Pretrial Diversion for Person with Behavioral Health signed into law

Megan Martinez, Director of Diversion for the DA’s office

Building on the success of a program

ALAMOSA– SB22-010, known as the “Pretrial Diversion for Person with Behavioral Health” and sponsored by Senator Cleave Simpson, Senator Pete Lee and Representatives Benavides and Amabile, was signed into law this week by Governor Polis. The new legislation expands diversion programs that will divert individuals from the criminal justice system to treatment programs.

The “Diversion Program”, as it’s known in the Valley, creates an opportunity for a defendant, typically charged with their first offense committing a low-level crime, to be diverted from the criminal justice system before they go to trial.

The program was created to serve both the defendant who committed a crime and the victim of the crime that was committed against them. If the defendant successfully completes the terms of the agreement, he or she established with the Diversion program, they will be spared the consequences that result from having a record with the criminal justice system, including the impact that record can have on their future. Also, being spared those consequences will hopefully decrease the likelihood that they will commit additional crimes in the future.

 For the victim, the program can be of service by encouraging “restoration” – the chance to stabilize their lives after victimization - and, when possible, receiving restitution from the defendant.

The Alamosa program was created in 2019 by Megan Martinez, Director of Diversion for the DA’s office. Since its inception, it has been very successful. Martinez reports that she has averaged having between 30 and 50 clients in her program per quarter or roughly 150 to 200 clients per year.

Based on data she has collected for 2020, Martinez reports a 2% recidivism rate among those who successfully completed the terms of their agreement. In other words, out of 200 clients she has managed on her caseload, only 4 went on to commit additional crimes.

But Martinez was clear about what Diversion is and what it is not.

“Right now, in the eyes of the public,” she says, “Diversion is being lumped in with dismissals and deferment offers made by the attorneys with the DA’s office. Diversion is not the same – not, at all. Clients with the Diversion Program are trying to fix themselves and the community they live in. The validity of the program has come into question because of that misunderstanding. It needs to be understood that the integrity of the program is as strong as it has ever been. I started it in 2019 and it hasn’t changed in how it operates.”

Martinez is also clear that the Diversion Program is anything but a ‘get out of jail free’ card. She says Diversion is “harder” than going to court because the terms are very specific about what clients need to do – whether it’s going to classes or doing community service or paying restitution to the victim. Failure to complete all the terms of the agreement will result in the client going to court.

“The client has to want to change,” she says. “They have to take responsibility for what they did to the victim and the community where they live, and they have to want to…fix it…although it’s much more involved than just ‘a fix.’”.

According to Martinez, Diversion is also better for victims. “Victims get more of a say in what happens than they have in a court case handled by the judicial system. If the victim wants it, [we] will mediate a discussion with the victim and the client who committed the crime against them. And if there is restitution to be paid, it also typically happens faster with the Diversion Program.”

Martinez is also very clear about what cases are eligible for the Diversion Program. “I don’t get involved in cases with major crimes or serious felonies. I only take clients who have committed misdemeanors – like criminal mischief, disorderly conduct, shoplifting, underage drinking or DUIs where the level of alcohol is very low.”

She has not taken on any drug related offenses to date.

Martinez says the legislation that was just signed into law will have “great impact” because it will open up the possibility for accessing state and federal funding to pay for treatment of people with behavioral health issues and disorders. But Martinez is clear that the crime the person committed has to be directly tied to the issue or disorder the person is diagnosed as having.

When asked if Diversion is appropriate in those cases, Martinez – who takes a relatively “hard-nosed” approach to her program – is clear in her answer. “It is very appropriate for a population – as long as they have been screened and are managed by case managers closely and effectively. And it’s very appropriate in an area that has such a high rate of poverty, as we do in the valley.”

In the past, Martinez has accepted clients into her program and – when that client either discloses a behavioral health issue to her on their own or the police report suggests that a behavioral health issue was involved – has referred the client to behavioral health service providers in the area. But the challenge has been with the client’s ability to pay for the behavioral health services they would receive.

“Insurance companies don’t pay for anger management, say in the case of someone who has committed domestic violence. And a lot of people don’t have the money to pay for treatment themselves.”

Passage of this legislation will allow that treatment to now become a reality.

Martinez is very clear about the one underlying determinant that is distinctly tied to the success her program has achieved. “This is initiated by the defendant. He or she has to really want to change. I don’t babysit the clients. They have to go to their classes, do their community service, pay restitution, whatever is involved. If they don’t do those things they’ve agreed to do, they go to court. They have to want to change.”

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