The Restorative Justice and Diversion Program: Colorado 20th Judicial District Attorney’s Office (Boulder County, Colorado)

“One of the reasons I love being a prosecutor is that we’re in the position to say ‘yes’ to help someone get to a better place. It speaks to what we’ve created here in the office that we’re in that position.”

—District Attorney Michael Dougherty

The Restorative Justice and Diversion Program in the District Attorney’s Office for Colorado’s 20th Judicial District (Boulder County) is an “in-house” program, meaning it is internally staffed and managed within the District Attorney’s Office through its Center for Prevention and Restorative Justice (CPRJ). It pairs supervision and service provision with restorative justice,[1] which operate as separate and parallel arms of the diversion model. The Restorative Justice and Diversion Program is just one of a range of diversion programs that the office operates.

This case study, which is part of the Mapping Prosecutor-Led Diversion Project, centers on the program’s in-house model and two-arm diversion approach, highlighting takeaways for other prosecutors looking to launch similar programs. The information included is based on the office’s submitted response to the Mapping Prosecutor-Led Diversion Project survey and interviews with program leadership and staff. This case study is intended as an overview of this diversion strategy and is not an assessment or evaluation.

[1] Restorative justice is a theory of justice that prioritizes repairing harm. Restorative justice is based on the beliefs that crime causes harm, repairing harm should be the focus of the justice effort, and that people most closely impacted by crime should share in how it is resolved.

The Restorative Justice and Diversion Program

Boulder’s restorative justice diversion model began with a pilot program. It was one of the pilot sites established in 2013 through state legislation to expand the use of pre-file restorative justice diversion for youth. Over the next five years, the District Attorney’s Office grew the model from a small, youth-focused program with limited eligibility criteria into a more robust program. Now, the program serves people of all ages, though its main goal is to divert youth and emerging adults (ages 18 to 24). Its staff report that more than half of all juvenile cases are diverted through the CPRJ each year. According to data from the District Attorney’s Office, 92 percent of people referred to the program successfully complete it and have their cases dismissed.

Prosecutors are responsible for referring cases to diversion, but often do so with input from diversion staff on whether the case is a good fit for the program or another diversion option. Eligibility for the restorative justice diversion program is broad and includes offenses ranging from low-level theft to felonies. Some serious and violent offenses are excluded from diversion by statute, and others, like domestic violence and sex offense cases, are specifically excluded from restorative justice

diversion because of the special expertise required to handle such cases through a restorative process. In other cases, such as those where family dynamics or mental health needs are significant factors, program staff may determine that a therapeutic intervention is more appropriate than a restorative process.

Although many diversion cases are pre-file, cases can be diverted post-file at any time before the person charged enters a plea. Prosecutors begin by offering the responsible party the option of diversion, and if they accept, diversion coordinators within the District Attorney’s Office then work with the person to establish their diversion requirements. Once the person completes them, the diversion coordinator files a motion to dismiss their case.

A Two-Arm Model: Risk Reduction and Restorative Practices

The program model operates along two parallel arms. The first, focused on supervision and service provision, tailors the level of supervision to the participant and charges. Supervised diversion is for greater-harm offenses and higher-risk participants, uses assessments or screeners to determine a person’s risks and needs, and develops an individualized case plan that matches participants with community-based services such as counseling; unsupervised diversion provides case management for lower-level offenses and connects lower-risk participants with community-based screenings and educational classes.

The second arm, centered on accountability and harm repair, requires participants to address the harm they have caused. For many, this means engaging in a restorative conference with the people affected by their crime, or for very low-level cases, participating in a restorative conversation. While the restorative process focuses on addressing that particular event, the responsible party carries out a diversion plan designed to address the underlying factors that may have contributed to it. Staff say that an early lesson of program implementation was that although restorative justice was highly effective for addressing and repairing harm, participants often needed other supportive services to fully address the risks and needs that led to the crime.

The two arms are separate by design. By addressing a person’s risks and needs outside of the restorative process, the program ensures the restorative conference remains focused on the crime and its impact. The agreement is therefore about repairing harm to those who have been affected rather than addressing the underlying needs of the responsible party. Program staff noted that people who have been victimized often find it reassuring to know the diversion plan is already addressing the risks and needs that may have led the person to commit the crime.

Although many of the District Attorney’s Office’s diversion programs require participants to address and repair the harm they have caused in some way, those programs do not require that they do so through a restorative process. Choosing to participate in a restorative conference does not benefit a person’s case, and people do not face a penalty for declining. Still, many choose to participate. Program staff believe this ensures participation is truly voluntary and based on a desire to demonstrate accountability and to repair harm, and for that reason, staff have seen greater buy-in from people who have been victimized. It also means that the participant’s diversion isn’t negatively affected if the person they’ve harmed declines to participate in a restorative conference.

An In-House Restorative Justice Model

In Boulder, restorative conferences are led by an in-house team of staff and volunteer facilitators, who are trained based on statewide standards for restorative justice facilitators. Much of their work happens before the conference, including gathering necessary information from all participants and preparing them during pre-conferences. Facilitators agreed that ample preparation to ensure participants go in with clear expectations is key to the success of restorative conferences.

Although the District Attorney’s Office initially referred participants to community restorative justice providers for restorative conferences, the program shifted to managing restorative conferences in house in 2016. Program leadership explained that this choice was based on their assessment that local community organizations varied in the ways they facilitated restorative conferences. They also hoped to minimize the number of separate providers participants needed to work with. By designing their own program, program leadership felt they could ensure the restorative process would be trauma informed, culturally responsive, and centered on people who have been victimized. They also felt the District Attorney’s Office was well positioned to lead this process because it was already managing participants’ case plans, including addressing needs identified through a validated assessment. Managing the conferences in house also gave the office more control and enabled staff to monitor fidelity to their specific diversion model, such as ensuring restorative agreements were driven by participants and didn’t assign therapeutic interventions that might be mismatched to the person’s needs. Because they manage their own volunteer team, the office can train volunteers on the specifics of the Boulder County District Attorney’s Office and its diversion model, such as how the office handles restitution. With these priorities in mind, the office partnered with implementation scientists during the pilot to establish program goals and develop the in-house model and two-arm approach. Since then, the office has found that another benefit of handling everything in house is the ability to access all program data without needing to request them from external providers. Staff also say they believe prosecutors may be more inclined to buy in to the program because it is managed internally. This could also bolster the program’s credibility among other agencies in the criminal legal system, like local police.

The CPRJ has also experienced the pitfalls of running an in-house restorative justice program. A frequent critique of programs like Boulder County’s is that restorative justice, which prioritizes repair over punishment, is fundamentally at odds with the traditional adversarial system of prosecution and therefore should not be overseen by a prosecutor’s office. CPRJ leadership acknowledged this concern and said they are aware that there are limits to what their program can do, since it takes place after law enforcement contact has already occurred. They also recognized the importance of building up other prevention strategies at every stage of the legal system to divert people before they reach the District Attorney’s Office.

The following lessons were informed by observations from District Attorney’s Office leadership and staff:

• Restorative justice diversion programs focused on low-level offenses run the risk of net widening. During the program’s pilot phase, many cases accepted for restorative justice diversion involved low-level offenses and people with low levels of risk and need, and many did not involve individual victims (e.g., retail theft). The CPRJ team found that using a full restorative justice conference for these cases was seldom necessary or helpful and actually increased contact between the district attorney and people charged with low-level crimes. They found that less formal restorative practices, such as restorative conversations, were more effective in these lower-level cases. The “overresponse” of a full restorative justice conference also used resources that could have been applied to higher-level diversion cases. Following the pilot, program leadership broadened eligibility criteria to include more serious offenses.
• Confidentiality is essential to any restorative justice process, especially when housed within a prosecutor’s office. Rigorous confidentiality measures are key to creating a sense of safety for participants so that they can share openly during a restorative conference. CPRJ staff insisted that any information shared during the pre-conference or restorative process is held confidential and can’t be used in future court cases. Participants sign a confidentiality agreement, and, with certain exceptions, the District Attorney’s Office has committed to not using this information to prosecute additional crimes or codefendants. Exceptions may be made if participants disclose information that staff are mandated to report, or information about victims of other crimes who may need supportive services.
• The success of a restorative justice diversion program depends on an active volunteer base, and it can be difficult to recruit a diverse pool of volunteers. Because Boulder is a fairly homogeneous, wealthy city with a high wage gap and racial and ethnic disparities, the CPRJ has found it challenging to recruit diverse volunteers and has undertaken significant efforts to recruit volunteers who represent the communities most affected by the legal system and involved in diversion programming.
• The support and active involvement of the district attorney are key to the program’s success. District Attorney Michael Dougherty is well known in the Boulder community and is a champion of the CPRJ. His frequent engagement with the community likely bolsters public awareness and support of his office’s diversion programming. CPRJ leadership also noted that he has empowered them to develop expertise on what works in restorative justice diversion and to create a data-driven model.
• Even with strong support from the district attorney, building buy-in among line prosecutors can be an ongoing challenge. Turnover in Boulder’s District Attorney’s Office has also made it difficult to keep prosecutors informed about the program and to ensure they understand the referral process. Although many district attorneys are increasingly familiar with restorative justice and the harms of legal system involvement and are interested in rehabilitation, others are skeptical about restorative approaches. To improve buy-in, the diversion team holds regular trainings on diversion and restorative justice with all prosecutors in the office. CPRJ staff also noted the importance of ongoing communication with district attorneys about the program, including sharing data on its effectiveness. Many district attorneys have come to appreciate that restorative justice offers victims an opportunity to heal.
• What works in one jurisdiction may not work in others, and Boulder’s model may not be easily replicated elsewhere. Some aspects of the CPRJ’s setting in Boulder are critical components of the diversion program’s success and may not be universal. At the state level, restorative justice has long been a priority among lawmakers, and Colorado has more robust statutory support for restorative justice than any other state; as of 2019, half of Colorado’s district attorney’s offices reported offering restorative justice programming of some kind, and more than 50 percent of those included an in-house component.[1] Still, even jurisdictions across Colorado vary widely in their diversion philosophies and local resources, such as the availability of community-based organizations that can serve as program partners. CPRJ staff noted that Boulder County is unique in many ways, including being a community that is highly educated and invested in diversion and restorative justice broadly. Because restorative justice has existed in various forms in Boulder for so long, community buy-in is high and a substantial pool of volunteers is available; in fact, these volunteer roles are sought-after positions. Nonetheless, CPRJ leadership believed many elements of their program can be replicated. They have shared program resources (e.g., referral forms, training materials, and policies) with other jurisdictions looking to create similar diversion programs and regularly provide trainings on restorative justice basics and facilitation for jurisdictions in and outside Colorado.

[1] “State of the State: Restorative Justice in Colorado,” Restorative Justice on the Rise, August 14, 2019, https://restorativejusticeontherise.org/state-of-the-state-restorative-justice-in-colorado.Restorative Justice in Colorado,” Restorative Justice on the Rise.