A study of the local criminal justice system in Boyle and Mercer counties recommends many changes in how defendants are offered alternatives to incarceration, including expanding the use of pretrial diversion and adding the use of deferred prosecution.

But Commonwealth’s Attorney Richie Bottoms says he believes there are benefits to the current way pretrial diversion works. He said he doesn’t agree with the 349-page study’s recommendation to develop new guidelines for use of pretrial diversion.

“The way the report comments on diversion, to me, it doesn’t even scratch the surface with the way diversions are handled and the good (they) can do,” Bottoms said. “… Maybe they (the consultants who developed the study) didn’t have time to fully explore that.”

The study takes issue in its third chapter with how felony defendants are selected for diversion and the mandatory five-year term for all diversions.

Diversion allows some people charged with certain Class D felonies — such as possession of a controlled substance or theft by unlawful taking over $500 — to spend some amount of time on supervised release instead of being sentenced and spending time in jail. Defendants on diversion follow conditions of their release, such as drug treatment or testing. If they successfully meet their requirements and do not substantially reoffend for the duration of their diversion, they can have the charges against them dropped.

Boyle and Mercer counties paid $75,000 for the study, which was released in its final version earlier this month and will be presented to the public this Thursday. The counties commissioned the study in order to help them control the inmate population and skyrocketing costs at their shared jail. The study makes 50 recommendations for changes across many different areas of the criminal justice system, including the recommendation Bottoms disagrees with: “Guidelines for pretrial diversion and deferred prosecution should be improved to address ket program components for both felony and misdemeanor participants.”

The study states that felony offenders are currently selected for diversion by Bottoms “subjectively,” based on “their likelihood of success on diversion.” It recommends developing “uniform eligibility criteria” that would be used to decide who does or does not get diversion.

“Consideration should be given to a broader range of offenders than just a select few who are picked because of their high likelihood of being successful,” the study states.

But Bottoms said the study overlooks the fact that diversion is not the best option for everyone who is eligible.

“I try to engage a conversation with the defense attorney and then we look to see if together we think the person has a good opportunity for success because quite often, a defendant or the defense attorney doesn’t want a diversion, even if the person is eligible, because they feel like the person might not be successful,” Bottoms said. “… They choose the misdemeanor route because they don’t have the confidence that they can be successful on diversion.”

Bottoms explained: He offers misdemeanor plea deals in some cases as a way to “assist” defendants and sometimes to help them get drug treatment. Defendants could plead guilty to the less significant misdemeanor, or they could be released on diversion. But if they reoffend while on diversion, they can often wind up back in jail for a longer sentence and on more severe charges than they would have had if they had simply pleaded guilty to the lesser charge.

“I don’t want to talk someone else into a higher sentence,” Bottoms said. “We try to make a judgment call based upon a person’s eligibility and the person’s opportunity for success. … We really, truly try to decide in conjunction with the defense attorney what’s best in the situation for the individual. Because a diversion is a privilege and we don’t just throw those out there loosely.”

Bottoms said he has seen multiple defendants in court who have “20 or 30” prior offenses on their records — “odds are they are not going to be successful” on diversion, he said.

Bottoms said he’s actually offered diversions to some defendants he thought were good candidates and “they’ve said no, they would rather take a lesser sentence and serve their time.”

“That’s an individual choice, I guess,” he said. “We can’t parent everybody that comes through the system and we shouldn’t. I think our system, the way we do it in Boyle and Mercer counties, works.”

Five years

The jail study also questions the current blanket policy of requiring a five-year term for all felony diversions.

“The circuit court judge sets a mandatory length of supervision of five years for every participant. No consideration is to be given for good behavior or compliance,” the study reads. “In addition, there are fees of $25 per month for supervision and $10 per drug test. Thus, it is not surprising that many potentially eligible offenders choose to serve jail time rather (than) considering a diversion program.

“This is in contrast to other Kentucky jurisdictions that set shorter diversion periods and/or have policies which allow P&P to recommend to the judge that a diversion participant be released early when they have been compliant for a certain period of time.”

The study warns that research has shown in some cases that “excessive supervision is counter-productive.”

Bottoms said he doesn’t agree with the idea that some people should be let “out from under the umbrella” of supervision early because of their behavior.

“Some people need that guidance. I’ve had people tell me they do better under supervision,” he said. “I think that the time serves a purpose.”

Bottoms said diversion lengths do vary around the state — in Washington County, for example, he sometimes serves as a special prosecutor and diversions might be only two years long. But he’s in favor of maintaining the current five-year policy in Boyle and Mercer counties.

“There’s advantages both ways,” he said. “There’s a lot of flexibility and there’s not a lot of consistency in the commonwealth — and I don’t think there should be.”

Deferred prosecution

The study also recommends creating guidelines for the use of “deferred prosecution,” which doesn’t require a defendant to plead guilty, but does require supervision. “State statute specifies that deferred prosecution is preferred,” the study reads. “However, that option is not utilized by the commonwealth attorney.”

“If a person is eligible for deferred prosecution, they’re also eligible for diversion, and I feel like there’s more opportunity to help someone through diversion than through deferred prosecution,” Bottoms said.

Asked how diversion can be more helpful, Bottoms said it comes down to a personal preference in how different prosecutors and judicial systems work.

The study recommends that guidelines similar to those for felony diversion be developed for misdemeanor defendants in district court. Diversion for a lower charge involved six to 12 months of unsupervised released, during which participants must similarly meet program requirements such as drug education or restitution, according to the study.

“The Boyle County attorney did not indicate if there were specific, well-defined criteria for assessing suitability for misdemeanor pretrial diversion,” the study reads. “… The Boyle County attorney indicated that she is increasing the use of misdemeanor diversion.”

The study notes that the state Probation and Parole Office “did not respond to the consultant’s request for data on the number of felony offenders on pretrial diversion.”

The study’s recommendation includes that Probation and Parole should be able “to recommend early release of felony diversion and deferred prosecution participants.”

Bottoms said the pretrial diversion program is “more of a fluid concept” by design and he doesn’t like the idea of nailing down who will and will not be given diversion in Boyle and Mercer.

“I don’t see a need for it because there’s a (state law) that specifically outlines who is eligible and who is not eligible,” he said. “… I don’t think that specific guidelines beyond what the statutory guidelines are” would be beneficial.

Besides the recommendation concerning diversion and deferred prosecution, the study’s third chapter makes several recommendations that were already released in an earlier draft:

• redesigning the use of “graduated sanctions” and “discretionary detention” — alternatives to re-jailing defendants out on probation or parole when they mess up;

• issuing summons for defendants when they fail to make a court date, instead of charging and re-jailing them; and

• developing a certified drug court that incorporates drug treatment as a requirement.