Rockefeller Judicial Diversion Monitoring Project

Background In April 2009, the New York State legislature passed sweeping legislation reforming the state’s harsh drug sentencing laws. Among the bill’s thirty-three separate provisions, Section 4 established a Judicial Diversion Program (JDP) which went into effect in October 2009. The JDP allows judges to sentence some offenders(1) with substance abuse problems to treatment programs instead of incarceration, and to forego accepting a guilty plea prior to sentencing if it would have harmful collateral consequences on the defendant (e.g., negative immigration implications, affect on housing). Early reports from judges and advocates suggest that implementation of JDP varies widely from county to county throughout the state. From the way that some counties are screening defendants and monitoring their compliance with alternative-to-incarceration programs, to the way that prosecutors are charging people with criminal offenses, we predict that defendants across the state will have varied experiences with judicial diversion.

NYCLU is interested in collecting data to determine how the state is implementing section 4 of the reform law. We plan to collect both quantitative and qualitative data from stakeholders across the state in order to do this analysis. We will work with defense attorneys from five counties to collect data from the cases that come before them, and to determine how many defendants are diverted to treatment under Section 4 of the reform law. We will also interview judges, prosecutors, defense attorneys, treatment providers, and advocates to learn how counties are structuring their implementation of the reform: what courtrooms/judges are assigned to cases that are deemed facially eligible for diversion, what processes have those judges developed for screening potentially eligible defendants, are judges taking collateral consequences into consideration in fashioning pleas and how are they doing that, how are judges determining what constitutes a violation of JDP, and finally, what sanctions are being imposed for violations of the JDP.

NYCLU will begin this monitoring work on January 1, 2010 with the implementation of a screening form (read the instructions here) in five criminal defense offices across the state. Simultaneously, we will be conducting interviews with stakeholders for six months. We will then collect the data from our criminal defense partners and produce a short (25-30 pp) narrative explanation of the processes, the data, which will conclude with an analysis about whether county-level implementation of the JDP section of the Rockefeller reform law is consistent with the legislative intent.


(1) Defendants must first be charged with B-level drug-related felonies or parole-eligible offenses or below; in addition, some defendants are disqualified from participation in JDP due to aspects of their criminal histories. Those defendants who meet initial eligibility criteria are screened for substance abuse disorders, and then evaluated for appropriateness for diversion. Both the prosecutor and the defendant have the right to appeal the judge’s decision on diversion. Compliance with JDP and sanctions for noncompliance are left to the discretion of the judge.

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