Rhode Island’s New Diversion Program

By Ivy Scott

The Adult Drug Court currently receives a majority of the cases pertaining to opioid abuse in Rhode Island. However, a new partnership between the Superior Court and the Attorney General’s office presents another alternative to sentencing for less-serious addicts and infrequent users who face criminal charges: The Rhode Island Diversion Program.

Instead of incarceration or probation, the diversion program offers restitution, community service and counseling for a wide range of felony offenses. Its inclusion of drug-related charges has the potential to help hundreds of illegal opioid users.

The program is not just for first-time offenders. Anyone charged with a nonviolent felony offense can apply to the diversion program as long as they have no more than two prior felony convictions on their record from the past five years. Now part of the Superior Court’s pretrial services, the new initiative aims to conserve judicial resources and divert low-level felony offenders out of the criminal justice system by dismissing their cases if they successfully complete the year-long program.

“My Drug Unit men and women are carrying 200 cases. If 120 of them are simple possession cases, that means they can't go after the serious narcotics traffickers that are really driving some of our opioid problems,” explained state Attorney General Peter F. Neronha, a former US Attorney in Rhode Island with experience prosecuting major drug traffickers. “The sooner we can get some people out of the system, the better. This program helps individuals get back where they need to be, and makes us a more efficient, effective office.”

While the Attorney General’s Office has operated its own diversion program for nearly 45 years, a law signed by Governor Gina Raimondo in the summer of 2019 authorized a remodeling of the initiative in collaboration with the Superior Court. Launched in January 2020 by Neronha and Presiding Justice Alice B. Gibney, the program had already accepted over 100 people into the program by March, with 410 active participants as of December. Of the 1,115 cases that the Attorney General’s office referred to the program over the past year, 44% of those cases (505) included an underlying drug offense. Though statistics on active participants are not readily accessible, Special Magistrate Patrick T. Burke estimated that approximately 70% of people accepted into the program were charged with a drug-related crime.
“We have a lot of drug cases come to us,” he said, most often “first offenders.”

Assistant Attorney General Susan Urso, who leads the Intake Unit at the attorney general’s office, offered a similar estimate on the number of drug offenders in the program.

“Over half, easily. Probably more like three-quarters,” said Urso, but clarified that the list of eligible drug charges includes more than just opioids. “There are some that will come in with fentanyl, heroin, pills. A lot of times people are found in cars with pills that aren’t theirs, trying to self-medicate. But there’s also cocaine and crack-cocaine. It’s a mix.”

The remodeling of the program was prompted by concerns that an initiative run solely through the Department of Attorney General wasn’t reaching enough people, since for years AG personnel were the only ones permitted to refer someone into the program. With the new initiative, however, people are being referred by judges or defense attorneys as early as the defendant’s arraignment in court.

“People that get a letter from the attorney general's office usually don't respond to it, but with the courts, they're responding,” said Burke, who runs the new diversion program with Superior Court Judge Maureen Keough, who was an assistant attorney general herself until she was appointed to the bench in 2016. “We’re getting more participation with lawyers involved, especially in the Public Defender's office,” Burke added, emphasizing that expanding the program’s network to include defense lawyers has made a significant difference.
“They reach out to the defendant and ask them, ‘Here's an opportunity. Are you interested in it?’”

Another major difference between the old program and the current one is the criteria for eligibility. What used to be an exhaustive list of conditions that prevented dozens of defendants from gaining access to rehabilitation services has become a far more accessible and holistic evaluation process.

“It would’ve been easier to get a camel through the eye of a needle than to get into that program,” admitted Neronha about the old diversion program run by his office, pointing to the restrictive admissions criteria that once barred many potential candidates from participating.

“If you had two or more misdemeanors, you could not get into the program,” said Burke. “If you had a felony charge on your record, you could not get in. Even if the case was dismissed eventually, you couldn't get in.”

Superior Court officials are still working with Neronha’s office to update eligibility criteria, but already the changes have created opportunities for dozens of people who could have faced prison time even a year or two ago.

“If you were a student at Brown or URI or PC and you sold a joint to another student, you were a drug dealer and you couldn't get in the program,” Neronha explained. “But to me, this program is perfect for that sort of low-level nonviolent criminal offense.”

Urso added that when it comes to drug charges, the main factor that determines whether someone is referred to Drug Court or the diversion program is the severity of their substance abuse.

“Drug Court we look at for someone that has a more serious drug addiction and needs more intensive treatment. The court staff will send them out to do a drug assessment and to see what the issues are,” she explained. “We had a case that came into the diversion court and he'd already been in treatment with a substance abuse problem. So we all determined that diversion wasn't really the program for him. He needed a little higher supervision, so we referred him to Drug Court.”

Unlike Drug Court, which until a few years ago relied on several federal grants to acquire the funds to support participants, the diversion program so far hasn’t encountered any major financial obstacles. And unlike certain diversion programs in other states—Florida, Louisiana and Indiana among them—the Rhode Island initiative charges no fee to participate. Instead, case workers seek out low-cost or free alternatives to essential services like substance abuse treatment.

“One, we try to get them insurance. Or two, we try to reach out to providers to see if there's any state-sponsored beds, so we can send people that don't have insurance there,” said Burke. “We have a connection with the Department of Labor and Training so that if you need some job training, we might be able to send you to training so you can get a job. We try to steer people in the right direction.”

The diversion program involves fewer court dates and less supervision from a judge than Drug Court, though regular contact with a case manager is still required.

“They come in, they sign an agreement, and then I usually kick it out like 60 days,” explained Burke, adding that he schedules meetings more frequently if it seems like the person is struggling. “They have a case manager who they have to keep in contact with, either weekly phone calls or every couple of weeks to make sure they're doing what they're supposed to do. If they stray, then they come in front of me and I have a talk with them, try to get them on the right track.”

The diversion program also tries to model the patience and flexibility that Drug Court offers its participants.

“I haven't tossed anybody yet!” said Burke, adding that he believes firmly in the tough love approach to rehabilitation— with emphasis on the love.

“I’m big on encouragement. Most people that come through, they've been getting yelled at all their lives. Either by their parents, their teachers, the police, everybody. So sometimes if you give them a pat on the back, they appreciate it. That's my philosophy, anyway.”