NH’s adult court diversion can save lives, advocates say, but is offered inconsistently and not tracked

By Jordyn Haime, Granite State News Collaborative

Joshua Deveer doesn’t try to fight his place in life anymore.

“I used to think doing something was everything, and now I’m starting to realize that, maybe not doing something is everything,” says the 23-year-old from outside of a modest North Conway inn, where he pays $600 per month to live. “Maybe restricting my footprint here, making sure that I watch my steps is what’s most important.”

    In July of 2017, Deveer was pulled over by State Trooper Clinton Trussell and arrested on two misdemeanor charges and one violation: operating without a valid license, disobeying a police officer and possessing marijuana.

    According to Carroll County court records, police signaled for Deveer to stop by emergency warning signals, but that he took “evasive action” by turning abruptly, with a signal, behind a building.

    “I said, ‘I didn’t know that I was disobeying an officer, sir.’ And he basically told me that I was under arrest already. ‘Cause I was disobeying him by pulling into a parking lot. And so I should get outta the car and put my hands on my lock box,” Deveer said.

    He says he also was not aware that his license had been under suspension, and that he felt he shouldn’t have had any charges against him at all. Deveer ended up paying over $700 in fines for two of the charges, but for the marijuana charge, he was offered another option.

    With the help of a lawyer, Deveer was able to get the marijuana charge diverted to White Mountain Restorative Justice located in Conway, NH. WMRJ is a non-profit organization offering programs in juvenile court diversion, mediation, adult court diversion, and victim offender mediation. 

    Upon completing a court diversion program with WMRJ, Deveer was able to have the charge expunged from his record. The program, he says, consisted of first admitting guilt, completing course work, and community service at the humane society for a few months.

    “I wanted it dismissed completely. I didn’t want people, you know...thinking any differently of me, but then it got published in the paper. So I moved away from here for a while after that,” he said.

A theory of justice that  can save lives

    Restorative justice is the practice of repairing the harm caused by crimes or offenses and holding the offender accountable for their actions. It also focuses on the causes of crime, rather than taking punitive measures that are likely to cause recidivism. And as calls for criminal justice reform and police abolition have continued alongside protests throughout 2020, many activists are looking to restorative justice as a solution to the country’s policing and mass incarceration problems.

    Diversion for adults often happens pre-conviction, and – unlike New Hampshire’s drug courts and mental health courts – if an offender successfully carries out a restorative agreement, the charge will be expunged from the offender’s record. 

    It’s a process with a different purpose and goal from the state’s behavioral health courts, which are reserved for those with serious addiction or mental health problems who are repeat offenders. And with specialized courts, charges remain on an offender’s record after completion.

    Experts see court diversion as a form of restorative justice, and a powerful alternative to traditional sentencing, that can save lives. The programs often involve not only community service and restitution to crime victims, but also mental health and addiction services.

    “People shouldn’t be defined by the worst day of their life. You can wreck a life with a conviction and a short prison sentence,” says Michael Sheehan, a Concord attorney and vice president of New Hampshire Citizens for Criminal Justice Reform.

    And restorative justice has the results to prove that it works. According to the most recent department of corrections data on state recidivism rates, 43.2 percent of offenders reoffend after release from prison, a rate 15 percent higher than those who completed a restorative justice program in Belknap county.

    But New Hampshire’s system of court diversion is largely inconsistent, and access to it is not distributed equitably across the state. That also means the state doesn’t track adult diversion data and recidivism rates, which makes quantifying the success of diversion nearly impossible.

    “I do wish they were more widely available,” said Robin Melone, an attorney based in Manchester. “I think it would spare a significant number of defendants from having criminal records, it would save court resources and would serve to better defendants more than punish them while still holding them accountable and getting them services that could be life changing.”

    “I’ve had co-defendants...and one is referred to diversion and the other defendant who has a mirror image background, isn’t,” says Alyson Mahler, diversion coordinator for Rockingham County. “When they tell me, ‘my girlfriend was with me, she was arrested,’ I’m like, ‘is she getting diversion too?’ ‘No, she doesn’t know about it.’”

    It can be a problem for defendants with attorneys from counties without adult diversion as an option, or even attorneys from out-of-state. If the attorney isn’t aware of the option, it may not be offered by a judge or prosecutor at all. Diversion practitioners say they do their best to educate as much as they can about their services, but it’s also attorneys’ jobs to do that work themselves.

    Funding issues, too, have led to constant shifts and changes to where and how diversion is accessible to adults. It varies by county, and three counties in the state -- Cheshire, Coos and Hillsborough -- don’t have diversion as an option for adults at all. Some counties, like Strafford, only do about 18 adult felony diversions per year. Most won’t accept people who have already offended in the past. 

    In some cases, you may be lucky to have possessed a controlled drug in Belknap County because you can get a second chance. But if you happen to live in Coos or Hillsborough counties, your charge may very likely remain on your record.

Avoiding the criminal justice system can be a matter of luck 

    Diversion didn’t keep Deveer out of trouble. He was able to lose the marijuana charge, but the other two -- disobeying an officer and driving without a valid license -- remain on his record. He maintains that he shouldn’t have received those charges in the first place.

    “I guess I didn’t think I had to be in the situation in general, so I’m kind of on that bias, but at the same time...Even Lance (the director of White Mountain Restorative Justice) kind of knew that kids just had to put their hours in and then they were done. Like, it was very brief, but some of the knowledge might’ve been useful to people,” Deveer said.

    In 2018, Deveer was arrested again, this time for criminal threatening in Derry. Since it was his third charge, he was not eligible for diversion in Rockingham, which is mainly reserved for first-time offenders, but decisions are mainly left up to prosecutors for whether they believe diversion would be appropriate or beneficial.

    He says he feels like just another number caught in the system, like there’s no escape, even though the point of diversion is to keep people out of the criminal justice system in the first place.

    “We’re not taken as one person. We’re taken as a group of people that got mixed up in something,” Deveer says.

    He grew up with a mother and brother who struggled with mental illness. By age 18 he was enrolled at NHTI, hoping to pursue his interest in history. But he dropped out after his first arrest, tried to enlist in the military and couldn’t get in. After a quick stint at New Hampshire Hospital this summer where he was detained for mental health reasons, he’s out of a job and continues to feel the impact of his past.

    “[It has affected] every part of my life. I’ve only been able to work construction. I wasn’t able to go back to school, I wasn’t able to go into the military. Every time I get pulled over, I’m questioned way more than I need to be,” he says.

    If Deveer was in a different county, he might have had better luck. Diversion programs across the state generally do not address violent crimes, but if they have the capacity, some may accept repeat offenders, like Belknap. But since there is no state statute for adult diversion on the books, eligibility is different for nearly every program.

    “Due to the circumstances that we’ve seen, not just in our state, but across the country with the opiate issue and with drugs, we’re seeing a lot more people coming into our program that have previous convictions, whether they be misdemeanors or minor, low level felonies,” said Mike MacFadzen, director of Belknap County Restorative Justice.

    That wasn’t always the case. Restorative justice has existed in Belknap since 2001, when the county received a federal grant to start a program there. Eventually, it was taken over by the Sheriff’s office and became a separate department due to its success, remembers Brian Loanes, Belknap County Restorative Justice’s first director. 

    Back then, the program only accepted juveniles. But those in the criminal justice field soon saw how it could be beneficial for adults, too.

    “Very common cases we’d have was an 18 or 19-year-old had committed an offense and they had their whole life ahead of them, and having a criminal conviction on their record has adverse effects on serving in the military and going to college,” Loanes said.

    Today, Belknap County diverts more adults than juveniles. It’s more common to divert a younger adult between the ages of 18-25, but MacFadzen says all ages are accepted and determinations are made case by case.

    When it comes to counties like Belknap, MacFadzen believes that availability of services could be expanded if only the money was there. He and three part-time case managers dealt with 202 referrals in 2019 on a county budget of $185,000. That ended up covering about 20 percent of total docketed cases in the county, according to County Prosecutor Andrew Livernois.

    “If we had more funding and more availability of case managers, we could definitely be able to take in and provide services to those who are committing those misdemeanor first time offenses, those young 18-, 19-, 20-year-olds. And right now we’re not seeing them just because we’re dealing with the more serious cases,” he said.

The cost of diversion

    In 2016, an attempt at keeping youth and adults out of the criminal justice system came to an abrupt end in Carroll County.

    Things went south shortly after the program began just a few years before, at least financially. According to an attorney general’s report on the Tri County Community Action Program (Tri-CCAP) in 2015, the program was losing hundreds of thousands of dollars in operating costs. And in 2012, state incentive funds for diversion programs had dried up, leading to the closure of several diversion centers across the state.

    “Diversion has been in the state of New Hampshire since 1980. This conversation has been had 100 times over. For a long time they’ve been talking about how to fund this and how to do this,” said Nicole Rodler, chair of the New Hampshire Youth Diversion Network. “They run on absolute bare bones...at one point we had 33-35 programs across our state that closed their doors after incentive funding dried up.”

    Keeping the Tri-CCAP program around just didn’t seem sustainable, or even worth it based on low enrollment numbers, said Jeanne Robillard, current CEO of Tri-CCAP.

    “One of the things that the board needed to look at was revisiting our mission,” Robillard said. “We had a fair amount of mission drift, and we were taking a look at the programs and the services that we were looking at,” she said.

    Lance Zack, then program director of diversion at Tri-CCAP, decided to take on the mission himself. About three years ago, he opened White Mountain Restorative Justice in Conway, where he now guides first-time low-level offenders -- both juveniles and adults -- through restorative justice processes. 

    While Carroll County’s adult diversion still exists today under Zack’s leadership, he’s worried about its future. Zack’s program is a sole proprietorship and the only one of its kind in Carroll County. He doesn’t operate under a county attorney or corrections department like some programs, and he isn’t an accredited member of the youth diversion network, meaning he can’t access for grant funds through it. He’s been working on incorporating the business in order to have better access to funding, but COVID-19 has put a temporary halt on that process.

    “My reality is, I’ve been without any viable income, basically paying my rent for four months and now laying down $4,000 for the incorporation process itself,” Zack said.

    White Mountain Restorative Justice survives on only program fees: $250 per person, much lower than most other adult programs. In Grafton, a felony charge can set an offender back $600 plus extra fees for missed appointments or additional classes, which may be mandatory to complete diversion and get one’s record expunged. 

    That can be a barrier to some adults and youth, especially those who are low-income or live far from where the diversion center is based. Paying a court fine may be more affordable and practical than a months-long laborious program. 

    “Money should not make a difference but my time in private practice has made it clear that it does in fact make a difference,” said Melone, the attorney from Manchester. “I don’t think it is that the prosecutors are less sympathetic to indigent clients - I think it is that indigent clients have fewer resources to help an attorney put together an attractive proposal.”

    But that can cause big problems in a young adult’s life, especially when it comes to marijuana charges, Zack says. He knows offenders who have decided to pay a court fine for marijuana possession rather than doing diversion and ended being boxed out of college, the military and unions that have zero-tolerance substance use policies.

    “You put yourself into New Hampshire Tech for two years, intern for a year and find out that after your internship, the union turns you down because you paid a cash fine on an alcohol charge. I’ve seen it jam too many kids,” he said.

    Zack hopes by incorporating White Mountain Restorative Justice, the fee can be reduced or completely eliminated. 

    “That was part of my motivation looking to incorporate, was looking for external funding. I believe diversion should have a fee associated with it, it’s about personal accountability, but I believe the fee also has to be associated with the fact that this is the second poorest county in the state in a state that’s already poor on national ratings,” Zack says.

“There is no champion”

    Three counties have no adult diversion at all. One of those is Hillsborough, which, encompassing both Manchester and Nashua, is New Hampshire’s most densely populated county, the most racially diverse and has the highest crime volume.

    Most adult diversion is done as a court sentence or as an order by police or county prosecutors, as opposed to juvenile diversion cases, a majority of which are diverted pre-court by police. Hillsborough County attorney Michael Conlon believes diversion should be done at the pre-court level for everyone and is not the county attorney’s responsibility to implement.

    Diversion “primarily doesn’t exist [in Hillsborough] because police departments haven’t implemented it,” Conlon said. “Diversion is usually described as a referral to a program or service in lieu of arrest.”

    And for diversion to be done properly, he believes, it shouldn’t be up to each individual county.

    “What we really need is a uniform statewide funding, programming and services for these things,” Conlon said. “When we take away the statewide aspect of it, what you get is this mismatch of services that are helping some people in some counties and not helping people in others. And there’s no reason for that other than a lack of will to do it and to fund it.”

    It would take a lot of work to make that happen, and until very recently, there hasn’t been a champion for statewide, universal court diversion for adults or juveniles, noted Moira O’Neill, New Hampshire’s Child Advocate.

    State defense attorneys, although they have major concerns about equality of accessibility to diversion, are not able to take legal action because of lack of specificity within the juvenile statute, and total lack of an adult statute, said Tracy Scavarelli, director of legal services at the New Hampshire Public Defender.

    “Diversion is solely within the purview of the prosecutor, so there’s no real guarantee for anyone to obtain diversion, so it’s difficult to make the argument that anything is unfair based on that,” she said.

    The inconsistency and seemingly arbitrary nature of diversion programs that Scavarelli speaks of is the case in Sullivan County where County Prosecutor Marc Hathaway opposes spending money on diversion.

    Hathaway cited scarce resources and the ability of prosecutors and police to create their own “diversion” by determining what cases are prosecuted, as two reasons why adult diversion programs do not make sense in his county. 

    “I don’t think there’s a tremendous amount of benefit in a diversion program. The rationale for a diversion is that the individual and the crime combined are unworthy of intervention by the criminal justice system,” Hathaway said. “If that’s true, then why build a program in the criminal justice system around a case that you would not and should not prosecute? We have scarce resources in this community and if we think something is de minimis, society has a very simple way of addressing that. The decision not to prosecute.”

    Asked whether he agreed with data that shows a reduction in recidivism rates for those who have completed a diversion program compared with those recently released from prison, Hathaway said he doesn’t find this to be a fair comparison. 

    “A closer comparison would be those who have no, or minor prior record and are given a suspended sentence with/or without probation because the combination of the offense and the offender’s history did not warrant incarceration,” he explained. “In a world of scarce resources our approach should be more targeted. If we have a program and it fails what do you believe the response should look like? Failure without a consequence is a bad message.” 

New light on the horizon 

    New light for diversion programs is slowly beginning to emerge as new waves of activism have swept the state this summer. Black Lives Matter Seacoast included “full support and the usage of diversion programs” for those with mental health and substance use issues on its list of demands to local officials.

    Clifton West, a co-founder of BLM Seacoast, says he and other organizers have been working with lawmakers and police departments in the area to inform them of diversion services that are already available, and encourage the use of diversion more consistently. 

    He believes that communities should divest in policing and instead invest in diversion to prevent further crime, and therefore reduce the need for more law enforcement.

    “To me, it’s not an option, we have to do it,” West says. “I think it’s crazy if you don’t look at the statistics that we have seen around the country and go eh, that’s an option but we just like funding the police the way we do.”

    America’s obsession with discriminatory mass arrest and incarceration has its place in New Hampshire as much as anywhere else in the United States. According to the Sentencing Project, the Granite State incarcerates Black people more than five times as frequently as white people.

    And people of color are heavily overrepresented in the state’s justice system: while Black and Hispanic people make up just over 4 percent of the state population, they represent about 14 percent of those incarcerated.

    While discrimination is possible within diversion as much as any system, West says with proper representation and training, it could be a remedy to the problem.

    “If you have these diversion programs, it would help not only bring down mass incarceration and arrest in general, it would I think help bring that type of trust back to the community, it would help bring law enforcement together with the community as well,” West said.

    And existing adult diversion programs, for the first time, are taking matters into their own hands by creating an adult diversion network to better combine efforts and resources and hopefully create more universality of requirements and services across counties. 

    “One of the big drivers to doing that was, if Tom Smith commits a crime in Merrimack County and completes diversion and then comes to Grafton County and commits a crime, we wouldn’t know that they had completed diversion because the charge is nolle prossed. So they could get diversion again, when they shouldn’t,” says Renee DePalo, Grafton County’s alternative sentencing coordinator.

    They’re hoping to create a database to more consistently track data on who goes in and out of the state’s adult diversion programs. But that costs money that would, as of now, have to come out of each program’s own budget. 

    Neighboring Vermont, which has community justice and diversion for adults and juveniles written into statute itself used to have a community justice network that recently disbanded due to funding issues and differing philosophies. But since it’s written into statute and state funded, services are still more consistent than they are in New Hampshire.

    “If this were statewide and it were actually in the law to refer people to diversion, there would be a lot less criminal issues on our hands I think,” Porreca, of Valley Diversion, said.

Editor’s Note: This series on court diversion is part of a multiyear project exploring race and equity in New Hampshire produced by the partners of The Granite State News Collaborative.  The editing team included Scott Merrill, Editor, NH Bar News; and Ben Conant, Editor, Monadnock Ledger-Transcript. The reporting and research team included: John M. Bassett, Jordyn Haime, Kathie Ragsdale, Fiona St. Pierre, and Adam Urquhart.

The series was supported by a competitive grant from the nonpartisan Solutions Journalism Network. The Collaborative and its partners retain editorial control.