violations (positive drug test, missing counseling appointments, etc.). The biggest thing is that the client will have to follow through on whatever “case plan” is established for them.
Who are the clients that should be proposed?
Nobody is specifically excluded although I have been told persons charged with sex offense or violent offenses will not be approved by the government. With that being said, if you have an individual that is charged with possession of CP and has mental health issues that can be addressed through counseling or medication or both, it may be worth making the pitch. Government agreed to this program with the thought that low-level drug users indicted in multi-defendant conspiracies are the prospective participants. However, as the courts would not agree to a program that is only a “drug court,” all clients that have an identifiable issue that contributed to their crime that may be addressed through supervision and programming/treatment can be considered as potential participants.
How to proceed?
Use me as the point person to talk to about potential clients you believe would be a good fit. Bounce ideas off of me, discuss what should be in the proposal to the AUSA, and even send me a rough draft. I can also reach out to AUSA Bill Lipscomb up front to get an idea of what the government’s position is likely to be. The hope is that if we get a few clients in the program that are successful, it will keep the program around longer and it will be more likely for the government to agree to more clients entering the program.