Office of the Inspector General
U.S. Department of Justice

Audit of the Department’s Use of
Pretrial Diversion and
Diversion-Based Court Programs
as Alternatives to Incarceration

Audit Division 16-19

July 2016

AUDIT OF THE DEPARTMENT’S USE OF PRETRIAL DIVERSION

AND DIVERSION-BASED COURT PROGRAMS

AS ALTERNATIVES TO INCARCERATION

EXECUTIVE SUMMARY

The Smart on Crime initiative, announced by the Department of Justice
(Department) in August 2013, highlighted five principles to reform the federal
criminal justice system by, among other things, ensuring just punishments for lowlevel, non-violent offenders. Smart on Crime encouraged federal prosecutors in
appropriate cases involving non-violent offenders to consider alternatives to
incarceration such as pretrial diversion and diversion-based court programs where
appropriate. Pretrial diversion and diversion-based court programs are alternatives
to prosecution or incarceration that enable certain low-level and non-violent
offenders to be diverted from traditional criminal justice proceedings, with the
result being that the offender may receive no conviction or be sentenced to a lesser
or no term of incarceration. Officials of the Executive Office for U.S. Attorneys
(EOUSA) told us that, while the Smart on Crime initiative contemplates greater use
of diversion programs nationally, it does not mandate that each U.S. Attorney’s
Office (USAO) increase the use of diversion regardless of other priorities or local
circumstances.
Additionally, the Department’s FY 2014-2018 Strategic Plan calls for the
expansion of diversion programs as a way to reform and strengthen the federal
criminal justice system and address prison overcrowding. The leadership of the
Department has acknowledged that the level of federal prison spending is
unsustainable. For fiscal year (FY) 2016, the Federal Bureau of Prisons (BOP)
budget was $7.5 billion and accounted for 26 percent of the Department’s
discretionary budget, figures that have risen markedly in the past 15 years. As of
September 2015, the BOP operated at 26 percent over capacity and is projected to
remain overcrowded through FY 2016 and beyond.
Traditional pretrial diversion is initiated at the discretion of the USAOs. It
generally involves a decision to defer prosecution in order to allow an offender the
opportunity to successfully complete a period of supervision by the Probation or
Pretrial Services offices of the U.S. Courts with the agreement that, if successful,
the USAO will not prosecute the offender and any pending criminal charges will be
dismissed.1 Subject to the criteria in the U.S. Attorney’s Manual, each USAO
determines for itself which offenders are eligible for diversion.
Diversion-based court programs, by contrast, are generally run by the U.S.
Courts in partnership with the USAOs and Probation and Pretrial Services. These
1

We use the term “offender” because the U.S. Attorneys’ Manual uses that term when
referring to pretrial diversion eligibility even though such individuals have not been adjudged guilty.

i

programs typically address criminal charges filed against low-level, non-violent
offenders through supervision, drug testing, and treatment services. Diversionbased court programs can target a range of offenses, though they often focus on
specific offenses such as drug crimes or particular categories of offenders. While
some diversion-based court programs result in a full dismissal of charges, others
may result in a conviction with a sentence of probation or little incarceration.
The Office of the Inspector General (OIG) initiated this audit to evaluate the
(1) design and implementation of federal pretrial diversion and diversion-based
court programs, (2) variances in the usage of the programs among the USAOs, and
(3) cost savings associated with successful program participants.
We found that, since the announcement of the Smart on Crime initiative, the
Department has taken some steps to address its historically limited use of pretrial
diversion and diversion-based court programs. Between August 2013 and March
2014, EOUSA distributed informational materials designed to inform the USAOs
about diversionary court programs and provided training and workshops on
alternatives to incarceration. EOUSA also conducts an annual survey of the USAOs’
diversion programs.
We attempted to obtain from EOUSA the total number of offenders who were
placed into a pretrial diversion program as well as the number of unsuccessful
participants, which we believe are crucial metrics needed to evaluate the program’s
effectiveness. However, we were told that neither EOUSA nor the USAOs track this
information. As a result, the Department cannot fully measure the success of its
pretrial diversion program. We were able to obtain from EOUSA the number of
offenders who successfully completed a pretrial diversion program from FY 2012
through FY 2014 for all 94 USAOs, which was 1,520 offenders.2
In order to assess whether additional offenders were potentially suitable for
pretrial diversion, we determined the number of federal defendants convicted of
low-level, non-violent offenses based on U.S. Sentencing Commission statistics. In
undertaking this analysis, we applied the same criteria used by the Department’s
National Institute of Justice (NIJ) in its 1994 report identifying the universe of
federal low-level, non-violent drug offenders, namely: (1) a category I criminal
history, (2) zero criminal history points, (3) no weapons offense conviction, (4) no
aggravated role adjustment, and (5) no prior arrest for a crime of violence or
controlled substance.3 We further restricted this universe by only including
offenders who fell within Zone A of the U.S. Sentencing Commission sentencing
table and therefore were eligible for a probationary sentence with no conditions of
confinement. We also excluded those offenders sentenced under the guideline for
2

For reasons we describe in the report, we found evidence that this figure likely underreports
the number of offenders who successfully completed a pretrial diversion program.
3
NIJ, An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories (February
1994). The 1994 NIJ report also used one U.S. Sentencing Commission statistic that was no longer
available in the 2012 through 2014 data: offenders with “no prior arrest of any kind.”

ii

unlawfully entering or remaining in the United States because, as a practical
matter, offenders illegally in this country are rarely considered for alternative
dispositions. Applying all of these criteria, we identified 7,106 offenders during the
3-year period of our review as potentially suitable for pretrial diversion. Of this
total, 1,520 offenders successfully completed a pretrial diversion program. We
were unable to assess whether the remaining 5,586 potentially suitable offenders
would have met the particular USAO’s eligibility requirements for its pretrial
diversion program or would have been deemed suitable candidates for supervision
by Probation and Pretrial Services.
We also found, based on the data available to us, that the use of pretrial
diversion appeared to be substantially less in some USAOs than in others.
Forty-four USAOs (just under one-half of all USAOs), had between zero and five
successful pretrial diversion participants.
With regard to diversion-based court programs, the vast majority of federal
judicial districts (78 out of 94) had no program as of August 2015. Unlike for
pretrial diversion, the Department had not established criteria that the USAOs must
consider for determining admission into a diversion-based court program. We
attempted to obtain from EOUSA the number of offenders who participated in a
federal diversion-based court program in past years, but were told the information
was not available.4 As with our analysis of potentially suitable pretrial diversion
offenders, we identified those offenders potentially suitable for a diversion-based
court program from an analysis of U.S. Sentencing Commission statistics using the
criteria from the 1994 NIJ report, but included offenders who fell within either Zone
A or Zone B of the U.S. Sentencing Commission sentencing table.5 Again excluding
offenders sentenced for unlawfully entering or remaining in the United States, we
determined that 12,468 offenders sentenced from FY 2012 through FY 2014 were
potentially suitable for diversion-based court programs. However, as with
traditional pretrial diversion, we were unable to assess whether these potentially
suitable offenders would have met the entrance and eligibility requirements of
diversion-based court programs in their individual sentencing jurisdictions.
We found the Department had not evaluated the effectiveness of the USAOs’
pretrial diversion programs or its efforts to pursue their use. An evaluation would
assess the Department’s progress toward accomplishing the goals established in the
Department’s Strategic Plan and its Smart on Crime initiative.
The Department also has not evaluated the potential for pretrial diversion
programs to reduce prosecution or incarceration costs, and we were unable to
4

EOUSA officials told us that, in December 2015, it collected data on offenders who had
participated in federal diversion-based court programs. However, because that data was not available
until after we prepared our draft report, we were unable to analyze it as part of this review.
5
We included Zone B offenders, who are eligible for probationary sentences but only with
additional conditions of confinement, in addition to Zone A offenders in light of the greater range of
sentences available through diversion-based court programs.

iii

obtain data that would have allowed us to do so. Given this absence of data, we
instead estimated the incarceration costs that the Department spent on offenders
we identified as potentially suitable for pretrial diversion. We determined that of
the 7,106 offenders who completed or who were potentially suitable to complete a
pretrial diversion program, 4,530 received no prison sentence while 2,576 received
some sentence of incarceration. Based on the amount of prison time these 2,576
offenders received, we estimated that from FY 2012 through FY 2014 the
Department expended $26,313,168, or $10,215 per offender. These estimates do
not take into account the additional costs to the Department to prosecute these
cases or to the U.S. Courts to handle them. Nor does this amount include the costs
of the pretrial diversion program itself. We believe the Department should consider
how it can assess going forward whether prosecuting offenders meeting these
criteria are consistent with two of the Smart on Crime initiative principles, namely
that prosecutors should pursue the most serious cases that implicate clear,
substantial federal interests, and that prosecutors should pursue alternatives to
incarceration for low-level, non-violent crimes.
For diversion-based court programs, we were able to estimate incarceration
costs avoided by a sample of successful participants in three judicial districts.
Based on these estimates, we found that the potential for cost savings may be
substantial. In the example with the largest sample size, our analysis of court
records from the Central District of Illinois identified an estimated potential cost
savings from $7,721,258 to $9,665,811 for 49 judgmentally selected successful
program participants, or an average of $157,577 to $197,261 per offender.
We also found that the Department has not studied the effect pretrial
diversion and diversion-based court programs may have on recidivism. We
reviewed the Federal Bureau of Investigation’s National Crime Information Center
(NCIC) records for the 39 participants who had completed the Central District of
Illinois diversion-based court program between November 2002 and February 2011
and found that 9 of these individuals (23 percent) were convicted for a new offense,
re-arrested, or had their supervision revoked within 2 years of their diversion-based
court program graduation date.6 By comparison, the general recidivism rate for
federal inmates has been estimated as high as 41 percent. We recognize that our
sample size was small, and believe that a broader study by the Department of the
effect of diversion-based court programs on recidivism is warranted to determine if
these results are borne out on a more widespread and systemic basis.
We make 3 recommendations to the Office of the Deputy Attorney General
and 2 recommendations to EOUSA to strengthen the use of pretrial diversion and
diversion-based court programs in order to meet the Department’s goals and
ensure that alternatives to prosecution are available and utilized where appropriate.
6

Seven of the 9 individuals’ charges involved: (1) possession of a controlled substance,
(2) supervision revocation, (3) probation violation, (4) theft, (5) possession of drug paraphernalia,
(6) resisting a peace officer, and (7) negligent failure to perform. Two individuals’ charges were
unknown.

iv

AUDIT OF THE DEPARTMENT’S USE OF PRETRIAL DIVERSION

AND DIVERSION-BASED COURT PROGRAMS

AS ALTERNATIVES TO INCARCERATION

TABLE OF CONTENTS

INTRODUCTION ............................................................................................. 1

Background ................................................................................................... 3

U.S. Courts Agencies Involved in Providing Pretrial Diversion and

Diversion-Based Court Programs............................................................. 3

District Courts ............................................................................. 3

Probation and Pretrial Services ...................................................... 3

Traditional Pretrial Diversion .................................................................. 4

Diversion-Based Court Programs............................................................. 4

Recent Department Efforts that Address the Use of Alternatives to Incarceration 

Programs ...................................................................................................... 5

Drug Court Feasibility Report to Congress, 2006 ....................................... 5

Alternatives to Prosecution and Incarceration Options Report, 2009 ............ 5

Pretrial Diversion Policy Revision, 2011.................................................... 6

Smart on Crime Initiative, 2013.............................................................. 6

Creation of an Alternative to Federal Prosecution Case Management

Category, 2014..................................................................................... 7

Office of the Inspector General Audit Approach .................................................. 8

FINDINGS AND RECOMMENDATIONS................................................................ 9

The USAO Pretrial Diversion Program ............................................................... 9

Diversion-Based Court Programs.................................................................... 12

Existing Federal Diversion-Based Court Programs ................................... 14

Evaluating the Effectiveness of Diversion Programs .......................................... 15

Use of Pretrial Diversion and Diversion-Based Court Programs Among the USAOs 17

Policies Discouraging Use of and Participation in Diversion Programs ......... 17

Prosecutorial Reluctance to Support Diversion ........................................ 19

EOUSA Case Management System ................................................................. 20

Potential for Cost Savings ............................................................................. 21

Pretrial Diversion ................................................................................ 21

Diversion-Based Court Programs........................................................... 23

Central District of Illinois ............................................................ 25


Central District of California ........................................................ 26

Eastern District of New York ........................................................ 28

Recidivism .................................................................................................. 30

Conclusion .................................................................................................. 30

Recommendations........................................................................................ 31

STATEMENT ON INTERNAL CONTROLS............................................................ 33

STATEMENT ON COMPLIANCE WITH LAWS AND REGULATIONS.......................... 34

APPENDIX 1: AUDIT OBJECTIVES, SCOPE, AND METHODOLOGY ....................... 35

APPENDIX 2: COMPARISON OF PRETRIAL DIVERSION OFFENDERS TO OFFENDERS 

POTENTIALLY SUITABLE FOR PRETRIAL DIVERSION ACCORDING TO U.S.

SENTENCING COMMISSION GUIDELINES FROM FY 2012 THROUGH FY 2014 ....... 37

APPENDIX 3: 2015 U.S. SENTENCING TABLE.................................................. 40

APPENDIX 4: FEDERAL ALTERNATIVE TO INCARCERATION PROGRAMS,

INCLUDING DIVERSION-BASED COURT PROGRAMS AS OF AUGUST 2015 ........... 42

APPENDIX 5: U.S. SENTENCING GUIDELINES CRITERIA USED IN OUR TESTING

TO IDENTIFY THOSE OFFENDERS POTENTIALLY SUITABLE FOR PRETRIAL 

DIVERSION AND DIVERSION-BASED COURT PROGRAMS .................................. 43

APPENDIX 6: OFFICE OF THE DEPUTY ATTORNEY GENERAL AND EXECUTIVE 

OFFICE FOR U.S. ATTORNEYS RESPONSE TO THE DRAFT REPORT...................... 44

APPENDIX 7: OFFICE OF THE INSPECTOR GENERAL ANALYSIS AND SUMMARY OF 

ACTIONS NECESSARY TO ClOSE THE REPORT.................................................. 48


AUDIT OF THE DEPARTMENT’S USE OF PRETRIAL DIVERSION

AND DIVERSION-BASED COURT PROGRAMS

AS ALTERNATIVES TO INCARCERATION

INTRODUCTION

The President and the Department have made criminal justice reform a
priority. In July 2015, the President visited a federal prison in Oklahoma where he
highlighted the challenges and opportunities of criminal justice reform. In
recognition of what it described as a “vicious cycle of poverty, criminality, and
incarceration that traps too many Americans and weakens communities,” the
Department, in August 2013, announced reforms to the federal criminal justice
system through an initiative called Smart on Crime.7 These reforms were intended
to among other things, ensure just punishments for low-level, non-violent
offenders. Smart on Crime encouraged federal prosecutors in appropriate cases
involving non-violent offenders to consider alternatives to incarceration such as
pretrial diversion and diversion-based court programs where appropriate.
The leadership of the Department of Justice (Department) has acknowledged
that federal detention and prison spending is at an unsustainable level.8 From fiscal
year (FY) 2001 to FY 2014, the Federal Bureau of Prisons’ (BOP) population grew
from 157,000 inmates to 214,000 inmates. As of September 2015, BOP operated
at 26 percent over capacity. While the inmate population declined slightly in FY
2014 and FY 2015, the Department projects that BOP facilities will remain
overcrowded through FY 2016 and beyond.
As a result of this growth, the federal prison system represents an increasing
portion of the Department’s budget. In FY 2000, the budget for BOP totaled $3.8
billion and accounted for about 18 percent of the Department’s discretionary
budget. In comparison, the BOP’s enacted budget for FY 2016 totaled $7.5 billion
and accounted for about 26 percent of the Department’s discretionary budget.
During the same time period, the rate of growth in BOP’s budget was almost twice
the rate of growth of the rest of the Department. In 2013, we found that BOP did
not effectively manage its Compassionate Release Program, thereby reducing the
potential to assist with prison capacity issues and lead to incarceration costs
savings.9 In 2011, we reviewed the Department’s International Prisoner Transfer
Program, which permits certain foreign national inmates from treaty nations to

7

U.S. Department of Justice, Smart on Crime: Reforming the Criminal Justice System for the
21 Century (August 2013).
st

8

U.S. Department of Justice Office of the Attorney General, Fiscal Years 2014-2018 Strategic

Plan.

9
U.S. Department of Justice Office of the Inspector General, The Federal Bureau of Prisons’
Compassionate Release Program, Evaluations and Inspections Report I-2013-006 (April 2013).

1


serve the remainder of their prison sentences in their home countries.10 Overall,
we found that the program was underutilized, resulting in another missed
opportunity by the Department to potentially reduce its prison population. We
recently completed a follow-up on the status of this program, which found that,
while some progress has been made, more needs to be done by the Department
and its leadership in order to ensure that the program is utilized as fully as
possible.11
Prison overcrowding adversely affects the safety and security of correctional
officers, staff, and inmates. A 2012 Government Accountability Office report on
BOP overcrowding found that the elimination of common space and the sharing of
cells to accommodate more inmates led to more prison violence because inmates
with high risks of violence were brought together for longer periods of time.12 In
2009, the National Prison Rape Elimination Commission found that operating
correctional facilities beyond capacity placed vulnerable inmates at greater risk of
sexual assault.13
Traditional pretrial diversion and diversion-based court programs (sometimes
collectively referred to herein as “diversion programs”) are alternatives to
prosecution or incarceration that enable certain low-level and non-violent offenders
to be diverted from traditional criminal justice proceedings, with the result being
that the offender may be sentenced to a lesser or no term of incarceration, or even
no conviction at all.14 Like other alternatives to incarceration, these programs are
intended to provide prosecutors and the courts with more options for determining a
sentence or penalty that is appropriate for the crime, cost effective, and
rehabilitative to the offender. Neither prosecutors nor the courts are required to
offer these programs and, because the programs are voluntary, offenders may also
decline to enter the programs and instead exercise their rights to trial through
traditional charging and court proceedings.

10

U.S. Department of Justice Office of the Inspector General, The Department of Justice’s
International Prisoner Transfer Program, Evaluations and Inspections Report I-2012-002 (December
2011).
11

U.S. Department of Justice Office of the Inspector General, Status Review on the
Department’s International Prisoner Transfer Program, Evaluations and Inspections Report 15-07
(August 2015).
12
U.S. Government Accountability Office, Bureau of Prisons: Growing Inmate Crowding
Negatively Affects Inmates, Staff, and Infrastructure, GAO-12-743 (September 2012).
13

National Prison Rape Elimination Commission Report, 96 (June 2009).

14

The term “low-level” appears often in the Department’s Smart on Crime initiative as a
description of the types of offenders suitable for diversion programs. EOUSA issued information to the
USAOs about diversion-based court programs that stated diversion programs provide an alternative to
offenders with low culpability (blameworthiness).
Although EOUSA’s pretrial diversion policy did not expressly limit the application of pretrial
diversion to offenders who were either low-level or non-violent, we found that the practice of some
USAOs was to limit the program in that way, as we discuss later in the report.

2


Background
The Executive Office for U.S. Attorneys (EOUSA) provides administrative
support for U.S. Attorney’s Offices (USAO) that includes legal education,
administrative oversight, technical support, and policies. As part of this support
function, EOUSA issues to the USAOs informational memoranda related to pretrial
diversion and diversion-based court programs.
U.S. Attorneys serve as the chief federal law enforcement officers within their
respective districts and are responsible for most of the federal criminal prosecutions
conducted each year. There are 93 U.S. Attorneys located throughout the United
States.15 U.S. Attorneys determine which cases will be prosecuted and establish
policies and priorities within their federal judicial districts. U.S. Attorneys also
decide which criminal offenders will be offered pretrial diversion and their offices
are involved in the placement of offenders in diversion-based court programs.
U.S. Courts Agencies Involved in Providing Pretrial Diversion and Diversion-Based
Court Programs
The federal judiciary is an independent branch of government, separate from
the executive branch, and includes the District Courts and the Probation and Pretrial
Services offices that support them. Both entities have critical roles in the provision
of diversion programs and work closely with the USAOs for this purpose.
District Courts
District Courts are the principal trial courts in the federal court system and
have general jurisdiction to hear federal criminal cases. There are 94 federal
judicial districts, including one or more in each state, the District of Columbia, and
the overseas territories. In districts where a diversion-based court program exists,
a federal judicial officer provides leadership for the program. The U.S. Attorney,
Probation and Pretrial Services officials, defense attorneys, and sometimes
treatment providers also participate in the program.
Probation and Pretrial Services
U.S. Probation and Pretrial Services carries out probation and pretrial
services functions for and under the direction of the District Courts. Probation and
Pretrial Services officers investigate an offender’s personal history and criminal
record and make recommendations regarding eligibility for diversion programs. If
the offender is accepted into the program, he or she is then supervised by a
Probation and Pretrial Services official for a specified period of time.

15
One U.S. Attorney is assigned to each of the judicial districts, with the exception of Guam
and the Northern Mariana Islands where a single U.S. Attorney serves both districts.

3


Traditional Pretrial Diversion
Pretrial diversion is a program operated under the authority of the USAOs
and moves certain offenders from traditional criminal justice processing into a
program of supervision by U.S. Probation and Pretrial Services. Based on criteria in
the U.S. Attorney’s Manual and such additional requirements as the USAO may
establish, each USAO determines which offenders are eligible for admission into the
program.16 The USAOs have discretion to determine whether they believe an
offender meets the criteria for pretrial diversion. Once Probation and Pretrial
Services concurs that an offender is suitable for the program, the offender enters
into an agreement with the USAO pledging to meet certain conditions, including
refraining from criminal activity. Probation and Pretrial Services also monitor
offenders through their duration in the program.17 Participants who successfully
complete the program are either not charged with a criminal offense or, if they
have been charged previously, will have the charges against them dismissed.
Unsuccessful participants are considered for prosecution.
Diversion-Based Court Programs
EOUSA uses the term “diversion-based court programs” to refer to programs
where the USAO partners with the U.S. Courts to handle cases involving low-level,
non-violent offenders through supervision, drug testing, treatment services, and
immediate sanctions and incentives. Diversion-based court programs can target a
range of offenses or specific offenses such as drug offenses. When drug offenses
are the primary target, these programs are sometimes referred to as “drug courts.”
Diversion-based court programs have also been created for particular types of
offenders, such as veterans or juveniles. After successful participation in such a
program, offenders receive a reduced period of incarceration, no prison time, or
even dismissal of charges. Failure to successfully complete the program may result
in an offender being sent to prison.
Unlike traditional pretrial diversion, a federal conviction is not always avoided
under a diversion-based court program. While some diversion programs result in a
full dismissal of charges, others may result in a sentence of probation or little to no
incarceration. Also, a participant’s entry into the program is not under the sole
discretion of the USAO. Federal diversion-based court programs are generally run
by the District Court. However, the USAO is an important participant in these

16

While individuals recommended for pretrial diversion have not been adjudged guilty of an
offense, the U.S. Attorneys’ Manual refers to pretrial diversion eligibility of offenders; therefore, we
use the term “offenders” in our report when referring to pretrial diversion.
U.S. Attorney’s Manual § 9-22.100
17
Our audit did not examine the use of informal diversion, which is when a USAO uses its
prosecutorial discretion to decide a case is better kept out of the criminal justice system and not to
pursue criminal charges if the offender does not comply with the conditions of the diversion
agreement.

4


programs along with Probation and Pretrial Services, treatment and mental health
professions, and the defense bar.
Recent Department Efforts that Address the Use of Alternatives to
Incarceration Programs
Drug Court Feasibility Report to Congress, 2006
In June 2006, the Department submitted a report to Congress that discussed
the use of drug courts on the federal level. The report examined the purpose of
drug courts, reviewed operational drug treatment programs available on the federal
level at that time, and assessed whether the types of cases prosecuted in federal
court created a demand for drug courts.18
The report concluded that federal drug courts were inappropriate and
unnecessary. Specifically, the report found that: (1) drug courts were not
designed for offenders who committed serious offenses and had significant criminal
histories typically prosecuted by the USAOs, (2) a diversion of resources would
occur within the USAOs that would shift prosecutors away from prosecuting drug
trafficking crimes and other serious offenses so that they may participate in a
federal drug court program, and (3) a federal drug court program would be
duplicative of existing state court programs. This report represented the
Department’s policy on the use of diversion-based court programs until it was
reversed in 2011.
Alternatives to Prosecution and Incarceration Options Report, 2009
In April 2009, the Attorney General formed a Sentencing and Corrections
Working Group comprised of the Department’s legal and policy components and the
Federal Bureau of Prisons. The purpose of the working group was to conduct a
comprehensive review of federal sentencing and corrections policy and prepare
possible sentencing legislation recommendations for submission to the President
and Congress. As part of this working group, an Alternatives to Prosecution and
Incarceration Subcommittee was created to focus on drug court programs. In
November 2009, the Alternatives Subcommittee submitted a report to the Deputy
Attorney General that examined the alternatives to incarceration available to
federal prosecutors and judges (the Alternative Options Report).19 The Alternative
Options Report suggested nine options for reform intended to increase the use of
alternatives to incarceration in the federal system that included:


supporting diversion and drug treatment;

18
U.S. Department of Justice, Report to Congress on the Feasibility of Federal Drug Courts
(June 2006).
19

U.S. Department of Justice, Alternatives to Prosecution and Incarceration: Options in the
Federal System (November 2009).

5




promoting gang, gun crime, and drug market intervention;




developing better evaluations of alternatives to incarceration;




expanding opportunities for the use of alternatives to incarceration in the 

federal system;



studying evidence-based risked assessments to determine which
offenders are suitable for alternative sentencing;



articulating prosecution policies and guidance on pre-judgment probation
for minor drug offenders and study outcomes;



expanding the use of electronic monitoring;



expanding program capacity to accommodate sentencing reforms; and



enlisting the assistance of the Pew Center to evaluate alternatives to
incarceration in the federal system.

Pretrial Diversion Policy Revision, 2011
In April 2011, as a result of the aforementioned Alternatives Options Report,
the Deputy Attorney General approved the removal of U.S. Attorney’s Manual
language that disqualified offenders with substance abuse addictions from the
pretrial diversion program. An EOUSA official told us that this policy change had
the effect of increasing the pool of offenders eligible for pretrial diversion.
Smart on Crime Initiative, 2013
In January 2013, the Department began a review of the federal criminal
justice system to identify reforms in an effort to ensure federal laws were enforced
more fairly and efficiently. The goals of the review were to:
	 ensure finite resources are devoted to the most important law
enforcement priorities;
	 promote fairer enforcement of the laws and alleviate disparate impacts of
the criminal justice system;
	 ensure just punishments for low-level, non-violent convictions;
	 bolster prevention and reentry efforts to deter crime and reduce
recidivism; and
	 strengthen protections for vulnerable populations.

6


As a result of this review, the Department released the Smart on Crime
initiative in August 2013. The initiative proposed five principles intended to
modernize the federal criminal justice system by:
	 prioritizing prosecutions to focus on the most serious cases;
	 reforming sentencing to eliminate unfair disparities and reduce
overburdened prisons;
	 pursuing alternatives to incarceration for low-level, non-violent crimes;
	 improving reentry to curb repeat offenses and re-victimization; and
	 focusing resources on violence prevention and protecting the most
vulnerable populations.
In launching the initiative, the Department stated that incarceration was not
the answer in every criminal case and called for prosecutors to consider the use of
drug courts and other diversion programs for non-violent offenses when
appropriate. Additionally, the initiative called for the issuance of a best practice
memorandum to U.S. Attorneys encouraging more widespread adoption of diversion
polices. Subsequently, EOUSA distributed additional written policy guidance on
diversion-based court programs and provided training and workshops on
alternatives to incarceration. These materials discussed the value of drug and
diversion-based courts within the criminal justice system and provided a list and
description of diversion-based court programs in operation. EOUSA also conducts
an annual survey of the USAOs’ use of diversion programs and other programs
designed to assist persons recently released from incarceration.
Creation of an Alternative to Federal Prosecution Case Management Category, 2014
In March 2014, EOUSA changed the way it recorded and tracked pretrial
diversion case activity within its Legal Information Office Network System (LIONS).
Prior to March 2014, EOUSA used a separate code to record offenders who had
successfully completed pretrial diversion. In March 2014, it directed the USAOs to
begin using a new code for alternatives to federal prosecution. This new code was
intended to record cases where the defendant could have been federally prosecuted
but an alternative to prosecution was pursued. EOUSA stated that pretrial diversion
and diversion-based court programs are types of alternative dispositions that are
captured by the new code, which indicates use of the diversion program.20

20
In addition to pretrial diversion cases, the new code is intended to record civil,
administrative, or other disciplinary alternatives; restitution or arrearage payments; and suspect
cooperation. Deferral to a state or local prosecution is captured by LIONS as a separate code.

7


Office of the Inspector General Audit Approach
Our audit objectives were to evaluate the: (1) design and implementation of
federal pretrial diversion and diversion-based court programs, (2) variances in the
usage of the programs among the USAOs, and (3) costs savings associated with
successful program participants.
We interviewed officials from the Deputy Attorney General’s Office, EOUSA,
the USAOs, U.S. Probation and Pretrial Services, the District Courts, and the
Federal Public Defender, and private defense attorneys. We visited the Northern
District of Georgia, District of South Carolina, Eastern District of New York, Central
District of California, Central District of Illinois, Middle District of North Carolina,
and the District of Columbia.21 We observed diversion-based court planning
sessions and proceedings in the District of South Carolina, Central District of
California, and the Central District of Illinois. Additionally, we reviewed the
Department’s and judicial districts’ records and documentation pertaining to
diversion-based court programs.
Our objectives, scope, and methodology are discussed in more detail in
Appendix 1.

21

We judgmentally selected districts to visit to obtain a sample of districts with both high and
low levels of pretrial diversion activity.

8


FINDINGS AND RECOMMENDATIONS
The Department has not evaluated the effectiveness of the USAO’s
pretrial diversion program or its efforts to pursue the use of diversionbased court programs, and the absence of sufficient reliable data
maintained by the USAOs makes it impossible for us to do so
comprehensively. We found that the pretrial diversion information
that EOUSA captured may have been underreported, as it did not
always require the USAOs to record pretrial diversion participation
and, when such information was recorded, it was done inconsistently.
However, we were able to determine that the number of successful
pretrial diversion program participants varied greatly among the
USAOs, suggesting that the use of pretrial diversion likewise varied
significantly among the different districts. The USAOs’ participation in
diversion-based court programs was also limited, with 16 out of the 94
judicial districts having operational programs. Finally, we found that
the Department has not evaluated, but should evaluate the USAOs’
progress in this area, and that there is substantial potential for pretrial
diversion and diversion-based court programs to reduce both
prosecution and incarceration costs. The potential for pretrial
diversion and diversion-based court programs to reduce recidivism
should also be evaluated, and we found that the Department had not
assessed the potential of diversion programs to reduce recidivism.
The USAO Pretrial Diversion Program
The Department’s pretrial diversion policy, revised in April 2011, states that
a U.S. Attorney may place a person faced with federal prosecution into a pretrial
diversion program if the person is not:
	 accused of an offense which under Department guidelines should be
diverted to the state for prosecution;
	 convicted of two or more felonies;
	 a current or former public official accused of an offense arising out of an
alleged violation of a public trust; or
	 accused of an offense related to national security or foreign affairs.22
We obtained from EOUSA the number of offenders who successfully
completed pretrial diversion from FY 2012 through FY 2014 for all 94 USAOs.
To achieve our audit objectives, we relied on computer-processed data
contained within EOUSA’s Legal Information Office Network System. As we
will discuss later in this report, our review of system controls and interviews
22

U.S. Attorney’s Manual § 9-22.100

9


with EOUSA and USAO staff caused us to doubt the data’s accuracy.
However, when the data is viewed in context with other available evidence,
we believe the opinions, conclusions, and recommendations in this report are
valid.
We compared the data on these participants to the number of federal
offenders sentenced from FY 2012 through FY 2014 who had low-level and
non-violent characteristics. We identified these offenders from our analysis
of U.S. Sentencing Commission statistics for persons who could potentially be
suitable for alternative to incarceration programs encouraged by the Smart
on Crime initiative.23 To accomplish our analysis, we used the methodology
from a 1994 report from the Department’s National Institute of Justice (NIJ)
that found a substantial number of drug law violators sentenced to
incarceration in federal prison facilities in FY 1992 were low-level, non-violent
offenders.24 The report found these low-level offenders had common
characteristics captured by U.S. Sentencing Commission statistics that
included: (1) a category I criminal history, (2) zero criminal history points,
(3) no weapons offense conviction, (4) no aggravated role adjustment, and
(5) no prior arrest for a crime of violence or controlled substance offense.25
These criteria are defined in Appendix 5.
The NIJ study considered these criteria important because offenders
meeting the criteria were considered to be less likely to be violent or to
reoffend following release from prison. While the NIJ report is now more
than two decades old, we believe that its rationale remains valid and that the
factors it considered are generally appropriate for assessing the extent to
which the federal prison population contains offenders who possess the lowlevel and non-violent characteristics that might make them suitable for
diversionary dispositions. Although the NIJ report focused solely on
offenders sentenced for drug offenses, we included all offenders sentenced
from FY 2012 through FY 2014 who met these criteria as reported by the
U.S. Sentencing Commission. Next, we further refined our population by
23

We limited our analysis of U.S. Sentencing Commission data to cases that had complete
guideline information, which were 74,495 out of 84,173 cases for FY 2012, 71,004 out of 80,035 cases
for FY 2013, and 67,672 out of 75,836 cases for FY 2014. The U.S. Sentencing Commission defines a
case as one sentencing event for an individual defendant.
24

U.S. Department of Justice National Institute of Justice, An Analysis of Non-Violent Drug
Offenders with Minimal Criminal Histories (February 1994).
25

For the “no prior arrest for a crime of violence or controlled substance” criterion, we used
the U.S. Sentencing Commission’s career offender adjustment statistic, which is defined as the
defendant’s commission of a felony that was a crime of violence or controlled substance offense with
two priors of either type.
The 1994 NIJ report also used one U.S. Sentencing Commission statistic that was no longer
available in the FY 2012 through FY 2014 data: offenders with “no prior arrest of any kind.”

10


selecting only those offenders who were also within Zone A of the U.S.
Sentencing Commission sentencing table shown in Appendix 3, reflecting
those offenders who were eligible for non-incarceration sentences with no
conditions of confinement.26 Lastly, we excluded those offenders sentenced
under the federal sentencing guideline for unlawfully entering or remaining in
the United States, U.S.S.G. § 2L1.2, because, as a matter of federal
immigration policy, such offenders are rarely considered for alternative
dispositions.
As shown in Figure 1, using these criteria, we identified 7,106
offenders as potentially suitable for pretrial diversion. Of this total, 5,586
offenders did not complete a pretrial diversion program, while 1,520
offenders successfully completed a pretrial diversion program over the 3-year
period of our review. This EOUSA figure of 1,520 does not reflect the
offenders who were placed into but did not complete a pretrial diversion
program or the offenders initially considered for placement but determined to
be unsuitable for supervision. However, our analysis suggests that the
USAO’s pretrial diversion program could be made available to more low-level,
non-violent offenders consistent with the principle in the Department’s Smart
on Crime initiative that prosecutors should pursue alternatives to
incarceration for low-level, non-violent crimes.
Based on the available information, we cannot be certain whether the
offenders eligible for non-incarceration sentences if convicted who satisfy these
criteria would have met the eligibility requirements for pretrial diversion or would
have been selected by a federal prosecutor based on the exercise of his or her
discretionary authority. We also cannot be certain that these offenders would have
been determined by Probation and Pretrial Services to be suitable candidates for
supervision. However, Figure 1 compares the USAO’s use of pretrial diversion to
the number of offenders potentially eligible for pretrial diversion, which represented
the closest population of offenders we could obtain to make a reasonable
comparison.27

26

The Sentencing Reform Act of 1984 requires that the federal sentencing guidelines reflect
the general appropriateness of imposing a sentence other than imprisonment in cases where the
defendant is a first offender and has not been convicted of a crime of violence or serious offense.
Defendants are eligible for non-incarceration sentences with no conditions of confinement if their
sentencing range falls within Zone A of the U.S. Sentencing Guidelines sentencing table (shown in
Appendix 3). U.S.S.G. § 5B1.1(a)(1). Though imposition of a probation-only sentence is not required
in Zone A, from FY 2012 to FY 2014, Zone A offenders received probation-only sentences more
frequently than offenders in other zones.
27

We attempted to obtain from EOUSA the number of offenders who would have been eligible
for pretrial diversion but was told the information was not available. We also attempted to obtain the
number of offenders who USAOs attempted to place in pretrial diversion but who were determined not
to be suitable for supervision, as well as the number of offenders who were approved and placed in
pretrial diversion but did not successfully complete the program, but that information was not
available either. Therefore, we use the number of offenders successfully completing the program as
the only available measure of the use of such programs by the USAOs.

11


Figure 1
Comparison of Successful Pretrial Diversion Participants to Offenders

Identified as Potentially Suitable for Pretrial Diversion Who did not 

Complete Pretrial Diversion Based on an OIG Analysis of U.S. Sentencing

Commission Statistics from FY 2012 through FY 2014


1,520

Offenders Who
Successfully Completed
Pretrial Diversion

Offenders Identified as
Potentially Suitable for
Pretrial Diversion Who
Did Not Complete Pretrial
Diversion

5,586
Total: 7,106

Source: OIG Analysis of Executive Office for U.S. Attorneys Records and U.S. Sentencing
Commission statistics, FY 2012-FY 2014

We also determined the number of successful pretrial diversion participants
and offenders potentially suitable for pretrial diversion for each USAO from FY 2012
through FY 2014. We found the number of successful participants among these
districts varied significantly, suggesting that the use of pretrial diversion also varied
significantly. As shown in Appendix 2, the most active district appeared to be the
Southern District of California with 326 successful participants while 12 districts had
no successful participants. Forty-four USAOs, or just under one-half of all USAO
districts, had between 0 and 5 successful pretrial diversion participants. As
previously stated, the use of diversion is an exercise of local prosecutorial
discretion, and prosecutors are not obligated to divert an offender. We also
recognize that USAOs may be declining to accept for federal prosecution as a
matter of policy cases that would otherwise be a candidate for pretrial diversion.
Diversion-Based Court Programs
Unlike for pretrial diversion, the Department had not established criteria that
the USAOs must consider to determine admission into a diversion-based court
program.28 We attempted to obtain from EOUSA any data on offenders who had

28

EOUSA had distributed informational materials to the USAOs that portrayed best practices
of diversion-based court programs and highlighted the programs in operation at the federal level.

12


participated in a federal diversion-based court program in past years, but were told
that EOUSA had no mechanism to track such information.29
Similar to our analysis of federal offenders potentially suitable for a pretrial
diversion program, we sought to determine the population of federal offenders that
had the type of low-level, non-violent characteristics that could potentially make
them suitable for a diversion-based court program. However, because EOUSA
could not provide any numbers of diversion-based court program participants prior
to March 2014, we compared our population of potentially suitable diversion-based
court program offenders to all federal offenders sentenced from FY 2012 through
FY 2014.30
To accomplish our analysis, we used the same population of federal offenders
who met the five U.S. Sentencing Commission criteria we used in our pretrial
diversion analysis. Next, we further refined our population by selecting those
offenders who were also within Zones A or B (defined in Appendix 5) of the U.S.
Sentencing Commission sentencing table (shown in Appendix 3).31 Also, as
previously explained, we excluded those offenders sentenced for unlawfully
entering or remaining in the United States. As shown in Figure 2, we identified
12,468 offenders based on these criteria as potentially suitable for inclusion in a
diversion-based court program over the 3-year period of our review compared to
the total number of offenders during the same period of time.

29

EOUSA officials told us that as a result of two Smart on Crime initiative surveys, it had
collected data on offenders who had participated in federal diversion-based court programs in
December 2015. Because the data was not available until after we prepared our draft report, we were
unable to analyze the data in this review.
30

We removed those cases where offenders were sentenced under U.S.S.G. § 2L1.2, the
guideline provision for unlawfully entering or remaining in the U.S., which were 19,257 cases in
FY 2012; 18,498 cases in FY 2013; and 16,556 cases in FY 2014.
31

In light of the greater range of sentences available through diversion-based court
programs, we included offenders within Zone B in addition to those within Zone A of the U.S.
Sentencing Commission sentencing table because Zone B offenders would also be eligible for
non-incarceration sentences, albeit with conditions requiring intermittent confinement, community
confinement, or home detention, or relatively short incarceration sentences. U.S.S.G. § 5B1.1(a)(2).

13


Figure 2
Comparison of Offenders Identified as Potentially Suitable for Diversion-

Based Court Programs to All Offenders Based on an OIG Analysis of U.S. 

Sentencing Commission Statistics from FY 2012 through FY 2014

180,000

158,860

160,000
140,000
120,000
100,000
80,000
60,000
40,000
20,000

12,468

Offenders Identified as Potentially
Suitable for Diversion-Based Court
Programs

All Offenders

Source: OIG analysis of FY 2012-FY 2014 U.S. Sentencing Commission statistics

We recognize that not all offenders identified from our pretrial diversion and
diversion-based court program analyses would be eligible for pretrial diversion or a
diversion-based court program. For example, as noted previously, diversion-based
court programs have varied entrance and eligibility requirements, and U.S.
Attorneys retain broad discretionary authority in determining which offenders to
divert short of a criminal conviction. However, our results are useful in illustrating
that there remains a population of offenders for whom a diversionary disposition
may be a possibility.
We believe a more in-depth, evidence-based assessment of both pretrial
diversion and diversion-based court program offender populations would allow the
Department to more accurately determine the possibility for increasing its use of
pretrial diversion and of directing additional offenders to diversion-based court
programs. Given issues that we previously found and discuss below with the
USAOs own recordkeeping, such an assessment should use current and reliable
data, including U.S. Sentencing Commission statistics, to determine whether the
use of pretrial diversion and the availability of diversion-based court programs
adequately reflects the population of potentially suitable offenders.
Existing Federal Diversion-Based Court Programs
We visited diversion-based court programs in the District of South Carolina,
the Eastern District of New York, the Central District of California, and the Central
District of Illinois, which are listed in Table 1. Each had similar program
components but varied in design, characteristics shared among participants,
14


eligibility requirements, involvement from the USAO, type and duration of drug
treatment, degree of judicial monitoring and intervention, and the use of sanctions
for non-compliance. As of August 2015, we identified 16 judicial districts with
alternative to incarceration programs, including diversion-based court programs,
which are listed in Appendix 4.
Table 1

Diversion-Based Court Programs Visited by the OIG

District
District of South
Carolina
Central District of
California
Central District of
Illinois
Eastern District of
New York

Name of Court
BRIDGEa
Convictions and Sentence
Alternative
Pretrial Alternatives to
Detention Initiative
Pretrial Opportunity
Program, Special Options
Services

Type of Court
Substance
Abuse
Offenses vary
Substance
Abuse
Substance
Abuse

Successful or
Active
Participants

Unsuccessful
Participants

49b

23

124c

9

104d

10

19e

8

a

The name “BRIDGE” is not an acronym but is the name given to the diversion-based court program
by District of South Carolina officials.
b

The number of program participants reported to us by the District of South Carolina as of August
2015.
c

The number of program participants reported to us by the Central District of California as of July
2015.
d

The number of successful program participants reported to us by Central District of Illinois officials as
of October 2014.

e

Eastern District of New York, Alternatives to Incarceration in the Eastern District of New York: The
Pretrial Opportunity Program and The Special Options Services Program (August 2015).
Source: Central District of California, Central District of Illinois, Eastern District of New York, and the
District of South Carolina. We did not verify the number of successful participants.

Evaluating the Effectiveness of Diversion Programs
The Government Performance and Results Act (GPRA) and the GPRA
Modernization Act of 2010 require government agencies to develop long-term
strategic plans defining general goals and objectives for their programs. One of the
Department’s goals within its FY 2014-2018 Strategic Plan is to ensure the fair,
impartial, efficient, and transparent administration of justice at the federal level.
Within the plan, the Department acknowledges the unsustainable growth of its
inmate population and detention spending and has established performance
measures related to reducing prison overcrowding. The BOP has projected its
inmate population will reach 38 percent overcapacity by FY 2018. Prison
overcrowding remains the Department’s only agency-wide material weakness, and

15


the BOP continues to face dangerous levels of overcrowding at its institutions.32 To
accomplish its strategic goals, the Department plans to expand the use of diversion
programs. The Department’s strategic goals and objectives also underscore the
importance of performance-based management in order to accomplish its goals and
has stated that improved performance is realized through greater focus on its
mission, agreement on goals and objectives, and the timely reporting of results.
The President’s budget for FY 2016 also addressed prison spending and
overcrowding and included funding for research to evaluate the efficacy of Smart on
Crime initiative efforts.
The value of a performance-based evaluation in measuring overall program
effectiveness was cited in the Department’s 2009 Alternatives to Prosecution and
Incarceration Options Report. The report suggested that studies be considered that
would evaluate the outcomes of pretrial diversion programs and other forms of
alternative sentencing.33 In making this suggestion, the report stated that the
Attorney General had adopted a data-driven, non-ideological approach to fighting
crime. Further, the report noted that an evidence-based evaluation of alternative
programs and the selection of participating offenders would identify alternative
programs that promoted public safety and were cost effective.
Pursuant to these requirements and suggestions, we asked an EOUSA official
about any progress by the Department in commissioning an evaluation of pretrial
diversion program outcomes and other program measures as suggested in the 2009
Alternatives Options Report. In a written statement, EOUSA indicated that the
suggestion to the Department to commission an evidence-based evaluation had not
been followed. The statement added that some individual USAOs had engaged
research partners to assess particular programs, and EOUSA is considering funding
options for research and evaluations going forward.34
EOUSA also did not keep sufficient data to permit a comprehensive
evaluation of the effectiveness of the USAOs’ use of pretrial diversion programs and
their participation in diversion-based court programs. We believe that the
Department needs to collect this information and use it, in conjunction with data
from the U.S. Sentencing Commission, to conduct such an evaluation to determine
if the Department has met its strategic goals in this area and assess its progress
toward achieving the reforms outlined in the Smart on Crime initiative. In doing so,
the Department should ensure that its program assessment addresses the factors
identified below that we found attributed to the USAOs’ varying levels of use of
pretrial diversion and participation in diversion-based court programs.

32

See also U.S. Department of Justice Office of the Inspector General, Top Management and
Performance Challenges Facing the Department of Justice (November 2015).
33
U.S. Department of Justice, Alternatives to Prosecution and Incarceration: Options in the
Federal System (November 2009).
34

In the response, EOUSA did not name or provide a description of the programs where some
individual USAOs had engaged research partners to assess, or the results of any such assessments.

16


Use of Pretrial Diversion and Diversion-Based Court Programs Among the
USAOs
To determine the reasons for the varied levels of the USAOs’ use of pretrial
diversion and participation in diversion-based court programs, we reviewed the
Department’s diversion policies, and interviewed officials from the Deputy Attorney
General’s Office, EOUSA, the USAOs, U.S. Probation and Pretrial Services, the
District Courts, the Federal Public Defender, and private defense attorneys. We
discussed the use of and participation in such programs, including any obstacles
that prevented or limited use of the programs within each official’s respective
district or elsewhere.
Policies Discouraging Use of and Participation in Diversion Programs
We found that Department and USAO policies did not consistently support
the use of diversion programs. As discussed above, recent Department policy
initiatives have favored increased consideration of pretrial diversion as an
alternative to traditional prosecution. However, we found that policies in the
districts we visited did not always support the use of pretrial diversion, based on
the available data. For example, as of November 2014, one district we visited that
had used infrequently pretrial diversion had a policy that appeared to limit the
application of pretrial diversion within that district more narrowly than the
Department’s current policy. Specifically, the policy stated, “pretrial diversion is
discouraged, and will be permitted only in exceptional circumstances.” We were
unable to determine based on the limited available data the effect this policy had on
the use of pretrial diversion within that district; however, during the 3-year period
from FY 2012 to FY 2014, the district had less than 6 successful pretrial diversion
participants.35 This level of use could be attributable to the district’s policies, the
exercise of its discretionary authority to decline prosecution outright in lieu of
utilizing diversion, or other factors. We did not find a similar general policy within
the other USAOs we visited, and are unable to assess the extent to which other
districts may have policies and practices that may impact the availability of pretrial
diversion in some circumstances.36 Although we recognize a certain degree of
variation among the USAOs’ approach and use of alternatives to incarceration is
necessary and may be warranted based on varying local conditions and priorities,
EOUSA needs to address those USAO policies that are inconsistent with the
Department’s commitment to pursue the increased use of diversion programs
where appropriate as part of the Smart on Crime initiative.
Similarly, while the Department’s pretrial diversion policy does not specify
which criminal offenses qualify for program admission, we found that some USAOs
restricted the offenses eligible for diversion and had varying standards. We asked
35

In FY 2014, the district recorded 17 cases or matters where alternatives to prosecution
were exercised, though we cannot tell from the available data how many of these were pretrial
diversion as opposed to other forms of alternative dispositions.
36

We visited six other USAOs.

17


EOUSA if the USAOs were allowed to have local pretrial diversion policies and were
told that the USAOs could establish local policies as long as the policies did not
conflict with the Department’s policy. Additionally, EOUSA stated that the USAOs
had discretion to exclude an offender from pretrial diversion for other reasons
beyond the four categories outlined in the Department policy. As discussed above,
one district had a general policy that “discouraged” the use of pretrial diversion,
and only permitted it in “extraordinary circumstances.” An Assistant U.S. Attorney
who was a supervisor in the district told us that they would not consider for pretrial
diversion any case that had victims or in which restitution was outstanding. The
same Assistant U.S. Attorney also said that pretrial diversion cases usually involved
low-level offenders and would not be granted in cases involving violence or drug
distribution. In another district we visited, the policy stated that as a matter of
practice, pretrial diversion may be offered to any first-time offender with certain
restrictions. An Assistant U.S. Attorney who was a supervisor in the district told us
that their office uses pretrial diversion primarily in low-level financial crimes, which
U.S. Probations materials from that district described as fraud, theft, and
embezzlement. Similarly, in another district, which we were told had no written
pretrial diversion policy, a Probation Officer told us most of the cases considered for
pretrial diversion in that district were federal mail or low-level financial crimes.
With regard to diversion-based court programs, as previously noted, the
Department’s policy discouraged the use of drug courts by the USAOs until the
policy was reversed in 2011. Based on the information that we received, we were
not able to assess how the Department’s former view of drug courts affected the
USAOs current participation in diversion-based court programs, and we cannot say
how many such programs would now exist had there been a different policy. The
former policy did not prohibit drug or diversion-based court programs, although it
may well have suppressed the creation of these programs because it would not
have been unreasonable for the USAOs to conclude that participation in such
programs would not have the support of the Department.37
In our judgment, if the Department wishes to achieve its plans for a more
widespread adoption of diversion programs, EOUSA should ensure that the USAOs’
approaches to diversion are consistent with the Department’s commitment to
pursue the increased use of diversion programs where appropriate as part of the
Smart on Crime initiative. To accomplish this, we recommend that the Department
evaluate the effectiveness of diversion programs and work with the USAOs to
ensure that their policies and practices are consistent with the Department’s stated
commitment to increase the use of diversion programs where appropriate as part of
the Smart on Crime initiative. We asked an EOUSA official if alternative to
incarceration programs were included in the Evaluation and Review Staff

37
Although there are a relatively small number of districts that have these programs, we note
that, despite the policy prior to 2011, the Central District of Illinois’ diversion-based court program
was created in 2002 and was operational when the Department issued its report to Congress in 2006.

18


evaluations performed under EOUSA direction in each USAO.38 The official told us
alternative programs were not included. We believe that such periodic office
evaluations would provide a good opportunity for EOUSA to address the USAOs’ use
of diversion programs. Moreover, a comprehensive evaluation of the Department’s
efforts to pursue the use of diversion programs also would allow EOUSA to identify
best practices among the USAOs. A more consistent application of the
Department’s diversion policy informed by such reviews could play an important
role in helping the Department meet its goal of increasing the use of diversion
programs.
Prosecutorial Reluctance to Support Diversion
Federal prosecutors and other officials in five of the seven judicial districts we
visited made comments to us about the general reluctance of some prosecutors to
use diversion programs. While necessarily anecdotal, we believe that these
examples are helpful in reflecting a mindset of at least some prosecutors toward
diversionary dispositions that will have to be addressed for the Department to make
significant progress in increasing the use of such programs. Specifically:
	 An Assistant U.S. Attorney told us that for drug crimes the public
generally prefers to see people incarcerated for a long time.
	 U.S. Probation officials in one district told us that although that district
had increased the use of pretrial diversion in the past 3 years, the USAO
historically neither favored diversion nor had interest in creating a drug
court.
	 An Assistant U.S. Attorney said that some prosecutors see alternative to
incarceration programs as a foreign concept and are unlikely to embrace
them. A Public Defender in the same district said that the USAO had an
institutional resistance to offering pretrial diversion.
	 An Assistant U.S. Attorney told us that some Attorneys were not in favor
of diversion programs and that obtaining a criminal conviction was more
important. A District Judge in that district stated that some prosecutors
are not willing to consider alternative courts such as diversion-based court
programs.
	 A District Judge told us that having a prosecutor who was progressive in
the use of alternative to incarceration programs was necessary to make
such programs effective.
38

Under Title 28 C.F.R. Part 0.22, EOUSA is required to evaluate the performance of the
USAOs, make appropriate reports and inspections, and take corrective action. EOUSA uses the
Evaluation and Review Staff (EARS) program to assess on a cyclical basis how well each USAO is
following Departmental policies and Attorney General priorities by examining strategic planning, senior
management operations, relations with law enforcement and the judiciary, case and personnel
management, and the Department’s priority programs.

19


Each U.S. Attorney has the authority to use their resources to further the
priorities of their local jurisdiction and surrounding community. U.S. Attorneys
retain broad discretion to enforce federal criminal laws and determine which
offenders are eligible for diversionary dispositions. However, the comments
expressed during our interviews suggest that at least some prosecutors continue to
have doubts about the value of diversion programs. In our judgment, these doubts
could hinder the Department’s goal of achieving more widespread adoption of
diversion programs by the USAOs. For the Department to make progress on its
stated goal of increasing use of diversion programs, it must work to address
prosecutors’ concerns. We believe a detailed evaluation by the Department of the
effort to expand the use of diversion programs where appropriate as part of the
Smart on Crime initiative would allow the Department to comprehensively identify
such concerns and develop ways to address them that would lead to an increased
and more consistent use of diversion programs. The evaluation should also assess
the training and outreach that EOUSA provides regarding diversion programs.
EOUSA Case Management System
The Legal Information Office Network System (LIONS) is the primary case
management system used by the USAOs. It is designed to allow users to input
information, execute reports, and run queries. We reviewed the LIONS manual and
obtained from EOUSA the pretrial diversion cases of successful participants reported
within LIONS from FY 2012 through FY 2014 for each USAO (shown in Appendix 2).
Until March 2014, we were unable to find a requirement in the LIONS manual
to record pretrial diversion activity, and EOUSA officials told us that pretrial
diversion was not required to be entered into LIONS to record pretrial diversion
activity. Officials also told us the U.S. Attorney’s Manual had no requirement that
mandated pretrial diversion activity be recorded into LIONS. However, in March
2014, EOUSA began requiring the USAOs to record the use of alternatives to federal
prosecution that would include pretrial diversion or diversion-based court program
activity.
During our district site visits we noted that USAO officials were not consistent
in recording their pretrial diversion cases. In one district, we noted that pretrial
diversion cases were being entered into LIONS, but were sometimes inaccurately
recorded because of human error. In another district, officials told us that, because
of a low volume of such cases, they were not keeping any logs of pretrial diversion
cases and were not sure of how to identify diversion cases in LIONS. In a separate
district, officials told us that pretrial diversion participants probably were recorded
in LIONS during certain program milestones, but that they were not sure this
occurred consistently. An Assistant U.S. Attorney told us that sometimes in cases
with two or more offenders, a defendant who is offered pretrial diversion is
forgotten by the case attorney and, as a result, the case is not recorded in LIONS.
We interviewed EOUSA officials regarding the procedures for recording and
tracking pretrial diversion case activity. One EOUSA official told us that LIONS
pretrial diversion reports were not reliable because district offices were not
20


consistent in entering pretrial diversion data into LIONS. Another EOUSA official
told us that pretrial diversion is not used often and that EOUSA did not require the
USAOs to record pretrial diversion activity.
We asked EOUSA officials about how they could better ensure pretrial
diversion case activity entered in LIONS is complete and accurate. One official
suggested that more clear guidance could come from EOUSA about the importance
of entering accurate pretrial diversion data in LIONS. Another EOUSA official told
us a reminder to the USAOs on the subject may improve the recording of pretrial
diversion cases. We agree that these efforts would likely improve the accuracy of
pretrial diversion data in LIONS and we recommend that EOUSA undertake these
efforts.
Like pretrial diversion, the use of diversion-based court programs was not
always required to be tracked or recorded in LIONS by the USAOs. In our
judgment, it is necessary for all the USAOs to consistently record accurate pretrial
diversion and diversion-based court program case activity for the Department to
measure and evaluate the use of diversion by prosecutors. While EOUSA issued
guidance to the USAOs on recording diversion-based court program activity,
effective March 2014, it still needs to ensure that the USAOs record accurate data
to better evaluate the use of diversionary dispositions and progress with the Smart
on Crime initiative and the Department’s performance-based management goals.
Potential for Cost Savings
The Government Performance and Results Act (GPRA) and the GPRA
Modernization Act of 2010 require government agencies to develop long-term
strategic plans defining general goals and objectives for their programs. The
Department’s Smart on Crime initiative reforms were intended, in part, to reduce
the taxpayer expense of incarceration by increasing the use of diversion programs
and programming meant to address and prevent recidivism.
Pretrial Diversion
We requested any records from EOUSA reflecting the cost savings from the
use of pretrial diversion, but officials told us they did not maintain any such cost
savings records. We also attempted to determine the incarceration costs avoided
for successful completion of pretrial diversion programs in some of the districts we
visited. However, the districts we visited did not have documentation available that
would have allowed us to estimate the amount of incarceration costs avoided for
pretrial diversion.
Since neither EOUSA nor the USAOs we visited had cost savings data
regarding the pretrial diversion program, we used the analysis of offenders
potentially suitable for pretrial diversion discussed earlier in this report to estimate
the amount of money the Department spent incarcerating offenders who potentially
could have participated in pretrial diversion programs. As we reported in Figure 1
above, we identified 7,106 offenders sentenced from FY 2012 through FY 2014 as
21


potentially suitable for a pretrial diversion program. Of those offenders, as shown
in Table 2, 4,530 received no prison time while 2,576 received some prison time.
For those offenders who received prison time, we multiplied the amount of prison
time (in months) by BOP’s average cost of imprisonment during the fiscal year the
offender was sentenced.39
Table 2

Analysis of Estimated Incarceration Costs for Offenders

Potentially Suitable for Pretrial Diversion Based on

U.S. Sentencing Commission Criteria


FY 2012
FY 2013
FY 2014
Total

Cases of
Potentially
Suitable
Pretrial
Diversion
Offenders
That
Received
Prison Time
902
916
758
2,576

Cases That
Did Not
Receive
Prison
Time
1,505
1,584
1,441
4,530

Total

Total Prison
Sentence
(in months)

BOP Monthly
Imprisonment
Cost

3,569
3,821
3,273
10,663

$2,419
$2,441
$2,552

2,407
2,500
2,199
7,106

Total
Incarceration
Costs
Per Offender

$8,633,411
$9,327,061
$8,352,696
$26,313,168

Note: Amounts were rounded
Source: OIG analysis of FY 2012-FY 2014 U.S. Sentencing Commission statistics

As shown in Table 2, we found that the total estimated incarceration cost
over the 3-year period was $26,313,168. This figure very likely overestimates the
amount that the Department could have avoided through expanded use of pretrial
diversion because in all likelihood a number of the offenders within our analysis
would not have met the eligibility requirements for pretrial diversion or would not
have been found by Probation and Pretrial Services and the USAOs to be suitable
candidates for diversion. Our calculation also does not take into account the costs
of a pretrial diversion program. From our calculation, we determined that about 64
percent of these offenders received a probationary sentence. We recognize that the
exact cost savings would depend on the amount of prison time the offender
ultimately serves, which is unknown at the time of sentencing. We are not
extrapolating a total for how much the Department spent to incarcerate all
defendants potentially eligible for pretrial diversion programs because those
programs have specific additional entrance requirements that are beyond the
control of the USAOs and the costs for the defendants potentially eligible would be
included within them. However, our analysis demonstrates that the Department’s
stated interest in pursuing pretrial diversion for low-level, non-violent offenders
would result in reduced incarceration costs, and we believe the Department needs
39
The U.S. Sentencing Commission data from which this statistic was derived adds together
the imprisonment days and months, including the time already served and the months of a concurrent
state sentence. The data does not include any months on probation, including months of alternative
confinement such as time spent in home detention or halfway houses.

22


to further explore this potential. In our judgment, the cost savings potential of
pretrial diversion should be measured, to the extent possible, through the
maintenance and review of data, both collected internally and obtained from the
U.S. Sentencing Commission, necessary to determine progress toward the
Department’s goals outlined in the Smart on Crime initiative. While we understand
that individual districts may not have access to all the necessary data regarding
incarceration costs, we recommend the Department collect sufficient information to
enable it to assess the performance of the USAOs’ use of pretrial diversion in
reducing prosecution and incarceration costs, and that it conduct such a review in a
timely fashion.
Diversion-Based Court Programs
We estimated the cost savings potential for some offenders who successfully
completed diversion-based court programs in three districts we visited: the Central
District of Illinois, the Central District of California, and the Eastern District of New
York. We selected the first two districts for our analysis because district officials
had documentation available that allowed us to determine the offense level and
criminal history category for some of their offenders. Under the federal criminal
justice system, an offender’s offense level and criminal history category is used to
determine the offender’s advisory guideline sentencing range.40 The documents we
used were presentence investigative reports prepared by the U.S. Probation Office
in the Central District of Illinois and plea agreements negotiated between the USAO
and the defendant in the Central District of California. We also reviewed an August
2015 report from the Eastern District of New York that included estimated cost
savings from its two court programs.41 Additionally, we obtained diversion-based

40
A defendant’s advisory sentencing range is determined by the U.S. Sentencing Guidelines,
which take into account both the seriousness of the criminal conduct (offense level) and the
defendant’s criminal record (criminal history). Based on the severity of the offense, the guidelines
assign most federal crimes on a scale from 1 to 43 for the offense level. Each offender is also
assigned on a scale from I to VI for their criminal history based on the extent of past misconduct and
recent past misconduct. The point at which the offense level and criminal history category intersect
on the sentencing table (as shown on Appendix 3) determines a defendant’s advisory sentencing
guideline range. The sentencing judge must consider this range, but retains discretion to sentence a
defendant outside the range. According to U.S. Sentencing Commission statistics, from FY 2009 to
FY 2013, more than half of all cases sentenced in federal court were within the recommended
sentencing range. The availability of alternatives to incarceration under the guidelines is determined
by the Zone in which the sentencing range falls on the sentencing table, as noted above.
41

Each of the four court programs we visited managed their diversion-based court programs
using different records. While the records we used to perform our cost-savings analysis varied, our
use of the court program’s sentencing information to estimate an imprisonment cost savings was
consistent. We could not perform a similar analysis from documents obtained from the fourth court
program we visited, which was in the District of South Carolina.
A presentence investigative report summarizes for the District Court the background
information needed to determine the appropriate sentence that includes an examination of the
circumstances of the offense and the defendant’s criminal background. Presentence reports may not
be required if the sentencing judge determines they are not necessary in a particular case.

23


court program cost-savings records from the District Courts of the districts we
visited. Although we did not independently review these U.S. Courts’ records, we
asked Central District of Illinois and Central District of California officials for any
comments about our calculation and the differences between our cost savings
calculations and theirs. Their responses are noted below.
To assess the potential cost savings, we determined the sentencing range for
each participant.42 Next, we multiplied the defendant’s sentencing range by BOP’s
average cost of imprisonment during the year the offender would have been
sentenced or the date of the presentence report or plea agreement. As of FY 2014,
the cost to incarcerate one person was about $84 daily and $30,620 annually, as
shown in Table 3. This analysis resulted in the costs that would have been incurred
had each participant served their sentence in a BOP facility.43
Table 3

Federal Bureau of Prisons Imprisonment

Costs as of FY 2014

Term
Imprisonment Cost
Daily
$84
Monthly
$2,552
Annual
$30,620
Source: Federal Register, Vol. 80, No. 45

The following is our analysis of incarceration costs potentially avoided from
the diversion-based court programs of the Central District of Illinois and the Central

A plea agreement is a negotiated agreement between a prosecutor and a criminal defendant
to set forth the terms whereby the defendant pleads guilty, often to a lesser offense or in exchange
for some concession regarding the government’s position on sentencing.
The federal sentencing guidelines are amended annually and sometimes on a more frequent
basis. For each defendant in our analysis, we used the sentencing table available on the date of the
presentence investigative report or plea agreement.
42

In the prior section where we estimated the potential cost savings from an increased use of
pretrial diversion, we used a slightly different methodology to perform our analysis. Because neither
EOUSA nor the USAOs we visited maintained cost data for pretrial diversion, in that prior section we
used a combination of U.S. Sentencing Commission and a National Institute of Justice report (NIJ)
criteria to estimate potential cost savings. In this section, the District Courts maintained records and
data that allowed us to estimate potential cost savings without the use of U.S. Sentencing Commission
or NIJ report criteria.
43
We did not know whether these participants would have been prosecuted and convicted
absent their respective diversion-based court programs, and our analysis did not include any possible
“good time” that might have reduced the actual time spent in custody by inmates to satisfy their
sentences. Our analysis also did not account for the costs to the Department to prosecute these cases
or the court costs either incurred or avoided by diversion-based court programs, including personnel
costs of U.S. Courts and Probation and Pretrial Services officials. Although the result of our analysis is
only an estimate of the incarceration costs that could be avoided, we believe that it is useful in
showing the potential diversion-based court programs have for cost savings.

24


District of California and the imprisonment costs based on the offender’s
recommended sentence as reported by the Eastern District of New York.
Central District of Illinois
As of October 2014, 114 offenders had participated in the Central District of
Illinois program from November 2002 to March 2014. Central District of Illinois
officials reported that 104 of these offenders successfully completed the program
while 10 offenders were terminated from the program. We judgmentally selected
49 successful participants.44 As shown in Table 4, we found the total incarceration
costs potentially avoided for those 49 offenders was between $7,721,258 and
$9,665,811, which calculates to an average of $157,577 to $197,261 saved per
offender. Central District of Illinois officials reported $7.9 million in cost savings
from 40 offenders who successfully completed its diversion-based court program as
of November 2013. District officials estimated the cost savings by multiplying the
average sentence for the 40 offenders (89 months) by its estimated monthly
imprisonment cost ($2,412). The resulting amount ($8,586,720) was then reduced
by the total cost of treatment provided to the 40 offenders ($657,011).45 In a
written response, district officials did not disagree with our cost calculations and
indicated that the difference between our calculation and theirs resulted from the
span of time covered by the two calculations.46
Table 4

Estimated Incarceration Costs Potentially Avoided for Sampled Participants

Who Successfully Completed the Central District of Illinois Program from 

November 2002 to March 2014


1
2
3
4
5
6
7
8
9
10

Offense
Level

Criminal History
Category

28
31
26
24
21
24
27
13
18
25

II
III
V
II
IV
I
II
I
III
II

Sentencing Range
(in months)
Low
High
87
108
135
168
110
137
57
71
57
71
51
63
78
97
12
18
33
41
63
78

Incarceration Costs
Avoided Range
Low
High
$210,453
$261,252
$325,080
$404,544
$268,510
$334,417
$139,137
$173,311
$119,928
$149,384
$124,491
$153,783
$187,824
$233,576
$29,292
$43,938
$68,541
$85,157
$135,954
$168,324

44

These 49 participants represented those who successfully completed the Central District of
Illinois program from November 2002 to March 2014 and had sentencing data we could use to assess
potential cost savings. We explain the methodology for our judgmental sample in Appendix 1.
45

Central District of Illinois U.S. Probation Service, Pretrial Alternatives to Detention
Initiative: Save Money Save Lives.
46

We also note that, in addition to analyzing potential cost savings for a different number of
offenders, the District utilized an overall average sentence as opposed to calculating the individual
sentencing ranges and considered additional costs of the diversion-based court program.

25


Incarceration Costs
Avoided Range
Low
High
11
21
I
$77,848
$96,784
12
26
III
$190,398
$236,777
13
27
I
$147,280
$183,048
14
29
III
$263,628
$329,535
15
29
II
$228,629
$285,197
16
21
I
$90,317
$112,286
17
27
I
$170,870
$212,367
18
25
II
$135,954
$168,324
19
29
II
$236,777
$295,361
20
7
III
$8,308
$20,770
21
19
II
$80,553
$100,081
22
29
III
$263,628
$329,535
23
31
I
$260,064
$325,080
24
28
III
$209,326
$261,118
25
17
I
$51,792
$64,740
26
34
III
$364,532
$455,665
27
32
III
$368,591
$458,908
28
27
I
$168,560
$209,496
29
28
II
$212,367
$263,628
30
6
III
$4,838
$19,352
31
21
II
$86,264
$107,304
32
15
IV
$64,740
$79,846
33
32
III
$368,591
$458,908
34
19
I
$72,570
$89,503
35
32
II
$329,535
$410,088
36
23
III
$116,109
$144,627
37
35
III
$436,170
$544,174
38
15
III
$49,848
$62,310
39
27
I
$170,870
$212,367
40
15
II
$51,261
$65,907
41
24
I
$98,889
$122,157
42
31
I
$224,316
$280,395
43
21
I
$90,317
$112,286
44
15
II
$43,617
$56,079
45
21
I
$90,317
$112,286
46
13
I
$29,292
$43,938
47
21
I
$71,743
$89,194
48
10
I
$14,646
$29,292
49
28
II
$168,693
$209,412
TOTAL
$7,721,258
$9,665,811
Source: OIG analysis of Central District of Illinois diversion-based court program records,
U.S. Sentencing Commission Guidelines, and the Federal Register
Offense
Level

Criminal History
Category

Sentencing Range
(in months)
Low
High
37
46
78
97
70
87
108
135
97
121
37
46
70
87
63
78
97
121
4
10
33
41
108
135
108
135
97
121
24
30
188
235
151
188
70
87
87
108
2
8
41
51
30
37
151
188
30
37
135
168
57
71
210
262
24
30
70
87
21
27
51
63
108
135
37
46
21
27
37
46
12
18
37
46
6
12
87
108

Central District of California
As of July 2015, 133 offenders had participated in the Central District of
California program from June 2012 to July 2015. Central District of California
officials reported that 76 of these offenders successfully completed the program, 48
were currently participating, and 9 offenders were terminated. We judgmentally

26


selected 13 successful participants.47 As shown in Table 5, we found the total
incarceration costs avoided for those 13 offenders was between $1,232,437 and
$1,593,352, which calculates to an average of $94,803 to $122,566 saved per
offender.
The Central District of California reported in February 2014 cost savings of
$2.8 million for its first 27 program participants. Because of the difference between
our calculation of incarceration costs and the Central District of California
calculation of its costs savings, we asked District officials for an explanation on how
it calculated its cost-savings. In a written response, a district official did not
disagree with our cost calculations and stated that the district did not intend its cost
estimates to be more than a snapshot of costs that might be saved from the
diversion-based court program.
Table 5

Estimated Incarceration Costs Potentially Avoided for Sampled Participants

Who Successfully Completed the Central District of California Program from 

June 2012 to March 2014

Offense
Level
1
2
3
4
5
6
7
8
9
10
11
12
13

7
21
12
12
26
27
13
CNDa
27
12
20
22
21

Criminal
History
Category
IV
I
CNDa
CNDa
VI
I
I
I
I
CNDa
III
VI
I
TOTAL

Sentencing Range
(in months)
Low
High
8
14
37
46
10
16
10
16
120
150
70
87
12
18
0
6
70
87
10
16
41
51
84
105
37
46

Incarceration Costs
Avoided Range
Low
High
$19,352
$33,866
$89,503
$111,274
$24,190
$38,704
$24,190
$38,704
$290,280
$362,850
$169,330
$210,453
$29,292
$43,938
$0
$14,646
$169,330
$210,453
$24,190
$38,704
$100,081
$124,491
$203,196
$253,995
$89,503
$111,274
$1,232,437
$1,593,352

a

We could not determine four participants’ criminal history category or offense level as that
information was not included in the plea agreements we reviewed. For the offender with a
missing offense level, we used the lowest offense level of 1. For those offenders with missing
criminal history categories, we used the lowest criminal history category of I, in both instances
so as not to overestimate the potential cost savings

Source: OIG analysis of Central District of California diversion-based court program records,
U.S. Sentencing Commission Guidelines, and the Federal Register

47
These 13 participants represented those who successfully completed the Central District of
California program as of March 2014 and had sentencing data we could use to assess potential cost
savings. We explain the methodology for our judgmental sample in Appendix 1.

27


Eastern District of New York
As of August 2015, the Eastern District of New York reported that 19
offenders successfully completed 2 separate diversion programs from January 2012
through January 2015, while 8 offenders were terminated from the programs during
that period. Unlike the Central District of Illinois and the Central District of
California, we could not calculate the sentence range for the Eastern District of New
York program participants based on the documentation we reviewed because the
documentation did not include the offender’s offense level and criminal history
category. Instead, we relied on an Eastern District of New York August 2015
alternatives to incarceration report about its two court programs. In the report, the
district quantified the potential costs saved from the completion of its 19 successful
program participants.48 As shown in Table 6, for these 19 successful participants,
the total potential estimated imprisonment costs saved based on the offender’s
recommended sentence under the sentencing guidelines was $2,225,344, or an
average of $117,123 per offender.49 The district further reported a potential
estimated cost savings of over $2,141,128 for the 19 successful participants after
deducting the actual costs of any prison time served ($84,216) by program
participants from the otherwise applicable incarceration costs.
Table 6
Incarceration Costs Potentially Avoided for Participants Who 

Successfully Completed the Eastern District of New York Programs

Reported from January 2012 to January 2015

Sentence
(in months)
1
2
3
4
5
6
7
8
9
10
11
12
13
14

27
27
78
57
27
52
42
52
42
3
37
24
97
97

Imprisonment
Costs Based on the
Offender’s
Recommended
Sentence
$68,904
$68,904
$199,056
$145,464
$68,904
$132,704
$107,184
$132,704
$107,184
$7,656
$94,424
$61,248
$247,544
$247,544

48

Eastern District of New York, Alternatives to Incarceration in the Eastern District of New
York: The Pretrial Opportunity Program and The Special Options Services Program (August 2015).
49

The district determined the recommended sentence by using the median guideline range or
mandatory minimum faced by each defendant who successfully completed the terms of the court
programs.

28

Imprisonment
Costs Based on the
Sentence
Offender’s
(in months)
Recommended
Sentence
15
51
$130,152
16
33
$84,216
17
33
$84,216
18
41
$104,632
19
52
$132,704
Total
$2,225,344
Source: Eastern District of New York, Alternatives to Incarceration in the
Eastern District of New York: The Pretrial Opportunity Program and The
Special Options Services Program (August 2015)

The Eastern District of New York has noted certain limitations inherent in its
cost figures. Specifically, it noted that the district’s cost savings estimate did not
account for additional costs that would have been incurred had the offenders been
incarcerated outside the program, such as the cost of caring for a defendant’s
family, loss of tax revenue resulting from the loss of employment, or the costs
associated with any increase in recidivism. It also noted that its cost savings
estimate did not capture the true costs of the type of intensive supervision and
assistance necessary for diversion programs or the costs of the judges’ additional
time spent on program matters. The district thus concluded that a systemic study
on the issue of cost savings was needed to fully analyze the true costs and benefits
of its diversion programs.
Additionally, during our interviews, officials spoke often about the “human”
cost savings achieved by the use of diversion-based court programs. One Assistant
U.S. Attorney told us that pretrial diversion is an opportunity to help people get
back on track with their lives. A District Judge told us the district’s program
changed lives and the cost savings were tremendous. Another District Judge said
their program saved families, lives, and people from incarceration.
Based on the savings that appear to be available through diversion-based
court programs, the well-placed concerns noted in the Eastern District of New
York’s August 2015 report about the difficulty of quantifying the full costs and
benefits of diversion programs, and the Department’s commitment to pursuing
diversionary programs, we believe that a more formal cost-benefit assessment is
needed for diversion-based court programs. Although EOUSA did not maintain
cost-saving documentation for pretrial diversion, we think a similar assessment for
pretrial diversion is needed as well. Such analyses would allow the Department to
measure more accurately its progress in implementing the goals of the Smart on
Crime initiative in reducing incarceration costs, and it would allow the Department
to make a more informed judgment about what guidance to issue to U.S. Attorneys
regarding the availability of and eligibility requirements for diversion programs
nationwide. In our view, the cost-benefit analysis should account for more than
just the costs of federal incarceration, probation and pretrial supervision, and
treatment services. We recommend that the Department coordinate with the U.S.
Sentencing Commission and the U.S. Courts to collect the necessary data and that
29


it evaluate the performance of pretrial diversion and diversion-based court
programs in reducing prosecution and incarceration costs.
Recidivism
The U.S. Sentencing Commission has defined recidivism as the occurrence of
any of the following events within a 2-year period following an offender’s release
into the community: a re-conviction, a re-arrest, or a revocation of supervised
release. Given the extent of such recidivism, even a small reduction in its rate can
lead to significant prosecution and incarceration costs savings.
We asked EOUSA for any recidivism studies on participants in pretrial
diversion and diversion-based court programs. EOUSA officials told us that they
had not conducted any studies. In our judgment, the potential for diversion
programs to reduce recidivism needs to be measured by the Department to
determine its progress toward the goals outlined in the Smart on Crime initiative.
Diversion’s recidivism reducing potential also needs to be measured to further the
Department’s effort to use performance-based management in compliance with
GPRA and the GPRA Modernization Act of 2010 in order to efficiently achieve the
goals of prosecution and reduce crime.
To make an initial effort to determine the potential for such programs to
reduce recidivism, we judgmentally selected 39 participants who had successfully
completed the Central District of Illinois program between November 2002 and
February 2011. We then reviewed the criminal histories of these individuals from
the FBI National Crime Information Center database. We found that 9 of the 39
graduates (or 23 percent) were re-convicted for a new offense, re-arrested, or had
their supervision revoked within 2 years of their diversion-based court program
graduation date.50 By comparison, the general recidivism rate for federal inmates
has been estimated as high as 41 percent. Of course, this is just an initial and very
limited effort, but we believe that it helps to confirm that a broader study of the
effect of pretrial diversion and diversion-based court programs on recidivism is
warranted. If positive results are proven to occur on a more widespread and
systemic basis, the Department should undertake more substantial efforts to
pursue the use of diversion programs by the USAOs. We recommend the
Department assess the USAOs’ use of pretrial diversion and participation in
diversion-based court programs in reducing recidivism.
Conclusion
The Department’s Smart on Crime initiative was intended to reform the
federal criminal justice system by in part, ensuring just punishments for low-level,
non-violent offenders. Smart on Crime outlined a range of options for federal
50

Seven of the 9 individuals’ charges involved: (1) possession of a controlled substance,
(2) supervision revocation, (3) probation violation, (4) theft, (5) possession of drug paraphernalia,
(6) resisting a peace officer, and (7) negligent failure to perform. Two individuals’ charges were
unknown.

30


prosecutors to consider to meet this objective, including the increased use of
alternatives to incarceration such as pretrial diversion and diversion-based court
programs where appropriate. However, we could not determine the Department’s
progress toward accomplishing this goal because the Department had not evaluated
the effectiveness of the USAOs’ use of pretrial diversion or their participation in
diversion-based court programs, and there was not sufficient reliable data to enable
us to comprehensively do so. We did find that about one-half of the USAOs appear
to have used pretrial diversion five times or fewer from FY 2012 through FY 2014,
and the great majority of judicial districts had no diversion-based court program at
all. Additionally, we found that the Department had not assessed the potential for
pretrial diversion or diversion-based court programs to reduce recidivism or
prosecution and incarceration costs, though our preliminary analyses lead us to
believe there may be potential for cost savings in both areas.
We therefore believe that the Department needs to perform an evaluation of
the effectiveness of the USAO’s pretrial diversion program and its efforts to expand
the use of diversion-based court programs where appropriate as part of the Smart
on Crime initiative. Such an evaluation should include a consideration of individual
USAOs’ local diversion policies to ensure that the Department is consistent in its
commitment toward the increased use of diversion programs. The evaluation
should also assess low-level, non-violent offender populations based on current and
reliable data, including U.S. Sentencing Commission statistics, to determine the
availability of suitable offenders for pretrial diversion and diversion-based court
programs. Moreover, the evaluation should assess the concerns offered by some
federal prosecutors about the use of diversion, and the training and outreach that
EOUSA provides regarding such programs. We also believe that EOUSA should
ensure that the USAOs are collecting accurate data within its LIONS system or
elsewhere regarding its use of and participation in diversionary programs to
facilitate such evaluation. In order to assess the impact of its efforts, we believe
that the Department needs to utilize current and reliable data from both inside and
outside the Department to assess the performance of diversionary programs in
reducing both prosecution and incarceration costs and recidivism. Such
assessments will enable the Department to set policies tailored to ensure that it
moves forward in an informed fashion to achieve its policies and meet statutory
requirements in this area consistent with its obligations to use taxpayer dollars
efficiently and protect the public from crime. Lastly, we believe the Department
should coordinate with the U.S. Courts to assess the impact of the USAOs’ use of
pretrial diversion and participation in diversion-based court programs in reducing
recidivism.
Recommendations
We recommend the Office of the Deputy Attorney General:
1. Take steps to ensure that the Department promptly evaluates the
effectiveness of the USAOs’ pretrial diversion programs and its efforts to
pursue the use of pretrial diversion and diversion-based court programs

31


where appropriate as part of the Smart on Crime initiative. Such steps
should include, but not be limited to:
	 an assessment of individual USAOs’ local diversion policies and
practices to ensure that they reflect the Department’s commitment
toward pursuing alternatives to incarceration for low-level, nonviolent offenders;
	 an assessment of its low-level, non-violent offender populations
based on current and reliable data, including U.S. Sentencing
Commission statistics, to determine the universe of potentially
suitable offenders for diversion;
	 an assessment of the reasons for prosecutorial concerns about the
use of diversion programs and strategies to address such concerns;
and;
	 an assessment of the substance and efficacy of its efforts to
provide training and outreach to the USAOs about the use of
pretrial diversion and participation in diversion-based court
programs.
2. Take steps to ensure that the Department promptly conducts an
assessment based on current and reliable data, including information from
the U.S. Sentencing Commission and the U.S. Courts, of the impact of the
USAOs’ use of pretrial diversion and participation in diversion-based court
programs in reducing prosecution and incarceration costs.
3. Take steps to ensure that the Department, in coordination with the U.S.
Courts, conducts an assessment of the impact of the USAOs’ use of
pretrial diversion and participation in diversion-based court programs in
reducing recidivism.
We recommend EOUSA:
4. Identify and assist the USAOs in revising local diversion policies as may
be necessary to ensure that they are consistent with the Department’s
commitment to increase the use of diversion programs consistent with the
Smart on Crime initiative.
5. Develop and implement procedures to ensure that pretrial diversion and
diversion-based court program activities are accurately recorded within
the Legal Information Office Network System.

32


STATEMENT ON INTERNAL CONTROLS
As required by the Government Auditing Standards, we tested, as
appropriate, internal controls significant within the context of our audit objectives.
A deficiency in an internal control exists when the design or operation of a control
does not allow management or employees, in the normal course of performing their
assigned functions, to timely prevent or detect: (1) impairments to the
effectiveness and efficiency of operations, (2) misstatements in financial or
performance information, or (3) violations of laws and regulations. Our evaluation
of EOUSA’s internal controls was not made for the purpose of providing assurance
on its internal control structure as a whole. EOUSA management is responsible for
the establishment and maintenance of internal controls.
Through our audit testing, we did not identify deficiencies in EOUSA’s internal
controls that were significant within the context of the audit objectives and that,
based upon the audit work performed, we believe would adversely affect EOUSA’s
ability to effectively and efficiently operate, to correctly state financial information,
and to ensure compliance with laws and regulations.
However, we did identify weaknesses regarding EOUSA’s controls over the
reporting of pretrial diversion cases that may have resulted in inaccuracies when
reporting other statistics. To achieve our audit objectives, we relied on computerprocessed data contained within EOUSA’s Legal Information Office Network System.
Our review of system controls and interviews with EOUSA and USAO staff caused us
to doubt the data’s reliability. However, when the data is viewed in context with
other available evidence, we believe the opinions, conclusions, and
recommendations in this report are valid. EOUSA officials acknowledged these
discrepancies and expressed interest in strengthening their processes.
Because we are not expressing an opinion on EOUSA’s internal control
structure as a whole, this statement is intended solely for the information and use
of EOUSA. This restriction is not intended to limit the distribution of this report,
which is a matter of public record.

33


STATEMENT ON COMPLIANCE WITH LAWS AND REGULATIONS
As required by the Government Auditing Standards, we tested as appropriate
given our audit scope and objectives, procedures, practices, and controls, to obtain
reasonable assurance that EOUSA’s management complied with federal laws and
regulations for which noncompliance, in our judgment, could have a material effect
on the results of our audit. EOUSA’s management is responsible for ensuring
compliance with applicable federal laws and regulations. In planning our audit, we
identified the following laws and regulations that concerned the operations of the
auditee and that were significant within the context of the audit objectives.
	 Relevant portions of the Office of Management and Budget Circular
A-123, Management’s Responsibility for Internal Control
	 Government Performance and Results Act of 1993 (GPRA) and the
GPRA Modernization Act of 2010, Public Law 111-352
Nothing came to our attention that caused us to believe that EOUSA was not
in compliance with the laws and regulations cited above.

34


APPENDIX 1
AUDIT OBJECTIVES, SCOPE, AND METHODOLOGY
Objectives
The objectives of this audit were to evaluate the (1) design and
implementation of federal pretrial diversion and diversion-based court programs,
(2) variances in the usage of the programs among the USAOs, and (3) costs
savings associated with successful program participants.
Scope and Methodology
We conducted this performance audit in accordance with generally accepted
government auditing standards. Those standards require that we plan and perform
the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe that the
evidence obtained provides a reasonable basis for our findings and conclusions
based on our audit objectives. We conducted field work at the following locations:
Office of the Deputy Attorney General
Executive Office for U.S. Attorneys
District of Columbia
Northern District of Georgia
District of South Carolina
Eastern District of New York
Central District of California
Central District of Illinois
Middle District of North Carolina

Washington, D.C.
Washington, D.C.
Washington, D.C.
Atlanta, Georgia
Columbia and Charleston, South
Carolina
Brooklyn, New York
Los Angeles, California
Peoria, Illinois
Greensboro, North Carolina

To evaluate the design and implementation of pretrial diversion and
diversion-based court programs, we interviewed officials from the Deputy Attorney
General’s Office, the Executive Office for U.S. Attorneys, and judges from the
U.S. Courts. We interviewed officials from the U.S. Attorney’s Office, and the
U.S. Courts in the Northern District of Georgia, District of South Carolina, Eastern
District of New York, Central District of California, Central District of Illinois, and the
Middle District of North Carolina. We also interviewed Federal Public Defenders in
the District of South Carolina and the Central District of California. Additionally, we
interviewed private defense attorneys in the Central District of Illinois. The officials
we interviewed included 3 U.S. Attorneys, 15 District and Magistrate Judges,
11 Assistant U.S. Attorneys, 4 Federal Public Defenders, 17 Probation and Pretrial
Services Officers, and 4 private defense attorneys who represented clients that
participated in a diversion-based program. We observed planning sessions and
court proceedings for the BRIDGE Court in the District of South Carolina, the
Presentence Alternative to Detention Initiative Court in the Central District of
Illinois, and the Conviction and Sentence Alternative Court in the Central District of
35


California for the purpose of obtaining a broad understanding of each program’s
operations. We also discussed diversion-based court programs with program
graduates from the District of South Carolina and the Central District of Illinois.
While we were not auditing the U.S. Courts, we obtained documentation about
diversion-based court programs from court officials and are appreciative.
To evaluate the variances in the usage of diversion programs among the
USAOs we:
	 obtained and analyzed the number of pretrial diversion cases closed by
each district from FY 2012 through FY 2014;
	 interviewed EOUSA and USAO officials about the use of pretrial diversion
and participation in diversion-based court programs; and
	 interviewed EOUSA and USAO officials about the practice of recording and
reporting diversion program activity.
To evaluate cost savings as a result of successful diversion program
offenders we:
	 obtained costs savings documentation from U.S. Court officials; and
	 interviewed U.S. Probation officials about supervising diversion program
participants.
We obtained U.S. Sentencing Commission statistics for offenders sentenced
from FY 2012 through FY 2014 to identify offenders potentially suitable for pretrial
diversion or diversion-based court programs. We limited our analysis of these
statistics to cases that had complete guideline information, which were 74,495 out
of 84,173 cases for FY 2012, 71,004 out of 80,035 cases for FY 2013, and 67,672
out of 75,836 cases for FY 2014. The U.S. Sentencing Commission defines a case
as one sentencing event for an individual defendant.
We judgmentally selected successful diversion-based court program
participants from the Central District of Illinois and the Central District of California
to determine the incarceration costs avoided from successful participation. We
limited our testing to those participants who had completed their respective
program by the date of our field visit or testing and had documentation on file that
contained most participants’ offense level and criminal history category according to
U.S. Sentencing Guidelines. We also reviewed and relied on an Eastern District of
New York alternatives to incarceration report dated August 2015.

36


APPENDIX 2
COMPARISON OF PRETRIAL DIVERSION OFFENDERS TO 

OFFENDERS POTENTIALLY SUITABLE FOR PRETRIAL

DIVERSION ACCORDING TO U.S. SENTENCING COMMISSION

GUIDELINES FROM FY 2012 THROUGH FY 2014


District

Offenders Who
Successfully
Completed Pretrial
Diversion

Southern California
Eastern Virginia
Eastern Missouri
South Carolinaab
Eastern Michigan
Eastern Louisiana
Hawaii
Western Washington
Puerto Rico
Eastern Arkansas
Western Pennsylvania
Northern Texas
Western Texas
Wyoming
Middle Pennsylvania
South Dakota
Eastern North Carolina
Middle Georgia
Middle Alabama
Western Arkansas
Northern Alabama
Northern New York
Western Louisiana
Middle Tennessee
New Hampshire
Arizona
Guam
Eastern California
New Jersey
Eastern Washington
Middle Florida
Eastern Texas
Western Oklahoma
Western Michigan
Northern Iowa
Eastern New Yorkab
Idaho
Northern Mississippi
Southern Georgia
Southern Ohio
Oregon
Northern California

326
132
102
101
85
67
42
41
38
30
28
26
24
23
19
17
16
16
15
14
14
13
12
12
12
11
11
11
10
10
9
9
9
9
8
8
8
8
8
8
7
7

37


Offenders Potentially
Suitable for Pretrial
Diversion Based on Our
Analysis of U.S.
Sentencing Commission
Statistics
92
99
69
143
89
86
67
63
154
31
43
58
673
30
75
165
32
214
52
52
49
54
75
11
15
98
63
44
71
81
173
77
37
59
40
127
44
30
94
59
39
42

District

Offenders Who
Successfully
Completed Pretrial
Diversion

Northern West Virginia
Connecticut
Delaware
Northern Illinois
Southern West Virginia
Montana
Eastern Oklahoma
New Mexico
Southern Alabama
Northern Georgiaa
Kansas
Eastern Tennessee
Western Missouri
Eastern Kentucky
Nevada
Middle North Carolinaa
Maine
Southern Iowa
Southern Texas
Northern Ohio
Western Virginia
Western New York
Middle Louisiana
Rhode Island
Central Californiaab
Central Illinoisab
Massachusetts
Utah
North Dakota
Eastern Wisconsin
Southern Illinois
Western Kentucky
Colorado
Western Tennessee
Southern Indiana
Western North Carolina
Northern Oklahoma
Southern Florida
Western Wisconsin
Northern Florida
Southern New York
Nebraska
Northern Indiana
Virgin Islands
Maryland
Alaska
District of Columbiaa
Minnesota
Southern Mississippi
Northern Mariana Islands

7
7
7
6
6
6
6
6
5
5
5
5
4
4
4
4
4
4
4
3
3
3
3
3
3
2
2
2
2
2
2
2
2
2
2
2
2
1
1
1
0
0
0
0
0
0
0
0
0
0

38


Offenders Potentially
Suitable for Pretrial
Diversion Based on Our
Analysis of U.S.
Sentencing Commission
Statistics
33
30
8
63
37
38
20
303
83
20
106
57
39
56
52
28
52
25
102
85
57
145
41
21
106
51
38
19
122
36
50
57
53
61
37
27
33
614
20
61
128
50
50
20
54
15
47
18
58
16

District

Offenders Who
Successfully
Completed Pretrial
Diversion

Eastern Pennsylvania
Vermont
Total
a
Denotes a judicial district we visited
b

0
0
1,520

Offenders Potentially
Suitable for Pretrial
Diversion Based on Our
Analysis of U.S.
Sentencing Commission
Statistics
80
15
7,106

Denotes a judicial district we visited with an operational diversion-based court program

Source: OIG Analysis of Executive Office for U.S. Attorneys Records and U.S. Sentencing
Commission statistics

39


APPENDIX 3
2015 U.S. SENTENCING TABLE
(in months of imprisonment)

Criminal History Category (Criminal History Points)


Zone A

Zone B

Zone C
Zone D	

Offense 

Level

1

2

I
(0 or 1)
0-6
0-6

II
(2 or 3)
0-6
0-6

III
(4,5,6)
0-6
0-6

IV
(7,8,9)
0-6
0-6

3

0-6

0-6

0-6

0-6

2-8

3-9

4

0-6

0-6

0-6

2-8

4-10

6-12

5
6
7
8
9
10
11
12
13
14

15


0-6
0-6
0-6
0-6
4-10
6-12
8-14
10-16
12-18
15-21
18-24

0-6
1-7
2-8
4-10
6-12
8-14
10-16
12-18
15-21
18-24
21-27

1-7
2-8
4-10
6-12
8-14
10-16
12-18
15-21
18-24
21-27
24-30

4-10
6-12
8-14
10-16
12-18
15-21
18-24
21-27
24-30
27-33
30-37

6-12
9-15
12-18
15-21
18-24
21-27
24-30
27-33
30-37
33-41
37-46

9-15
12-18
15-21
18-24
21-27
24-30
27-33
30-37
33-41
37-46

41-51


16


21-27

24-30

27-33

33-41

41-51

46-57


17


24-30

27-33

30-37

37-46

46-57

51-63


18


27-33

30-37

33-41

41-51

51-63

57-71


19


30-37

33-41

37-46

46-57

57-71

63-78


20


33-41

37-46

41-51

51-63

63-78

70-87


21


37-46

41-51

46-57

57-71

70-87

77-96


22


41-51

46-57

51-63

63-78

77-96

84-105


23


46-57

51-63

57-71

70-87

84-105

92-115


24


51-63

57-71

63-78

77-96

92-115

100-125


25


57-71	

63-78

70-87

84-105

100-125

110-137


26


63-78	

70-87

78-97

92-115

110-137

120-150


27


70-87	

78-97

87-108

100-125

120-150

130-162


28

29


78-97	
87-108

87-108
97-121

97-121
108-135

110-137
121-151

130-162
140-175

140-175

151-188


30


97-121

108-135

121-151

135-168

151-188

168-210


31


108-135

121-151

135-168

151-188

168-210

188-235


32


121-151

135-168

151-188

168-210

188-235

210-262


33


135-168

151-188

168-210

188-235

210-262

235-293


34


151-188

168-210

188-235

210-262

235-293

262-327


35


168-210

188-235

210-262

235-293

262-327

292-365


40


V
(10,11,12)
0-6
0-6

VI

(13 or more)

0-6

1-7

(in months of imprisonment)
Criminal History Category (Criminal History Points)
Offense
Level
36
37
38
39
40
41
42
43
Source: U.S.

I
II
III
(0 or 1)
(2 or 3)
(4,5,6)
188-235
210-262
235-293
210-262
235-293
262-327
235-293
262-327
292-365
262-327
292-365
324-405
292-365
324-405
360-life
324-405
360-life
360-life
360-life
360-life
360-life
life
life
life
Sentencing Commission 2015 Guidelines

41


IV
(7,8,9)
262-327
292-365
324-405
360-life
360-life
360-life
360-life
life
Manual

V
(10,11,12)
292-365
324-405
360-life
360-life
360-life
360-life
360-life
life

VI
(13 or more)
324-405
360-life
360-life
360-life
360-life
360-life
360-life
life

APPENDIX 4
FEDERAL ALTERNATIVE TO INCARCERATION PROGRAMS, 

INCLUDING DIVERSION-BASED COURT PROGRAMS

AS OF AUGUST 2015

1
2

District
Central District of California
Southern District of California

3

District of Connecticut

4

Central District of Illinois

5
6
7
8
9
10
11
12
13

a

14
15
16
The

Name of Court
Convictions and Sentence Alternative
Alternative to Prison Sentence
Program
Support Court

Type of Court
Substance Abuse
Substance Abuse
Immigration and
Drug Trafficking
Substance Abuse

Pretrial Alternatives to Detention
Initiative
District of New Hampshire
Law Abiding, Sober, Employed, and
Substance Abuse
Responsible
Eastern District of New York
Pretrial Opportunity Program, Special Substance Abuse and
Options Services
Non-violent Crime
District of South Carolina
BRIDGE
Substance Abuse
Western District of Virginia
Veterans Treatment Court
Veterans
Western District of Washington
Drug Reentry Alternative Model
Substance Abuse
District of Oregon
Courts Assisted Pretrial Supervision
Substance Abuse
District of Massachusetts
Repair Invest Succeed Emerge
Varied
Southern District of Ohio
Special Options Addressing
Not Specified
Rehabilitation
Eastern District of Missouri
Sentencing Alternatives Improving
Varied
Lives
District of Utaha
Basin Program
Substance Abuse
Western District of Texas
Adelante Program
Substance Abuse
Eastern District of California
Better Choices Court
Unknown
District of Utah anticipates adding a pretrial diversion component to its Basin Program in 2016

Source: Eastern District of New York, Alternatives to Incarceration in the Eastern District of New York:
The Pretrial Opportunity Program and The Special Options Services Program (August 2015).

42


APPENDIX 5
U.S. SENTENCING GUIDELINES CRITERIA USED

IN OUR TESTING TO IDENTIFY THOSE OFFENDERS

POTENTIALLY SUITABLE FOR PRETRIAL DIVERSION AND
DIVERSION-BASED COURT PROGRAMS
Criteria
Criminal History
(Category I)

Description
Defendant’s record of past criminal conduct relevant for the
purpose of sentencing. The defendant is assigned a category
from I to VI based on the extent of past conduct and how
recently it occurred. A defendant with a record of prior criminal
behavior is placed in a higher criminal history category, and is
considered deserving of greater punishment.

Criminal History Points

Defendant’s criminal history rating determined by the total
criminal history points assigned from application of the U.S.
Sentencing Guidelines. Generally, this is based on the length
of any prior imposed sentenced and its recency. For our
analysis, we used those offenders whose sentencing reflected
zero criminal history points.
Case identified either by application of the U.S. Sentencing
guideline enhancement for weapon involvement or a firearm
conviction, or both.

Weapon Involvement

Aggravated Role
Adjustment

Defendant’s role in the offense as an organizer, leader,
manager, or supervisor of one or more other participants.

Career Offender
Adjustment (No prior
arrest for a crime of
violence or controlled
substance)
Zone A

Defendant’s commission of a felony that was a crime of
violence or controlled substance offense with two priors of
either type.
A guideline range is in Zone A when the minimum term of
imprisonment specified is 0 months.

Zone B

A guideline range is in Zone B when the minimum term of
imprisonment specified is at least one but not more than 6
months, and there are alternatives to incarceration available
such as a probationary sentence with conditions requiring
intermittent confinement, community confinement, or home
detention.
Source: U.S. Sentencing Commission

43


APPENDIX 6
OFFICE OF THE DEPUTY ATTORNEY GENERAL

AND EXECUTIVE OFFICE FOR U.S. ATTORNEYS

RESPONSE TO THE DRAFT REPORT


U.S. Department of Justice

950 Pennsylvania Ave., N. W.
Washington. D.C. 20530

JUN 24 21116

MEMORANDUM

TO:

Ferris B. Polk
Regional Audit Manager
Atlanta Regional Audit Office
Office of the Inspector General
Department of Justice

FROM:

Carlos Felipe Uriarte
Associate Deputy Attorney General
Office of the Deputy Attorney General

?:/Uz-

~~

Director
Executive Office for United States Attorneys
SUBJECT:

Response to GIG' s Audit of the Department' s Use of Pretrial Diversion and
Diversion-Based Court Programs as Alternatives to Incarceration

The Office of the Deputy Attorney General (ODAG) and the Executive Office for United
States Attorneys (EOUSA) appreciate the opportunity to comment on the audit undertaken by the
Office of the Inspector General (OIG) regarding the use of pretrial diversion and diversion-based
court programs as alternatives to incarceration. We agree that more can be done to examine the
effectiveness of pretrial diversion and concur in the specific recommendations in the report. The
recommendations may assist the Department in reviewing the appropriate use of diversion in the
United States Attorneys' offices (USAOs).
We note initially that although fostering greater understanding and consideration of
diversion programs within the USAO community is an important development, there are a
number of factors that could limit the exparu;ion of diversion practices that are not reflected in
the audit report. For instance, one of the key principles of the Smart on Crime initiative directs
prosecutors to prioritize federal prosecutions to focus on "the most serious cases that implicate
clear, substantial federal interests." Smart on Crime, August 2013, at p. 2. This principle should
result in low level , non-violent offenders being declined for federal prosecution and/or referred
to the state system rather than being diverted from the federal prison system. In addition,
diversion-based court programs require the involvement of other entities. Sometimes these

44


-2entities do not want to participate in diversion programs, which is beyond the USAOs ' control.
Furthennore, existing diversion-based court programs handle small numbers of offenders,
typically less than 20 per year. For example, the P ADI program in the Central District of
Illinois, the longest running such program, hosted 114 participants from 2002 to 2014, fewer
than nine people per year. Based on our discussions with practitioners in the field, these
programs cannot easily be expanded to accommodate significantly more participants because of
limited time and resources.
Additionally, while the Department's strategic objectives and the Smart on Crime
principles may foster an expanded use of diversion programs, they do not state that the
Department' s goal is to increase the number of federal offenders participating in diversion.
Specifically, Strategic Objective 3.4 in the Department's Strategic Plan for Fiscal Years 2014 2018 seeks to "[r]efonn and strengthen America's criminal justice system by targeting the most
serious offenses for federal prosecution, expanding the use of diversion programs, and aiding
inmates in reentering society." Although this strategic objective refers to "expanding" diversion.
the explanatory text is more circumspect, referring only to "taking steps to identify and share
best practices for enhancing the use of diversion programs, such as drug treatment and
community services initiatives that can serve as effective alternatives to incarceration." Strategic
Plan, at p. 51. Similarly, the Smart on Crime initiative requires USAOs to consider pretrial
diversion, not necessarily to increase its use. As the Smart on Crime announcement states, " In
appropriate instances involving non-violent offenses, prosecutors ought to consider alternatives
to incarceration, such as drug courts, specialty courts, or other diversion programs." Smart on
Crime, August 2013, at p. 4 (emphasis added). 1 Read together in context, Strategic Objective
3.4 and the Smart on Crime initiative focus on removing barriers to the use of diversion and
facilitating the availability of diversion as an option, rather than simply increasing the numbers
of offenders in diversion programs as a cost-savings measure.
The Department agrees, however, that pretrial diversion can be an effective option to
achieve justice in appropriate cases and may possibly save prosecutorial and incarceration
resources in certain circumstances. The Smart on Crime initiative has prompted greater
awareness of diversion, and as alluded to in the audit report, EOUSA has taken a number of
significant steps to infonn USAOs about new and creative forms of diversion. These steps
include issuing memoranda to all USAOs describing successful diversion-based court programs,
hosting in-person training for all United States Attorneys and key USAO staff, and creating an
informative and targeted toolkit to assist the USA Os. In addition, EOUSA has been integrally
involved in planning a two and a half day workshop on alternatives to incarceration on June 2728,2016, which is being co-sponsored by the Department and the Federal Judicial Center.
1 EOUSA's memorandum to USAOs describing court-based diversion programs, issued as part
of the original Smart on Crime announcement on August 12, 2013, stated that "USAOs are
encouraged to thoughtfully consider creative ways to address the unique crime problems that
affect each district. Post-plea drug or specialty court programs can fonn a part of an effective
prosecution program."

45


-3-

The Department's encouragement for prosecutors to more carefully consider diversion has in fact
led to greater utilization of diversion. In 2013 , there were fewer than 10 federal diversion-based
court programs in existence across the country. In 2016, there are 31 such programs. This is a
significant accomplishment that makes cJear that the USAOs are following Smart on Crime' s
principle of considering diversion where appropriate. With that in mind, we now turn to the
specific recommendations.

Recommendation 1. Take steps to ensure that the Department promptly evaluates the
effectiveness of the USAOs' pretrial diversion programs and its efforts to pursue the use of
pretrial diversion and diversion-hased court programs where appropriate as part 0/ the Smart
on Crime initiative. Such steps should include, but not be limited to:
•

•

•
•

an assessment of individual USA Os' local diversion policies and practices to ensure
that they reflect the Department's commitment toward pursuing alternatives to
incarceration for low-level, nonviolent offenders;
an assessment of its low-level, non-violent offender populations based on current and
reliable data, including U.S. Sentencing Commission statistics, to determine the
universe ofpotentially suitable offenders for diversion;
an assessment of the reasons for prosecutorial concerns about the use of diversion
programs and strategies to address such concerns; and
an assessment of the substance and efficacy of its efforts to provide training and
outreach to the USA Os about the use ofpretrial diversion and participation in
diversion-based court programs.

Response: The Smart on Crime initiative requires each USAO to fully consider whether
diversion or other alternatives to incarceration can be effectively incorporated into the district's
prosecution strategy. These recommendations are designed to provide USAOs with more
information about current attitudes and understanding about diversion, and to ensure that current
USAO policies and training are appropriate and as effective as possible. Accordingly, the
Department agrees with this recommendation. Of course, the fact that a USAO considers
diversion for a potentially suitable candidate does not mean that the offender should ultimately
be diverted. The decision to divert an offender must always be based on the facts and
circumstances of that offender' s particular case. For that reason, we must be careful not to
mistake the universe of potentially suitable offenders for diversion for a numeric performance
measure.

Recommendation 2. Take steps to ensure that the Department promptly conducts an
assessment based on current and reliable data, including information from the U.S.
Sentencing Commission and the U.S. Courts, of the impact of the USAOs' use of pretrial
diversion and participation in diversion-based court programs in reducing prosecution and
incarceration costs.
Response: The Department agrees to take steps to assess the impact of diversion in reducing
prosecution and incarceration costs. While, as noted earlier, the ultimate decision to use

46


- 4-

diversion in any given case must be based on the facts and circumstances of the case, cost data
may help the Department and the USAOs improve their analysis of which types of cases to
prosecute, decline for federal prosecution, refer for state prosecution, or divert.

Recommendation 3. Take steps to ensure that the Department, in coordination with the U.S.
Courts, conducts an assessment o/the impact of the USAOs' use a/pretrial diversion and
participation in diversion-based court programs in reducing recidivism.
Response: The Department agrees to take steps to assess the impact of diversion programs on
recidivism. Historical recidivism data cannot predict future outcomes in individual cases.
However, like cost data, an assessment of recidivism may help to infonn an analysis of the
appropriate use of diversion.

Recommendation 4. Identify and assist the USAOs in revising local diversion policies as may
be necessary to ensure that they are consistent with the Department's commitment to increase
the use of diversion programs consistent with the Smart on Crime initiative.
Response: As the audit report correctly notes, "the use of diversion is an exercise of local
prosecutorial discretion, and prosecutors are not obligated to divert an offender." Audit Report,
at p. 12. In implementing this recommendation, EOUSA agrees to assist USAOs in assessing
whether their local diversion policies are consistent with the intent of the Smart on Crime
initiative. EOUSA will work to clarify policies where necessary and also to increase awareness
of the use of pretrial diversion as a prosecutorial option where appropriate.

Recommendation 5. Develop and implement procedures to ensure that pretrial diversion and
diversion-hased court program activities are accurately recorded within the Legal Information
Office Network System [LlONSJ_
Response: Increased interest in and utilization of diversion over the last several years supports
the need for this recommendation, which EOUSA fully embraces. As described in the audit
report, the development of new types of diversion has complicated the data-gathering process. In
particular, a participant can successfully complete a diversion-based court program and still
receive a federal conviction, a situation that has been difficult to capture in LIONS. To
implement this recommendation, EOUSA will update LIONS to facilitate the tracking of
(1) those who participate in traditional pretrial diversion, (2) those who participate in a court­
based diversion program, and (3) the outcome of diversion, including the length of any sentence
ultimately imposed, whether it was imposed as a result of the success or failure of pretrial
diversion.
Again, thank you for the opportunity to respond to this audit report, and we look forward
to following up on these recommendations.

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APPENDIX 7
OFFICE OF THE INSPECTOR GENERAL

ANALYSIS AND SUMMARY OF ACTIONS 

NECESSARY TO CLOSE THE REPORT

The Department of Justice (DOJ or Department) Office of the Inspector
General (OIG) provided a draft of this audit report to the Office of the Deputy
Attorney General (ODAG) and the Executive Office for U.S. Attorneys (EOUSA) for
review and official comment. The ODAG and EOUSA provided a joint response,
which is incorporated in Appendix 6 of this final report. The ODAG concurred with
recommendations 1, 2, and 3; and EOUSA concurred with recommendations 4 and
5. The following provides the OIG analysis of the response and summary of actions
necessary to close to the report.
Analysis of the Joint Response
In their joint response, the ODAG and EOUSA assert that our audit report
does not reflect a number of factors that could limit the expansion of diversion
practices. We disagree with this statement as our audit report addresses the
factors highlighted by the ODAG and EOUSA.
First, the joint response states that one Smart on Crime principle, prioritizing
prosecutions to focus on the most serious cases that implicate clear, substantial
federal interests, should result in low-level, non-violent offenders being declined for
federal prosecution or referred to a state system. We noted this principle in our
audit report and its implication for another Smart on Crime principle, which was to
pursue alternatives to incarceration for low-level, non-violent offenders. Although
we understand that declining prosecution or referring a matter to a state system is
often appropriate, we believe that adherence to both of these Smart on Crime
principles is achievable and should not limit the expansion of the Department’s
diversion practices. In fact, the Department discussed the interplay between these
two principles in accompanying guidance to Smart on Crime. This guidance states
that “the Attorney General’s plan begins with an emphasis on prioritizing
prosecutions. This means focusing on the most critical cases rather than the sheer
number of cases.”51 The guidance added that “for those cases that do get filed, it
makes sense to consider alternatives to incarceration for low-level, non-violent
offenses. This means an increased use of diversion programs, such as drug courts,
that reduce taxpayer expense and have the potential to be more successful at
preventing recidivism.”52 In our opinion, this guidance clearly suggests that Smart
on Crime’s focus on the most serious cases does not diminish the importance of
expanding the use of diversion programs for low-level, non-violent offenders.

51

52

Message Guidance on Justice Department’s “Smart on Crime” Initiative (August 12, 2013).
Ibid.

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Furthermore, the ODAG’s and EOUSA’s view in the joint response that a
focus on the most serious cases should limit the number of suitable offenders for
diversion is contrary to the results of our audit work. As discussed in our audit
report, we found a population of federally sentenced low-level, non-violent
offenders, for which diversion may have been appropriate. Although we recognized
in the audit report that not all offenders identified from our analyses would
necessarily be eligible for a diversion program; we believe that our results are
useful in illustrating that there remains a population of offenders for whom a
diversionary disposition may be a possibility. In implementing the Smart on Crime
reforms, we believe federal prosecutors should consider the use of diversion for
low-level, non-violent offenders for whom a decision to prosecute has been made
when they meet the local diversion program’s entrance and eligibility requirements.
Next, the joint response states that diversion-based court programs require
involvement from other entities and that sometimes these entities do not want to
participate, which is beyond the U.S. Attorney’s Offices’ (USAO) control. The
inherent partnership of diversion-based court programs among the USAOs, U.S.
Courts, Probation and Pretrial Services, and others, is an aspect we discussed at
length in our audit report, and we recognize that some non-DOJ agencies may
choose not to participate in a diversion-based court program. However, to be
consistent with Smart on Crime and the Department’s Strategic Plan, we believe
the USAOs should consider participating in diversion-based court programs in those
districts where non-DOJ agencies have expressed an interest in establishing a
program.
Moreover, the response suggests that limited time and resources affects
diversion program enrollment. However, the joint response later reports that
diversion-based court programs have increased from fewer than 10 programs in
2013 across the country, to 31 programs in 2016.53 This rapid growth in such a
short timeframe strongly suggests that time and resources are not necessarily
insurmountable obstacles toward the expansion of diversion programs.
Finally, the response asserts that while the Department’s FY 2014-2018
Strategic Plan and Smart on Crime initiative may foster an expanded use of
diversion programs, these authorities do not state that the Department’s goal is to
increase the number of federal offenders participating in diversion. The response
asserts that the Strategic Plan’s call for the expansion of diversion, when read with
other parts of the Plan and Smart on Crime, was intended to focus on removing
barriers to the use of diversion and facilitating the availability of diversion as an
option rather than simply increasing the numbers of offenders in diversion
programs as a cost-savings measure. As additional support, the response points to
the Smart on Crime instruction for USAOs to consider (emphasis added) pretrial
diversion and not necessarily to increase its use. We agree that Smart on Crime
and the Strategic Plan encourages both the removal of barriers against diversion
53

In our audit report, we noted that 16 diversion-based court programs were in operation or
being planned as of August 2015 according to an Eastern District of New York report.

49


programs and facilitating the availability of diversion programs. However, despite
the implication, we are not suggesting that the Department simply increase its use
of diversion to save money. Instead, we are suggesting that when barriers to
diversion are removed and consideration for using the programs occurs with more
frequency among USAOs, the number of participants in the programs will naturally
expand. As we note throughout the report, the net effect of this expanded use
could be significant cost savings for the Department and lower recidivism rates.
Summary of Actions Necessary to Close the Report
1. We recommend the ODAG take steps to ensure that the Department
promptly evaluates the effectiveness of the USAOs’ pretrial diversion
programs and its efforts to pursue the use of pretrial diversion and
diversion-based court programs where appropriate as part of the
Smart on Crime initiative. Such steps should include, but not limited
to:
	 an assessment of individual USAOs’ local diversion policies
and practices to ensure that they reflect the Department’s
commitment toward pursuing alternatives to incarceration
for low-level, non-violent offenders;
	 an assessment of its low-level, non-violent offender
populations based on current and reliable data, including
U.S. Sentencing Commission statistics, to determine the
universe of potentially suitable offenders for diversion;
	 an assessment of the reasons for prosecutorial concerns
about the use of diversion programs and strategies to
address such concerns; and
	 an assessment of the substance and efficacy of its efforts to
provide training and outreach to the USAOs about the use of
pretrial diversion and participation in diversion-based court
programs.
Resolved. The ODAG agreed with our recommendation; however, it did not
provide information on how it would implement the recommendation. This
recommendation can be closed when we receive evidence of the
Department’s evaluation of the effectiveness of the USAOs’ pretrial diversion
programs and its efforts to pursue the use of pretrial diversion and diversionbased court programs, where appropriate, as part of the Smart on Crime
initiative.
2. We recommend the ODAG take steps to ensure that the Department
promptly conducts an assessment based on current and reliable data,
including information from the U.S. Sentencing Commission and the
U.S. Courts, of the impact of the USAOs’ use of pretrial diversion and
50


participation in diversion-based court programs in reducing

prosecution and incarceration costs. 

Resolved. The ODAG agreed to take steps to assess the impact of diversion
in reducing prosecution and incarceration costs; however, it did not provide
information on how it would implement the recommendation. This
recommendation can be closed when we receive evidence that the
Department has conducted an adequate assessment and acted on the results
as appropriate.
3. We recommend the ODAG take steps to ensure that the Department,
in coordination with the U.S. Courts, conducts an assessment of the
impact of the USAOs’ use of pretrial diversion and participation in
diversion-based court programs in reducing recidivism.
Resolved. The ODAG agreed to take steps to assess the impact of diversion
programs on recidivism; however, it did not provide information on how it
would implement the recommendation. This recommendation can be closed
when we receive evidence that the Department has conducted an adequate
assessment and acted on the results as appropriate.
4. We recommend EOUSA identify and assist the USAOs in revising local
diversion policies as may be necessary to ensure that they are
consistent with the Department’s commitment to increase the use of
diversion programs consistent with the Smart on Crime initiative.
Resolved. EOUSA agreed to assist the USAOs in assessing whether their
local diversion policies are consistent with the intent of the Smart on Crime
initiative. EOUSA also stated that it will work to clarify policies where
necessary and to increase awareness of the use of pretrial diversion as a
prosecutorial option where appropriate. This recommendation can be closed
when we receive evidence that EOUSA has worked with the USAOs to revise
local diversion policies consistent with the Smart on Crime initiative.
5. We recommend EOUSA develop and implement procedures to ensure
that pretrial diversion and diversion-based court program activities
are accurately recorded within the Legal Information Office Network
System (LIONS).
Resolved. EOUSA stated that an increased interest in and utilization of
diversion over the last several years supports the need for this
recommendation, which it fully embraces. EOUSA also stated that to
implement this recommendation it will update LIONS to facilitate the tracking
of: (1) those who participate in traditional pretrial diversion; (2) those who
participate in a court-based diversion program; and (3) the outcome of
diversion, including the length of any sentence ultimately imposed, whether it
was imposed as a result of the success or failure of pretrial diversion. This
recommendation can be closed when we receive EOUSA’s procedures that
51


ensure pretrial diversion and diversion-based court program activities are
accurately recorded within LIONS.

52


The Department of Justice Office of the Inspector General
(DOJ OIG) is a statutorily created independent entity
whose mission is to detect and deter waste, fraud,
abuse, and misconduct in the Department of Justice, and
to promote economy and efficiency in the Department’s
operations. Information may be reported to the DOJ
OIG’s hotline at www.justice.gov/oig/hotline or
(800) 869-4499.

Office of the Inspector General
U.S. Department of Justice
www.justice.gov/oig