Regarding PA 08-1, January Special Session you asked (1) what are “diversionary services” and (2) whether persistent drug use can be considered a “psychiatric disorder.”

Generally, a diversion program in our criminal justice system refers to a process that allows criminal defendants to avoid prosecution and incarceration by successfully completing court-sanctioned community-based treatment programs. While current law does not have any diversion program explicitly created for defendants with psychiatric disorders, defendants referred to existing diversionary programs such as accelerated rehabilitation are sometimes required to receive treatment and related services to address a defendant's psychiatric problems. Beginning October 1, 2008, PA 08-1, January Special Session establishes a diversionary program explicitly geared toward certain offenders who have a psychiatric disorder.

PA 08-1, January Special Session does not specify what services the diversionary program must provide, but the act specifies that the Judicial Department's Court Support Services Division (CSSD) must develop individualized treatment plans for applicants whom it determines are amenable to treatment. It directs CSSD, in collaboration with the Department of Mental Health and Addiction Services (DMHAS), to place the offender in a program that provides appropriate community supervision, treatment, and services. The act directs CSSD and DMHAS to develop standards and oversee appropriate treatment programs. They may contract with service providers to provide the programs.

It does not appear that persistent drug use by itself can be considered a “psychiatric disorder.” The act specifies that the diversion program is for people with psychiatric disabilities, which it defines as a mental or emotional condition, other than solely substance abuse, that (1) has substantial adverse effects on the defendant's ability to function and (2) requires care and treatment.

The law has four diversionary programs for defendants who have a substance abuse problem. A court can send someone to substance abuse treatment through four pretrial diversion programs: pretrial drug education, community service labor, treatment of drug and alcohol offenders in lieu of prosecution, and pretrial alcohol diversion. Courts have diverted between 12,000 and 13,000 people in each of the past five years. (We have enclosed a copy of a recent OLR report dealing with drug rehabilitation in Connecticut—2008-R-0006.)

Under current law, diversionary services for defendants with psychiatric disorders are sometimes referred to other diversionary programs. Diversionary services for these defendants are currently provided by private contractors under a memorandum of agreement between CSSD and DMHAS. These services include:

● services for co-occurring disorders,

● partial hospitalization (3-5 hours a day in intensive outpatient settings),

● individual and group counseling,

● linkage/referral to self-help groups and community supports,

● monitoring of self-administered medications,

● provision of assessments/evaluations, treatment plans, progress reports and other information as necessary, and

● development and implementation of aftercare treatment plans.

Presumably, similar services will be provided under the diversionary program created by PA 08-1, January Special Session.

The act creates a supervised diversionary program for people with psychiatric disabilities, which it defines as a mental or emotional condition, other than solely substance abuse, that (1) has substantial adverse effects on the defendant's ability to function and (2) requires care and treatment. People with these conditions who have been accused of less serious crimes or less serious motor vehicle violations that carry prison sentences are eligible unless they (1) are ineligible for accelerated rehabilitation due to the nature of the charges or previous participation in other diversionary programs or (2) have participated in the program twice before.

The act bars courts from making the accused's file available to the public when the accused files an application to participate in the program and states under oath in open court or in front of someone the clerk designates that he or she has not participated in the program more than once.

Court personnel must notify victims by registered or certified mail that the accused has applied for the program and that they have an opportunity to be heard by the court on the matter. The act directs CSSD to establish policies and procedures for requiring its employees to notify victims of (1) court-ordered participation conditions that directly affect the victim and (2) scheduled court appearances.

The court must refer applicants to CSSD for confirmation of eligibility and an assessment of his or her mental condition. The prosecutor must give CSSD a copy of the police report to assist in its assessment. CSSD must determine if the person is amenable to treatment and if appropriate services and treatment are available. If so, it must develop a treatment plan tailored to the person and present it to the court.

If the court approves the application, it must refer the accused to CSSD; and the division, in collaboration with DMHAS, must place him or her in a program that provides appropriate community supervision, treatment, and services. The act directs CSSD and DMHAS to develop standards and oversee appropriate treatment programs. They may contract with service providers to provide the programs.

Program participants must be supervised by a probation officer with a reduced caseload and specialized training in working with people with psychiatric disabilities. They must agree to (1) toll the statute of limitations for the crime or violation; (2) waive their speedy trial rights; and (3) any participation conditions CSSD establishes, including participating in program meetings or sessions.

If the accused satisfactorily completes the program, he or she may apply for dismissal of the charges. CSSD must provide the court with information about the person's participation; the court must dismiss the charges if it finds that he or she satisfactorily completed the program. If a participant does not apply for a dismissal, the act authorizes the court to dismiss the charges on its own motion if it finds satisfactory program completion. After dismissal, all records of the charges are erased, except for those in CSSD's database as described below. Program participants whose applications for dismissal are denied can appeal that determination.

If CSSD informs the court that an applicant is ineligible to participate in the diversionary program and the court makes an ineligibility determination on this basis, or if the division certifies with the court that a person admitted to the program did not successfully complete it, the act directs the court to (1) order the record to be unsealed, (2) enter a not guilty plea for the accused, and (3) immediately put the case on the trial list.

The act directs CSSD to develop and maintain a database concerning people admitted to the diversionary program that state and local police can gain access to when responding to incidents involving them. The information must include the person's name, date of birth, Social Security number, the crime or motor vehicle violation he or she was charged with and whether a deadly weapon or dangerous weapon was involved, and the dates he or she participated in the program. CSSD must enter this information in the database when the person enters the program, update it when necessary, and retain it for five years.

The act also requires CSSD to keep the (1) police report concerning the incident that gave rise to a diversionary program participant's application and (2) record of his or her supervision, including dates. It must provide this information to the court, prosecutor, and defense attorney whenever a participant applies for the program a second time. 

State law establishes four pretrial diversion programs through which a court can send someone to substance abuse treatment: separate pretrial drug and alcohol education programs, community service labor, and treatment in lieu of prosecution. The Judicial Branch also operates a special drug intervention session in three courts—Bridgeport, New Haven, and Danielson—where judges, attorneys, and other court officers can refer nonviolent, drug-dependent defendants to treatment.

The pretrial drug education and community service labor programs are for people charged with possession of drugs or drug paraphernalia. The latter program can be a pretrial diversion, part of a sentence of conditional discharge, or a condition of probation. The pretrial alcohol education system is for people charged with driving while under the influence. Courts can also commit drug- or alcohol-dependent offenders into treatment in lieu of prosecution or incarceration. The pretrial diversion aspect of the program covers all drug sale and possession crimes. A Judicial Branch publication, A Guide to Special Sessions and Diversionary Programs in Connecticut (available at http://www.jud.ct.gov/Publications/CR137P.pdf), provides more information on each alternative.

The Judicial Branch's Biennial Report provides data on participation in some of these programs. The available data show that the pre-trial alcohol education program is consistently the most heavily used and its use has grown over the past decade. Participation in the pre-trial drug education program has increased nearly five-fold over the past five years while participation in the community service labor program has dropped by over 50% over the same period. Table 1 displays the available data.

Table 1: Pretrial Drug and Alcohol Diversion Program Participation, FY 1997-06

Source: Judicial Branch, Biennial Reports, 1996-97 to 2005-06; Judicial Branch communication

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