How to Avoid Prison

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: February 10, 2023 References

Diversion programs and alternatives to incarceration are available to help offenders avoid prison time and turn their lives around. More and more, courts across the United States and in other countries are recognizing that these programs are more cost effective and lead to more positive long-range results than prison time.^{[1]
X
Research source} If you are facing criminal penalties, you should be aware of some of these alternatives and how you might be able to take advantage of them. In many cases, the court will be aware of the alternatives, but if you do some research and take some steps on your own, you can help make this happen.

Part 1

Part 1 of 4:

Finding Alternative Programs

1
Talk to your attorney about possibilities. If you have been arrested or charged with a crime, talk to your attorney to see if there are any local, state, federal or private alternatives to prison programs that you qualify for instead of being incarcerated. Your attorney is probably aware of options that have been effective before.
- If you do not have an attorney of your own, you should at least be represented by a public defender. Speak to the police or the prosecutor about getting one.
2
Investigate whether you qualify for a diversion program. Most states have begun to recognize that using diversion programs instead of jail time may be the best way to go, especially for first-time or low-level offenders. The crimes that usually qualify are such things as petty theft, personal drug possession, or driving under the influence of drugs or alcohol. You are also more likely to be considered for a diversion program if it is your first offense.^{[2]
X
Research source} Diversion is also an option in cases in which the defendant suffers from certain mental health problems and could benefit from counseling rather than incarceration.^{[3]
X
Research source}

Advertisement
3
Balance your options and understand the requirements of any diversion program. You will need to talk with your attorney about the best strategy for your case. On one hand, you could fight the charges, go to court, and perhaps be found not guilty. But if you do not believe that is likely, you may want to accept the diversion program.
- In some cases, entering into a diversion plan does not require a plea of guilty. In fact, you usually enter diversion as an alternative to the court process. This means that if you complete the program successfully, you will not have a criminal record (based on this incident).^{[4]
  X
  Research source}^{[5]
  X
  Research source}
- In most programs, you will be required to pay a fee to the court or to the prosecutor’s office for the cost of the diversion program or counseling. This will vary from program to program.
- The length of the program will also vary, typically from a few months to a year or so. You will have to attend counseling sessions, group meetings, and perhaps perform some community service. You may also be required to pay restitution to any victims of what you did.

Part 2

Part 2 of 4:

Getting Into an Alternative Program

1
Suggest a diversion program to the law enforcement officer at the time of the arrest. Many states have diversion programs that begin right at the initial phase of the criminal process - that is, when you get arrested. The police in many communities have the authority not to arrest you formally but to offer to enroll you in a diversion program. If you find yourself in this position, you might suggest to the police officer that you would be willing to enter a counseling program if they have one.^{[6]
X
Research source}
- For many programs, this first phase of diversion applies to individuals with mental health or behavioral disorders. Therefore, in order to apply to a particular defendant, the defendant himself may not be in a position to make this suggestion. But if you are a parent or relative of the defendant, you might make the recommendation.
2
Ask the prosecutor about diversion programs before the trial. If you have been arrested and charged, there is typically some time before your case gets to the trial stage. During this time, you may or may not be held in jail. You or your attorney will have opportunities to discuss the case with the prosecutor. It is at this stage that you can also suggest or recommend a diversion or counseling program as an alternative to prison.^{[7]
X
Research source}
3
Make strong arguments to get placed in a diversion program. If you need to convince the prosecutor that diversion is a good idea, some points to make are that diversion programs usually have the following positive results:^{[8]
X
Research source}
- reduce cost for the state in legal fees
- cut down on time spent in court
- reduce rates of recidivism (repeat offenders)
- by avoiding a conviction, the defendant is more likely to be able to get or hold a job, find housing, and be a productive member of society
4
Ask the court to order counseling or diversion rather than a prison sentence. If you have not yet successfully arranged a diversion program, and your case goes all the way to trial, you or your attorney can ask the judge to order a diversion program or counseling instead of jail time. In some cases, you have to plead guilty to the charge, and then your “sentence” will be some form of counseling or community service instead of prison. In other cases, you may be able to avoid a plea or conviction and have the case held open while you complete the alternative program, and then have the charges be dismissed. Either alternative keeps you out of prison.^{[9]
X
Research source}
5
Make your case in court for a diversion program. In support of your request, you or your attorney should make as many of the following arguments as possible (if they are true):^{[10]
X
Research source}^{[11]
X
Research source}
- you cooperated with the police and did not resist arrest
- you have participated in the criminal process so far
- nobody was harmed by your actions
- you have already begun counseling and will continue
- this is your first offense
- you intend to participate in counseling, community service, or whatever alternative the court orders

Part 3

Part 3 of 4:

Completing the Expectations of Your Program

1
Attend all meetings or counseling sessions. If you are successful in being entered into a diversion program at any stage of the criminal process, it is essential that you attend every meeting. These may be meetings with a counselor, group meetings such as A.A., or meetings with the prosecutor or some member of the district attorney’s office. If you miss even one or more meetings or sessions, you could lose the right to the diversion program and wind up back in court.
2
Follow all instructions of the court or prosecutor. A diversion program may consist of several component parts. Make sure that you complete them all as ordered. These may consist of one or more of the following: ^{[12]
X
Research source}
- Pay restitution for any damage you caused.
- Present yourself for drug screening (and make sure that you are clean)
- Complete community service obligations and get any supervisors to verify
3
Return to court to dismiss the charges against you. In most programs, the positive outcome for completing the diversion program is that the court will dismiss the criminal charges against you. ^{[13]
X
Research source} In many courts, even if you initially pleaded guilty to the charge in order to get into the program, the court may retroactively dismiss the case if you complete your program.^{[14]
X
Research source}
4
Stay out of trouble. Depending on the state and the particular charges, if you commit another crime after a diversion program, the court may have the right to reopen your first case and add those charges to the second one. At the very least, you will probably not get a second chance at diversion.^{[15]
X
Research source}

Part 4

Part 4 of 4:

Avoiding Getting Arrested in the First Place

1
Start counseling as soon as you recognize you have a problem. Before you get into serious trouble, find a counseling program and try to stop the behavior that may get you into trouble. Some of the kinds of things that can lead to trouble, but which you may avoid with counseling, are:
- illegal drug use or abuse
- alcohol abuse
- anger management problems
- domestic abuse or assault
- mental disorders, depression or anxiety disorders
2
Don’t try to run or flee. If a police officer instructs you to stop, either while in a car or on foot, you need to stop. The chances of escaping are minimal, and fleeing will only make things worse. Running or driving away will make you appear guilty (or guiltier than you are). This could also create additional charges for resisting arrest. In some cases, it could give the police cause to use physical or lethal force to make you stop. ^{[16]
X
Research source}
- The police or another authority such as private security might take you into custody without formally arresting you. These same recommendations still apply to that procedure.
3
Cooperate with authorities at the point of arrest. If you are being arrested or are being taken into custody, you need to avoid making the problem any worse than it already is. Follow the instructions of the arresting officer. If you are polite and cooperative, you may just be able to satisfy the officer that you are not a dangerous problem and you could be let go.^{[17]
X
Research source}
4
Be respectful. Do not swear, argue or talk back, and absolutely do not fight or become physical. Any of these actions could create additional charges against you, such as assaulting an officer or resisting arrest. ^{[18]
X
Research source} Alternatively, if you are respectful during the process, your positive behavior may help you if you wind up in court.
5
Do not consent to a search. While you need to cooperate, do not cooperate too much. Unless the police have a search warrant, they are only entitled to get your identity, address, and age. In fact, many sources recommend that you say aloud, particularly if any witnesses are around, “I do not consent to a search.” ^{[19]
X
Research source}
- The police may still conduct a search anyway, but if you make it clear that you do not consent, you may at least raise evidentiary issues for your attorney to argue at trial.
6
Limit what you say until you contact your attorney. While it is important for you to cooperate, you need to avoid saying too much. If you are taken into police custody, whether or not they formally charge you with a crime, it is best to ask for your attorney right away, and wait for him or her to arrive before talking with the police. The things that you say may be used against you, so it is often best not to say anything, especially if you are angry or upset.
7
Suggest that the police give you a “notice to appear” instead of arrest. An arrest means that the police are taking you into custody and will take you immediately to the police station, where you may spend time sitting in jail until you can contact someone for bail. Alternatively, if you have been respectful, you might convince the officer to let you go, with a notice to appear in court at some later date. ^{[20]
X
Research source}