Criminal diversion applications and other forms hang in a rack on the wall inside the Douglas County District Attorney's Office.

The Douglas County District Attorney’s Office granted a higher percentage of criminal diversions in 2017 than it did the previous year, according to numbers the office recently released, but the number of people receiving the break did hit a three-year low.

In 2017, the number of diversions the DA’s office granted was 93 percent of the number of diversion applications it received. That’s up from 85 percent in 2016, and about the same as 92 percent in 2015.

District Attorney Charles Branson emphasized that diversions — especially in the felony category — are offered on a case-by-case basis.

He said fluctuations from year to year are mainly due to what cases are charged, how many diversion applications the office receives and unique circumstances of each case.

“It just depends on what cases are charged. Our willingness to offer a diversion in those categories hasn’t changed over the years,” Branson said. “Our review of cases for diversions has been the same as it’s been for the last several years.”

photo by: Conrad Swanson

Douglas County District Attorney Charles Branson speaks at a news conference, Friday, Sept. 16, 2016.

For those reasons, Branson said the percentage of diversions granted can be a more useful figure to look at than the number granted.

The Douglas County DA’s office files roughly 1,500 cases a year, comprising about 800 misdemeanor cases and 700 felony cases, Branson said. Criminal traffic cases are in addition to those, he said.

Branson also noted that his office files less than half of all the cases it receives from law enforcement.

In 2017, the DA’s office received 254 applications for diversions, denied 25 of them and ultimately granted 237. Branson said the numbers of applications received and denied may not add up to the total number of applications filed in a given year. In some cases, for instance, applications may be approved in the calendar year after they were filed, a diversion may have been withdrawn or the case may have been dismissed for another reason.

Of the 237 diversions granted in 2017, 16 were for felony crimes, 144 were for misdemeanor crimes and 77 were for misdemeanor traffic crimes — which Branson said are primarily DUIs.

In 2016, the DA’s office received 363 applications for diversions, denied 15 of them and ultimately granted 310.

Of the 310 diversions granted in 2016, 19 were for felony crimes, 135 were for misdemeanor crimes and 156 were for traffic offenses.

Branson said the more striking fluctuations in traffic diversions may be attributed to law enforcement grants or special enforcements that result in more traffic cases being charged in certain years than others.

The ACLU has said that higher diversion rates, particularly felony diversions, would help cut down the number of people incarcerated in Douglas County. Critics of the local jail expansion proposal — scheduled for a public vote this spring — have also said granting more diversions would cut down the jail population.

Branson said he disagrees.

“A diversion is a source of conviction avoidance, typically not a source of jail avoidance,” he said, adding that the effect of more diversions on the county jail population would be “negligible, at best.”

That’s because the types of cases that are appropriate for diversion often aren’t ones that would carry imprisonment or jail time for convictions, he said.

Felonies that would carry a presumptive prison sentence would not be appropriate for diversion, Branson said. Examples include high-level felonies such as aggravated battery, robbery or many sex crimes.

In lower-level felonies for which diversion can be appropriate, typically those defendants, if convicted, would end up on probation as opposed to imprisoned, Branson said.

The situation is similar for criminal misdemeanor cases, he said. People granted diversions in those cases typically wouldn’t have been headed for jail anyway, but rather more likely have been sentenced to probation.

Branson said his office does grant diversions to people with prior criminal histories in some cases. He said it’s treated on a case-by-case basis as to the relevance of those prior convictions.

Obtaining a diversion is a way for the accused to avoid a criminal conviction, Branson said.

If a defendant’s application for diversion is approved, he or she enters an agreement with the DA to pay court costs, fines and fees, and to complete a behavioral modification program. That program is usually tailored to the circumstances of the case and might include orders to complete things such as drug and alcohol treatment, mental health counseling, anger management classes or batterer intervention training.

If the defendant successfully completes the program as promised in the diversion agreement, the charges are dismissed.

If the defendant fails to complete the diversion, the case is brought back to court and proceeds as a usual criminal case.

To notify defendants about the diversion option, Branson said information is printed on every charging document, and the applications are available online and on the wall in the DA’s office. He said defense attorneys are well aware applying for diversions is an option for their clients, as well.

The cost to apply for a diversion in Douglas County District Court is $100.

Criminal diversions in Douglas County

The following numbers are for diversions in adult criminal cases in Douglas County District Court. Those in the traffic category are primarily DUIs.

2017

Applications received: 254

Applications denied: 25

Diversions granted: 237 (93 percent)

Felony crimes: 16

Misdemeanor crimes: 144

Misdemeanor traffic crimes: 77

2016

Applications received: 363

Applications denied: 15

Diversions granted: 310 (85 percent)

Felony crimes: 19

Misdemeanor crimes: 135

Misdemeanor traffic crimes: 156

2015

Applications received: 297

Applications denied: 11

Diversions granted: 274 (92 percent)

Felony crimes: 34

Misdemeanor crimes: 130

Misdemeanor traffic crimes: 110

Note: Diversion applications received and denied do not necessarily equal total diversion agreements filed. Diversion may have been withdrawn or the case may have been dismissed for other reasons, or applications may not have been finalized at time of count.

Source: Douglas County DA