Pros and Cons of Diversion Agreements

Last month Harold Lyman, a man charged with stealing American Indian artifacts, agreed to a diversion with the U.S. Attorney's Office in Utah.

In a diversion agreement, the prosecutor agrees to dismiss criminal charges against a defendant and the defendant agrees to probation conditions. If the defendant complies with the conditions, the prosecutor has to dismiss the charges and, legally, the case is treated "as if the charge had never been filed."

Diversions are similar to pleas in abeyance in that the charges are eventually dismissed. However, the defendant has to plead guilty or no contest to enter a plea in abeyance. The defendant never pleads guilty as part of a diversion.

Diversions used to be very common in Utah. However, prosecutors have begun to feel that diversions are too generous to the defendant and can make it difficult to prosecute the case if the defendant violates the terms of the diversion agreement. Prosecutors now prefer pleas in abeyance because the charges are still dismissed, but the prosecutor can ask the court to convict defendants who violate the terms of their plea in abeyance agreements without going through a trial because the defendant has already plead guilty.

The conditions of Mr. Lyman's diversion agreement were that (1) he have no new violations of the law, and (2) that he stay away from Indian lands. He did not even have to pay a fine or take any classes.