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John was frightened when a police officer pulled him over in November 2018 for a burned out tail light and found drugs in his car. It was the first time he'd been caught since he started using drugs two or three years ago. 

"It was panic mode instantly" at the thought of being convicted on a felony, the 43-year-old said. "Everything was shooting through my head: losing my job, losing my house, losing my ability to support my family, anger with the officer."

But if all goes according to plan, he won't be convicted of drug possession and ingestion even though he was found with drugs and tested positive in jail. He'll avoid being labeled a felon, which can make it difficult to obtain a job, housing and financial aid, and can bar you from owning a gun, voting and serving on a jury.

Instead of being prosecuted in court, John was accepted into the adult diversion program at the Pennington County State's Attorney Office, which is open to people with no or little criminal history. If participants stay out of trouble for a year and complete tasks to improve their behavior and life, the charge and arrest will be expunged so they avoid being sucked into the criminal justice system, which can be hard to escape and impact not just defendants but entire families and communities. 

"The whole idea is they've changed their behavior, they've become a productive member of society. We want them to be able to go out and work and be productive and not be forced back in" to the criminal justice system, said Diversion Coordinator Marty Krause.

Eric Whitcher, a Pennington County public defender, said his office is entirely on board with the "terrific" program. 

"People make mistakes and bad choices, especially when they are young," he said. Diversion allows "for the acceptance of responsibility for the choices made, without the lifelong consequences of a criminal conviction."

"It's really a second chance to make my life not go down the tubes," said John (the Journal is using a pseudonym to protect his identity).

Customized program

Diversion is hard work, said Krause.

"They have to want to do this," he said. "The underlying premise to this is it is harder than pleading guilty. They will have more to do in this program than if they walked into court and pleaded guilty." 

Krause says the program is working so far: 900 people have been referred to diversion, 80 percent of those who join complete their requirements and 84 percent aren't arrested within a year. Participants are tracked for five years so Krause can study the longer-term recidivism rate.

Most participants are referred to the program by their defense lawyer during the initial court appearance, Krause said. But sometimes police officers will call him right after arresting someone they think would be a good fit for the program. 

After a referral, staff conducts an FBI background check to see if the person has a limited criminal history and if that's the case, they go through a one- to three-hour intake appointment to determine what they're struggling with, what resources and support they have, and what kind of help they need.

Next, participants write a letter explaining the crime they committed, why they did it, and how being convicted would impact their life. Writing this down helps participants think about why they did what they did and can also be used to help convict them if they don't follow through with the program, Krause said. 

"That's kind of the teeth of the program, that's how we hold them accountable essentially," said Adam Shiffermiller, the deputy state's attorney who oversees diversion.

After participants write the letter, sign a legal agreement and pay any restitution, Krause said, prosecutors drop the participant's charges. If they complete their customized program within three to four months and don't break laws for a year, their record and arrest are erased. 

"What they do is completely individualized to them" and their needs, Krause said. 

Someone with a job who tried drugs a few times may have to undergo a drug evaluation and do community service while someone who uses drugs everyday and doesn't have a job or high school degree may have to undergo treatment, find employment and obtain a GED, he said.

John, who will complete his requirements in a week or two, said he completed a treatment program that made him realize that stress, especially about being in debt, triggered his drug use. So in addition to completing treatment, he had to be regularly drug tested, read a book about debt, and make a debt-repayment plan.

"I actually feel like I have a plan in place, and I feel like I'll be able to attack it and get this burden off my back," he said.

"It's not cookie cutter," that's why it's a successful program, Shiffermiller said. "We get people involved in things that they're interested in, we get people involved in ways that they can better their lives. So, it's not just here's your charge, do 10 hours of community service, go on your way."

Program expansion

While juvenile diversion has existed in Pennington County for many years, adult diversion was created in January 2016 by State's Attorney Mark Vargo. It was overseen by the supervisor of the misdemeanor division and only accepted young adults (18- to 25-year-olds) charged with petty theft or possessing two ounces or less of marijuana. 

Krause was hired in September 2016 with seed money from the MacArthur Foundation's Safety and Justice Challenge, a program the county is participating in to address racial and economic inequality within the criminal justice system and reduce its jail population. Once he came on board, Krause began accepting young adults charged with other non-violent misdemeanors. 

"The young adult (program) was really based around the brain science," Krause said. "The science shows that a person's brain is not fully developed into an adult brain until they're 25" or as old as 30. 

Around March 2017, Krause began accepting young adults charged with low-level, non-violent felonies. And two months ago, he expanded the program to adults of any age.

The program sees people arrested for crimes ranging from property destruction to trespassing to embezzlement to drug possession, Shiffermiller said. But it's off limits to those arrested for DUIs or crimes related to heroin and meth.

Those people may be eligible for DUI, drug or another speciality court, and heroin and meth users may qualify for the new drug diversion program, which recently accepted a few participants. 

The drug diversion program will allow for the longer-term treatment needed for people using those more addictive drugs, Shiffermiller said. Right now, he said, many people arrested for meth end up returning to court over and over again for more meth charges. The goal of drug diversion will be to catch people when they begin using and help them become sober so they avoid being caught in the criminal justice system. 

"If every person that went to prison on a meth case came out of prison and never used meth again, perfect, then we would do that," Shiffermiller said. "But we know that that doesn't work, so we have to think of other ways of fighting meth addiction because right now it's not working."

Like the regular diversion program, the drug diversion program will at first be supported with money from the Safety and Justice Challenge before it's funded by the Pennington County State's Attorney Office to ensure continuity. 

While John was at first angry with the officer who caught him with drugs, he now feels thankful he was pulled over that day.

The arrest and diversion program "changed my life" and I'm saving money and spending more time with my family, he said. "It's got me on a track where I think I'll have a lot better life."

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— Contact Arielle Zionts at arielle.zionts@rapidcityjournal.com

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