Diversion Options / PTI

Pre-Trial Intervention (PTI) is used in certain instances to help defendants who have not committed any other crimes in the past become “rehabilitated” and to establish a good reputation once again. This program is like being on probation without being convicted of a crime. In Essex County, applications by defendants for PTI are reviewed by a paralegal assigned to the Prosecutor’s Office PTI Section. The Director of the Section then reviews each file for completeness and PTI appropriateness and makes a recommended disposition to the supervising Executive Assistant Prosecutor. The Executive Assistant Prosecutor is responsible for final decisions on PTI applications. Rejection letters are prepared by the paralegal and reviewed by the Director who also handles PTI appeals at the trial level.

The PTI Section is currently staffed by a Director, two paralegals, and two clericals. The unit also handles applications for expungements of criminal records. All petitions for expungement are reviewed by a paralegal, who also obtains all necessary information to verify the statements in the petition. The Director reviews each file as well as the proposed orders.

In order to streamline operations, PTI decisions in cases involving charges of sexual assault, child abuse, arson, and domestic violence are made by the directors of those designated sections. In the past, the directors of these units offered recommendations but the final decision was made by the Director of PTI and the Executive Assistant Prosecutor who supervises PTI matters. If PTI applications are received with inadequate time to make decisions before the next court date, the courts are notified of what has occurred and are requested to grant additional time so that an informed determination can be made.

The Essex County PTI Section assigns a paralegal to perform extensive research, from numerous sources such as municipal courts, the computer system, and old archived file cards, to obtain the necessary information in expungement matters. As for significant crime problems, the most prevalent in terms of PTI applications are receiving stolen property (stolen cars) and CDS cases (usually cocaine or heroin, with fewer involving marijuana, and a few involving Ecstasy). Attempts are made to tailor conditions of PTI to the individual applicant to maximize his/her potential for rehabilitation. This involves standard requirements such as obtaining a GED, or attending CDS rehabilitation-as well as, in appropriate cases, requiring a defendant to pay (even non-court-ordered) child support, or meet other obligations.

Recovery Court (formerly known as “Drug Court”)

The Essex County Recovery Court is a unique court for non-violent drug-dependent offenders who are identified through a screening process as being most likely to benefit from treatment and not likely to pose a risk to public safety. The Recovery Court functions within the existing Superior Court structure but links the criminal justice system with drug treatment and rehabilitation services. Its purpose is to break the cycle of addiction and recidivism among non-violent drug offenders. Offenders receive intensive supervision and swift sanctions for non-compliance as they undergo treatment and counseling for their drug and alcohol addictions. Public safety issues are served by closely monitoring each defendant with probation officers who operate under the model of Intensive Supervision of Parolees. The program involves a team approach on the part of judges, court staff, attorneys, probation officers, substance abuse evaluators, and treatment counselors, all of whom work together to support and monitor a participant’s recovery.

The Essex County Recovery Court was started in 1999 with the assistance of federal planning and implementation grants. Other counties have adopted similar programs, including Camden, Mercer, Union, and Ocean Counties. In June 2000, the state Judicial Council cited drug courts as a “Best Practice” and called for comprehensive statewide implementation. Early studies indicate that drug courts reduce recidivism and drug abuse while providing significant cost savings to the public from reduced incarceration costs.

The Essex County Recovery Court team continually monitors offender progress to define parameters of behavior that allow continued program participation and suggests effective sanctions and incentives for program compliance. Team members are knowledgeable about addiction, alcoholism, and pharmacology and apply that knowledge to respond to compliance in a therapeutically appropriate manner. The team continually educates the community, civic and social organizations, and the judiciary regarding the efficacy of drug courts.

The Essex County Prosecutor’s Office is obviously a key member of the Recovery Court team. The Assistant Prosecutor/Director responsible for Recovery Court ensures community safety concerns by maintaining eligibility standards for the admission of offenders into the Recovery Court program. The Director is assisted by various Assistant Prosecutors for Recovery Court pleas, violations of probation, sanctions, and sentencing.

Mental Health Diversion

The Essex County Prosecutors Office Mental Health Diversion Program (ECPO MHDP) is a prosecutor’s lead diversion program that was established in 2012. It aims to tackle the issues surrounding individuals with mental illness involved in the criminal justice system by addressing both the treatment needs of the defendants and the public safety concerns of the community.  The Program diverts defendants with serious and persistent mental illnesses (such as schizophrenia and bipolar disorder) from incarceration, links them with community-based treatment as an alternative, and monitors their compliance and progress.

Legal Appropriateness:  All cases are reviewed on a case-by-case basis by an ECPO assistant prosecutor(s) (AP or APs)

• There must be some preliminary proof of serious and persistent mental illness
• The nature of the offense must not be one where ECPO determines that the value of diversionary treatment is outweighed by the public need for traditional prosecution
• Defendants must be an Essex County Resident and have committed a crime in Essex County
• Charges should be non-violent (but will consider some violent offenses on a case-by-case basis)
• Charges should be 3^rd and 4^th degree in nature (but will consider some 2^nd degree offenses on a case-by-case basis)
• We do not accept offenders charged with firearms, sexual crimes (past or present), or arson related offenses
• We do not accept offenders with significant criminal histories
• We do not accept offenders with open co-defendants

Clinical Appropriateness: If a defendant is determined to be legally appropriate for diversion through the Program, the defendant will undergo an interview and psychosocial evaluation by an impartial Licensed Clinical Social Worker (LCSW) from the Essex County Hospital Center to determine clinical appropriateness.  All additional medical records thought to be useful can be forwarded to this clinician by the defense upon scheduling the interview. The Clinician will determine if the applicant is clinically appropriate and if so, the level of care the defendant needs to be part of the program.

• Clinician must confirm diagnosis of a serious and persistent mental illness such as Schizophrenia, Bipolar, Major Depression, etc.
• Clinician must find a nexus between mental illness and the criminal justice involvement
• Participant may have co-occurring conditions such as substance abuse issues, intellectual disabilities, developmental disabilities, or traumatic brain injury, however major mental illness must be the primary issue
• A finding of certain predominate personality disorders may be exclusionary

Community Appropriateness/Case Management Appropriateness:  If a defendant is determined to be clinically appropriate for diversion through the Program, the defendant must then be found to be community appropriate by the Clinician and Case Manager from ECHC.

• Defendant must be willing and able to comply with medication, therapy, random urinalysis, frequent court reporting and consistent contact with their case manager(s)
• Defendant must not have a significant history of failure to comply treatment
• Appropriate and available Community based resources within the recommended level of care must exist

Goals: The Program goals are to:

• Help bridge the gap between the mental health community and the criminal justice system
• Improve public safety by reducing recidivism of offenders with mental illness
• Link and engage defendants with mental illness to clinically recommended mental health treatment
• Link defendants to appropriate community supports and social benefits/entitlements
• Address concomitant issues of substance abuse, homelessness, joblessness, lack of education
• Help reintegrate this population of defendants into functioning members of society
• Hold participants accountable for their actions

Implementation of Goals:

• Comprehensive clinical assessment will allow for the creation of an individualized treatment plan
• Frequent Court appearances and status report updates will hold defendant responsible and ensure engagement with the legal process

Application Process: The defendant (usually with the assistance of his attorney) must complete an application to be considered a participant in this program.

Legal Eligibility:  Defense attorneys fill out an application form, referral form, and submit proof of diagnosis via medical documentation to the designated Assistant Prosecutor and Executive Prosecutor (APs) representing the Essex County Prosecutors Office (ECPO).  The APs look at facts of case, criminal history, contact any victims, review any accompanying violations of probation (VOP) and determine if an applicant is legally eligible to move to clinical phase.  If denied, the ECPO will send a letter via email as to reasons for rejection. There is no appeal process available.

Clinical Eligibility: The Essex County Hospital Center (ECHC) has a designated clinician (Clinician) who evaluates applicants for admission.  (See below Clinician description) Once defense counsel receives a legal acceptance from the ECPO, counsel will email any additional psychiatric records in their possession to the Clinician, including records from the Essex County Correctional Facility.  After reviewing the records, the Clinician meets with the applicant and will recommend acceptance or rejection to the ECPO.

Track/Offer: If an applicant is found clinically acceptable, the ECPO will negotiate with defense counsel should a guilty plea or restitution be required.  Clients who do not find the plea offer acceptable are free to withdraw from the application process at this time.

If acceptance is recommended, an abbreviated biopsychosocial report is generated and provided to APs and defense counsel with a nondisclosure agreement.  The Applicant, now Participant, will meet with a Case Manager to design a Community Action Plan (CAP) which will detail what community provider will serve the clients therapeutic needs, their level of care, and identifiable goals.  Once the data collected from the meeting is typed up into a formal document (CAP), the client will review it, and their signature will signify that they accept all conditions outlined therein.  The signature date on the CAP will be used as the official date of acceptance should the plea date and/or order of acceptance not be executed on the same date.

The participant enters a guilty plea or an Order of Acceptance under oath and in Court.  Prior to the Order of Acceptance or entry of a guilty plea, the Judge is given a copy of the biopsychosocial report.

Any Participant who enters a guilty plea will be supervised by a designated, specially trained Mental Health Probation Officer.

Track Overview: Defendants are entered on one of the following bases as determined by ECPO.

Track One (1) (Complete Diversion): Track 1’s goal is for the defendant to avoid a conviction. The defendant is accepted while his/her case remains open and is required to check-in with the court bi-weekly.  The case is adjourned bi-weekly on average and then monthly or longer, in order to ensure that the defendant is complying with the terms of participation.  Necessary additions, deletions, or modifications to the treatment plan will be made accordance with defendant’s treatment provider(s) and case manager(s). The term of review of defendant’s compliance with Program conditions is approximately one [1] to two [2] years. Once the defendant has shown consistent and successful compliance with his/her treatment plan and court reporting, the State will move to dismiss the charges.  Failure to comply with terms of participation will result in termination as determined by ECPO, and the defendant’s case will be returned for traditional prosecution.

Track Two (2) (Custodial Sentence Recommendation Amended to Non-Custodial Probation): Track 2’s goal is for the defendant to avoid a county jail or state prison sentence. The defendant is to plead guilty to any or all charges, and to plead guilty to said charges on their face or as amended or downgraded. In return for a defendant’s plea of guilty, the State will recommend a term of non-custodial mental health probation which includes, as a condition of probation, that the defendant comply with the comprehensive treatment plan, as well as an alternative custodial term to be recommended should the defendant be unable to comply with the terms of the program.  The defendant will be noticed to return to Court on a bi-weekly and then monthly or longer basis, in order to ensure that the defendant is complying with the terms of participation.  Necessary additions, deletions, or modifications to the treatment plan will be made in accordance with defendant’s treatment provider(s) and case manager(s).  The term of review of defendant’s compliance with Program conditions is approximately one [1] to two [2] years. If defendant shows consistent and successful compliance with his/her treatment plan and court reporting, the State will move the defendant on from the program, and any additional term of probation will continue. Should defendant fail to comply with terms of the plea pending sentence, the State may move to withdraw the plea and the defendant’s case will be returned for traditional prosecution.  Failure to comply with terms of participation may result in termination as determined by ECPO, and the defendant may be subject to a Violation of Probation.

Violations of Probation: Failure to comply with these requirements will result in graduated sanctions which may include additional AA/NA community meetings, essay writing and oral presentation of same, increased court appearances, community service, short jail sanctions, termination from the program and re-sentencing to alternative pleas.

The following forms for the ECPO Mental Health Diversion Program can be downloaded and printed.

APPLICATION TO PARTICIPATE

REFERRAL FORM

The Veterans Diversion Program (VDP) was established in 2017 by N.J.S.A. 2C:43-26b.  This program offers eligible service members with a mental illness the opportunity to participate in a diversion program to receive help with their illness and not be incarcerated. To receive assistance the service member must be charged with a non-violent offense from a crime of the fourth or third degree.   (The ECPO on a case-by-case basis will review crimes of the 2^nd degree to determine if the service member may be eligible to participate in the ECPO MHDP.) The Essex County Veterans Diversion Program is incorporated into the Essex County Prosecutor’s Office Mental Health Diversion Program.   (Please see ECPO’s Mental Health Program, above).