Interviewer: What are the factors that the judge is supposed to take into consideration for the conditional dismissal program?
Lauren Scardella: Under the statute, the judge is required to consider ten factors: (1) the nature and circumstances of the offense; (2) the facts surrounding the commission of the offense; (3) the motivation, age, character, and attitude of the defendants; (4) the desire of the complainant or victim to promote prosecution; (5) the needs and interests of the victim and the community; (6) the extent to which the defendant’s offense constitutes part of a continuing pattern of antisocial behavior; (7) whether the offense is of an assaultive or violent nature, whether in the act itself or in the possible injurious consequences of such behavior; (8) whether the applicant’s participation will adversely affect the prosecution of co‑defendants; (9) whether diversionary of the defendant from prosecution is consistent with the public interest and; (10) any other factors deemed relevant by the court. The last one is the catch‑all. It gives this list of nine factors the court is to consider, and then the tenth one says, “And anything else.”
Interviewer: This can be given or not given for pretty much any reason?
Lauren Scardella: If the judge thinks the reason is relevant, then yes. However, there is an appeal process. If they’re not granted it, they can appeal to the Superior Court.
Interviewer: In your experience, what are some examples of what they consider antisocial behavior?
Lauren Scardella: The statute doesn’t say. That’s actually interesting, because this law is so new that nobody has a lot of experience with it. It’s been about six months, and I haven’t seen it used that often, and my understanding from other lawyers and judges is that they haven’t either. In terms of what they consider a continuing pattern of antisocial behavior, it’s going to have to be based on what the judge thinks. Maybe the person is this bully and has a history of getting in fights in school, and they’re charged with a simple assault. It could be something like that.
Court Perception of Diversionary Programs
Interviewer: How do the courts look at any of these diversionary programs? Do they want to get as many people in there as possible, or do they look at them as jealously‑guarded favors that people really have to beg for?
Lauren Scardella: They are definitely not “jealously-guarded favors.” I think that the courts want to do what’s best for the defendant, whatever is in the interest of justice, and whatever is most efficient. Judicial economy is a big concern, and putting somebody in a program like this is economical because it cuts off the prosecution of the case for at least a year and potentially forever if they complete the program successfully.
I think that judges and prosecutors do want to get as many people as possible in the programs. Besides judicial economy, another reason for that is that the purpose behind these statutes is to offer an alternative to prosecution for people who don’t have a history in the criminal justice system – people who basically live law‑abiding lives, but for this one incident in particular. There’s a public policy aspect to it.