The Young Adult Diversion Program: Pennington County State’s Attorney’s Office (Pennington County, South Dakota)

“One of our principles is: diversion is going to take more effort than pleading guilty. The idea is not that there’s no consequences, it’s that the aim of those consequences is to leave you in a better spot than where you started.”

—State’s Attorney Mark Vargo

The Young Adult Diversion Program in the State’s Attorney’s Office for South Dakota’s Pennington County provides interventions to people in the community with the goal of getting better results for the individual and the public. It uses an individualized approach to each case that is aimed at understanding the reasons why the person engaged in the behavior that led to a case being filed. Leadership and program staff devote many hours to building and finding community support to provide services for participants. Since the initial pilot program, diversion programs have grown in the office, and it now has four programs, each with its own focus: young adult diversion, adult diversion, drug diversion, and domestic violence diversion.

This case study, which is part of the Mapping Prosecutor-Led Diversion Project, centers on the Young Adult Diversion Program’s individualized approach to diversion and the networked approach its leadership and program staff have used to build its capacity and scope, 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, staff, and partners. This case study is intended as an overview of this diversion strategy and is not an assessment or evaluation.

The Young Adult Diversion Program

Pennington County’s Young Adult Diversion Program started in 2016, after State’s Attorney Mark Vargo attended a conference and used the opportunity to brainstorm with then–Manhattan District Attorney Cyrus Vance about how to get better results. In Vargo’s opinion, increased formality in the prosecutorial approach and the growing number of people affected by the legal system had resulted in considerable negative collateral consequences but not a lot of the benefits of early intervention, like getting people on the right path.

Vargo left the conference with an idea to start a young adult diversion program focused on people ages 18 to 25 charged with marijuana possession or theft. His office started small and saw some immediate success stories. The program was able to show local stakeholders that it was helpful and this in turn enabled the office to hire staff to not only sustain but expand the program. The Young Adult Diversion Program now accepts not only cases related to marijuana and theft, but also other misdemeanors and even some felonies. The Young Adult Diversion Program has no specific eligibility requirements other than age. At this point, roughly 20 percent of cases involving people ages 18 to 25 are referred to the program. Historical success rates show that about 75 percent of those referred for diversion do not have further criminal justice contact within a year. The program completion rate is just under 70 percent, and people who complete the diversion have a recidivism rate of only 16.5 percent.

Referrals for diversion come to the diversion staff within the State’s Attorney’s Office. Referrals mainly come from line prosecutors, but they can also come through law enforcement members, defense attorneys, and even service providers or family members. Diversion program staff review the case, review criminal background checks, and schedule an intake interview. After the interview, the staff decide whether they will recommend diversion. If diversion is recommended, the person can agree or decline to participate. Diversion typically lasts about six months, but the time and conditions for completion are tailored for the individual and the seriousness of the case. If the person completes the conditions of diversion successfully and does not reoffend within a year, the case is dismissed and the records are expunged and sealed.

An Individualized Approach

The Young Adult Diversion Program is characterized by a personal interview with each diversion participant at intake. Program leadership say they want the individual to succeed, so the staff want to hear not just what drove the person to make the specific decisions that led to the charge but also what is going on in the person’s life. The diversion program requirements for each case do not use a one-size-fits-all approach; instead, requirements are based on what the staff determine is needed for a person to succeed. Diversion administrators believe that some people can make the necessary changes within six weeks, whereas others may take four months to a year.

The intake interview is characterized by diversion staff aiming to build a personal connection with the person, to be present with them, and to allow them to talk as much as possible about their life situations. To ensure the intervention is culturally appropriate, the intake interview may include questions about the person’s connections to Native American culture to determine whether participating in tribal diversion programming would be a good fit. Staff also ask about other aspects of the participant’s life that may affect their success in diversion, such as employment, housing, family support, and the use of drugs or alcohol. Staff fill out forms or take notes after the interview, so that the focus can remain on building the relationship. The State’s Attorney’s Office staff believe the strength of their approach is its flexibility. The diversion program staff we interviewed noted that they are focused on trying to meet the person where they are and helping them become the best version of themselves.

Connecting with Community Resources to Build Services and Expand the Program

From the beginning of the program, State’s Attorney Vargo and his diversion staff spent significant time going to community meetings to talk about the approach and getting leads for services in the community. This, along with their existing personal ties to the community, enabled them to build a large network of more than 200 contacts to enable support for services for diversion participants. Partners include organizations that provide drug treatment, workforce assistance, and career learning. The diversion program does not have a large budget. Many of the services it connects participants with are not paid for by the office and are available through the long-standing connections in the community. Leadership in the State’s Attorney’s Office and the diversion program knocked on doors, explaining that they were working with young people in the program and wanted a place for them to work, attend programs, and be engaged. Leadership and staff continue to nurture these connections and establish new ones, attending meetings, following up, and talking about how they can work together. For example, staff members call businesses and organizations to help participants find employment or leads for assistance.

One important example of the program’s networked community partner approach is the tribal referral component. At a community drumming event, the state’s attorney and a tribal member talked extensively about how the State’s Attorney’s Office could work to have a more positive impact on the tribal community, including diverting young people. This meant that when a tribal member went through diversion intake, if the diversion staff felt it was appropriate, the tribal member would be referred to Woyatan Church in Rapid City, where they would go before an Oyate court, which is made up of elders and people in the community. At this point, the State’s Attorney’s Office relinquishes some control over the diversion, as the community court members decide on the requirements of diversion and then report back to the office about whether diversion was completed. At the court, the elders listen to the person’s reasons for being there, what is behind their choices, and what is happening in their life. They come up with a set of actions, called a healing, that the person should undertake to repair their relationship with the community and prevent causing further harm. These can include horse therapy, Inipi sweat lodges, or services like tutoring. The court reports back to the State’s Attorney’s Office when diversion has been completed, and the person’s case is dismissed.

The following lessons learned were informed by observations from State’s Attorney’s Office leadership, staff, and partners:

• Rethink the role of the prosecutor. Pursuing traditional prosecution produces collateral consequences such as more difficulty getting a job, housing, or educational funding; it also may not provide avenues for putting a person in a better position to succeed in life. Pursuing diversion often requires greater effort on the part of the person charged than pleading guilty, and diversion can provide resources and support for a person to get on a path toward success. Think through how prosecutorial office resources can be used to increase the chances a person will not have another crime charge.
• Start small and begin with existing resources. The State’s Attorney’s Office developed an approach that it wanted to try, but it did not have many resources. So, the office started with some cases and tried the approach out based on the values it thought were important and the successes it wanted to see. Because the office started small and focused on keeping things simple, it was able to build on its success and make a case to foundations and the county government for funding to grow the program. This approach also gave the office time to build its networks in the community.
• Continually talk with community members to help them understand the program’s goals and to find services for the program. Leadership in the Pennington County State’s Attorney’s Office invests time into continually renewing their relationships across the community to maintain and extend the support for the diversion program. This allows the office an opportunity to continue to educate community members about the rationale for the program, what it is doing, and what successes it is seeing. Leadership also advised not assuming that all law enforcement members will automatically be on board with the program. Take time to listen to and talk with various law enforcement members as programs are developed to understand where prosecutor diversion fits in with police diversion.
• Think carefully about the trade-offs of higher caseloads and more individualized diversion. Taking the time to develop individualized requirements that match the person is labor intensive and requires experience and expertise. Lower caseloads also allow for more intensive, individualized, and responsive follow-up to help each person achieve success. With more cases, the approach will likely be unable to be as tailored for each case, unless the office also increases capacity.