§ 164. Adult court diversion program
(a) Purpose.
(1) The Attorney General shall develop and administer an adult court diversion program,
for both pre-charge and post-charge referrals, available in all counties.
(2) The program shall be designed to provide a restorative option for persons alleged
to have caused harm in violation of a criminal statute or who have been charged with
violating a criminal statute as well as for victims or those acting on a victim’s
behalf who have been allegedly harmed by the person referred to the program. The diversion
program can accept referrals to the program as follows:
(A) Pre-charge by law enforcement or prosecutors pursuant to a policy adopted in accordance
with subdivisions (c)(1)-(2) of this section.
(B) Post-charge by prosecutors for persons charged with a first or a second misdemeanor
or a first nonviolent felony, or other offenses as the prosecutor deems appropriate,
pursuant to subdivision (c)(3) of this section.
(C) Post-charge by prosecutors of persons who have been charged with an offense and who
have substance abuse or mental health treatment needs regardless of the person’s prior
criminal history record, except a person charged with a felony offense that is a crime
listed in 13 V.S.A. § 5301(7) shall not be eligible under this section. Persons who have attained 18 years of age
who are subject to a petition in the Family Division pursuant to 33 V.S.A. chapter 52 or 52A shall also be eligible under this section. Programming for these persons is intended
to support access to appropriate treatment or other resources with the aim of improving
the person’s health and reducing future adverse involvement in the justice system.
(b) Administration; report.
(1) Beginning on July 1, 2025, the Attorney General shall support the operation of diversion
programs in each of the State’s counties through grants of financial assistance to,
or contracts for services with, a single municipality or organization to provide community-based
restorative justice programs and services in each county. Upon approval of the Attorney
General, the single municipality or organization receiving a grant pursuant to this
section may issue subgrants to diversion providers or execute subcontracts for diversion
services.
(2) The Adult Pre-Charge Diversion Program established pursuant to this section shall
operate only to the extent funds are appropriated to the Office of the Attorney General,
the Department of State’s Attorneys and Sheriffs, and the Office of the Defender General
to carry out the Program.
(3) In consultation with community-based restorative justice providers, the Office of
the Attorney General shall develop program outcomes following the designated State
of Vermont performance accountability framework and, in consultation with the Department
of State’s Attorneys and Sheriffs, the Office of the Defender General, the Center
for Crime Victim Services, the Judiciary, and the Division of Racial Justice Statistics
of the Office of Racial Equity, report annually on or before December 1 to the General
Assembly on services provided and outcome indicators. As components of the report
required by this subsection, the Attorney General shall include data on the number
of pre-charge and post-charge diversion program referrals in each county; race, gender,
age, and other demographic variables, whenever possible; offenses charged and crime
types; successful completion rates; and possible causes of any geographical disparities.
(4) The Attorney General is authorized to accept grants and gifts for the purposes of
this section, such acceptance being pursuant to 32 V.S.A. § 5.
(5) In consultation with community-based restorative justice providers, the Center for
Crime Victims Services, the Department of State’s Attorneys and Sheriffs’ Victim Advocates,
the Division for Racial Justice Statistics of the Office of Racial Equity, and the
State Archivist, the Attorney General shall adopt a policies and procedures manual
for community-based restorative justice providers to promote a uniform system across
the State in compliance with this section. The manual shall include the following
policies and procedures related to:
(A) informing victims of their rights and role in pre-charge and post-charge diversion,
including that such information is available in writing upon request;
(B) the timely notification victims of a referral to pre-charge and post-charge diversion;
(C) an invitation to victims to engage in the restorative process;
(D) how to share information with a victim concerning a restorative agreement’s conditions
related to the victim and any progress made on such conditions;
(E) best practices for collecting data from all parties that engage with the pre-charge
and post-charge diversion programs; and
(F) confidentiality expectations for all parties who engage in the restorative process.
(c) Adult diversion program policy and referral requirements.
(1) Adult pre-charge diversion policy required. Each State’s Attorney’s office shall adopt an adult pre-charge diversion referral
policy. To encourage fair and consistent pre-charge and post-charge diversion referral
policies and methods statewide, the Department of State’s Attorneys and Sheriffs and
the Community Justice Unit shall publicly post the policies adopted by each State’s
Attorney’s office.
(2) Adult pre-charge diversion policy contents. A county’s State’s Attorney’s pre-charge diversion program policy shall include the
following:
(A) criteria to determine whether a responsible party is eligible to participate in pre-charge
diversion;
(B) any appropriate documentation to accompany a referral to pre-charge diversion, including
the name and contact information of the responsible party, the name and contact information
of the victim or victims, and a factual statement or affidavit of probable cause of
the alleged offense;
(C) a procedure for returning a case to the law enforcement agency or the prosecutor,
including when:
(i) the prosecutor withdraws a pre-charge referral from the diversion program;
(ii) the community-based restorative justice provider determines that the matter is not
appropriate for pre-charge programming; and
(iii) a person does not successfully complete pre-charge diversion programming; and
(D) a statement reiterating that the State’s Attorney retains final discretion over the
cases that are eligible for diversion and may deviate from the adopted policy in accordance
with such discretion.
(3) Adult post-charge diversion requirements. Each State’s Attorney, in cooperation with the Office of the Attorney General and
the adult post-charge diversion program, shall develop clear criteria for deciding
what types of offenses and offenders will be eligible for diversion; however, the
State’s Attorney shall retain final discretion over the referral of each case for
diversion. All adult post-charge diversion programs receiving financial assistance
from the Attorney General shall adhere to the following:
(A) The post-charge diversion program for adults shall only accept persons against whom
charges have been filed and the court has found probable cause, but are not adjudicated.
(B) A prosecutor may refer a person to diversion either before or after arraignment and
shall notify in writing the diversion program and the court of the prosecutor’s referral
to diversion.
(C) If a person is charged with a qualifying crime as defined in 13 V.S.A. § 7601(4)(A) and the crime is a misdemeanor, the prosecutor shall provide the person with the
opportunity to participate in the court diversion program unless the prosecutor states
on the record at arraignment or a subsequent hearing why a referral to the post-charge
program would not serve the ends of justice. Factors considered in the ends-of-justice
determination include the person’s criminal record, the views of any victims, or the
need for probationary supervision.
(D) Notwithstanding this subsection (c), the diversion program may accept cases pursuant
to 33 V.S.A. §§ 5225 and 5280.
(d) Confidentiality.
(1) The matter shall become confidential when notice of a pre-charge referral is provided
to the diversion program, or when notice of a post-charge referral is provided to
the court. However, persons who are subject to conditions of release imposed pursuant
to 13 V.S.A. § 7554 and who are referred to diversion pursuant to subdivision (a)(2)(C) of this section,
the matter shall become confidential upon the successful completion of diversion.
(2) All information gathered in the course of the adult diversion process shall be held
strictly confidential and shall not be released without the participant’s prior consent.
(3) Information related to any offense that a person divulges in preparation for, during,
or as a follow-up to the provision of the adult diversion programming shall not be
used against the person in any criminal, civil, family, juvenile, or administrative
investigation, prosecution, or case for any purpose, including impeachment or cross-examination.
However, the fact of participation and success, or reasons for failure, may become
part of the prosecutor’s records. This subsection shall not be construed to prohibit
the limited disclosure or use of information to specific persons in the following
circumstances:
(A) Where there is a threat or statement of a plan that a person may reasonably believe
is likely to result in death or bodily injury to themselves or others or damage to
the property of another person.
(B) When disclosure is necessary to report bodily harm any party causes another during
restorative justice programming.
(C) When disclosure to other community-based restorative justice providers is necessary
to facilitate coordination where an individual has more than one active referral before
different restorative justice providers.
(D) Where there is a reasonable suspicion of abuse or neglect of a child or vulnerable
adult and a report is made pursuant to the provisions of 33 V.S.A. § 4914 or 33 V.S.A. § 6903 or to comply with any law.
(E) Where a court or administrative tribunal determines that the materials were submitted
by a participant in the program for the purpose of avoiding discovery of the material
in a court or administrative proceeding. If a participant wishes to avail themselves
of this provision, the participant may disclose this information in camera to a judicial
officer for the purposes of seeking such a ruling.
(4)(A) Notwithstanding subdivision (2) of this subsection (d), if law enforcement or the
prosecutor refers a case to diversion, upon the victim’s request, the adult diversion
program shall provide information relating to the conditions of the diversion contract
regarding the victim, progress made on such conditions, and information that assists
with obtaining the victim’s compensation.
(B) Victim information that is not part of the public record shall not be released without
the victim’s prior consent.
(C) Nothing in this section shall be construed to prohibit a victim’s exercise of rights
as otherwise provided by law.
(e) Rights and responsibilities.
(1) Adult court diversion programs shall be set up to respect the rights of participants.
(2)(A) Diversion candidates shall be informed of their right to the advice, assistance, and
access to private counsel or the public defender at all stages of the diversion process,
including the initial decision to participate and the decision to accept the diversion
contract, so that the candidate may give informed consent.
(B) For the pre-charge diversion program, notwithstanding the financial need determination
pursuant to 13 V.S.A. § 5236, the diversion program shall inform the candidate that a public defender is available
for consultation at public expense upon the request of the diversion candidate.
(3) The candidate shall be informed that participation in the diversion program is voluntary.
(4)(A) The pre-charge and post-charge diversion programs may charge fees to its participants,
which shall be paid to the local adult court diversion program. If a fee is charged,
it shall be determined by program officers or employees based upon the financial capabilities
of the participant. The fee shall not exceed $300.00. Any fee charged shall be a debt
due from the participant.
(B) Notwithstanding 32 V.S.A. § 502(a), fees collected pursuant to this subdivision (4) shall be retained and used solely
for the purpose of the adult court diversion program.
(5) Any victims shall be notified of the victim’s rights and role in the pre-charge diversion
process, including notification of a candidate’s referral to the pre-charge diversion
program by the pre-charge diversion program.
(f) Records; deletion and expungement.
(1) Pre-charge diversion records deletion.
(A) Not later than 10 days after the successful completion of the pre-charge diversion
program, the adult diversion program shall notify the victim, law enforcement agency,
and the State’s Attorney’s office of the participant’s successful completion. Payment
of restitution is required for successful completion.
(B) Within 30 days after the two-year anniversary notifying the State’s Attorney’s office
of the participant’s successful completion, the Attorney General shall provide notice
that all records held by the diversion program shall be deleted.
(C) Within 30 days after the two-year anniversary notifying the law enforcement agency
and the State’s Attorney’s office of the participant’s successful completion, the
Attorney General shall provide notice that all public records held by the law enforcement
agency and the State’s Attorney’s office shall be deleted, including any held by the
Attorney General. Records maintained on the Valcour database or other similar nonpublic
databases maintained by a law enforcement agency, a State’s Attorney’s office, or
the Department of State’s Attorneys and Sheriffs shall be exempt from deletion and
shall only be used for criminal justice purposes.
(2) Pre-charge diversion case index.
(A) The Community Justice Unit shall keep a special index of pre- charge diversion cases
that have been deleted pursuant to this section together with the notice of deletion
provided by the Attorney General. The index shall list only the name of the diversion
participant, the individual’s date of birth, a case number, date of case closure,
location of programming, and the offense that was the subject of the deletion.
(B) The special index and related documents specified in subdivision (A) of this subdivision
(2) shall be confidential and shall be physically and electronically segregated in
a manner that ensures confidentiality and that limits access to authorized persons.
(C) Inspection of the notice may be permitted only upon request by the person who is the
subject of the case. The Attorney General may permit special access to the index and
the documents for research purposes pursuant to subdivision (g)(2) of this section.
(D) The Community Justice Unit shall establish policies for implementing subdivisions
(1)–(4) of this subsection (f).
(3) Effect of deletion. Except as otherwise provided in this section, upon the notice to delete files and
records under this section, the matter shall be considered never to have occurred;
all index references thereto shall be deleted; and the participant, the Community
Justice Unit, law enforcement officers and departments, prosecutors, the referring
entity, and the diversion program shall reply to any request for information that
no record exists with respect to such participant inquiry in any matter. Copies of
the notice shall be sent to each agency, entity, or official named therein.
(4) Deletion applicability. The process of automatically deleting records as provided in this section shall only
apply to those persons who completed pre-charge diversion on or after July 1, 2025.
(5) Post-charge diversion records expungement. Within 30 days after the two-year anniversary of a successful completion of adult
post-charge diversion, the court shall provide notice to all parties of record of
the court’s intention to order the expungement of all court files and records, law
enforcement records, fingerprints, and photographs other than entries in the adult
court diversion program’s centralized filing system applicable to the proceeding.
However, the court shall not order expungement if the participant does not satisfy
each of subdivisions (A)–(C) of this subdivision. The court shall give the State’s
Attorney an opportunity for a hearing to contest the expungement of the records. The
court shall expunge the records if it finds:
(A) two years have elapsed since the successful completion of the adult post-charge diversion
program by the participant;
(B) the participant has not been convicted of a subsequent felony or misdemeanor during
the two-year period, and no proceedings are pending seeking such conviction; and
(C) the participant does not owe restitution related to the case.
(6) Expungement of sealed records. The court may expunge any records that were sealed pursuant to this subsection prior
to July 1, 2018 unless the State’s Attorney’s office that prosecuted the case objects.
Thirty days prior to expunging a record pursuant to this subdivision, the court shall
provide written notice of its intent to expunge the record to the State’s Attorney’s
office that prosecuted the case.
(7) Post-charge diversion case index.
(A) The court and the Office of the Attorney General shall keep a special index of post-charge
diversion cases that have been expunged pursuant to this section together with the
expungement order. The index shall list only the name of the person convicted of the
offense, the person’s date of birth, the docket number, date of case closure, location
of programming, and the criminal offense that was the subject of the expungement.
(B) The special index and related documents specified in subdivision (A) of this subdivision
(7) shall be confidential and shall be physically and electronically segregated in
a manner that ensures confidentiality and that limits access to authorized persons.
(C) Inspection of the expungement order and the certificate may be permitted only upon
petition by the person who is the subject of the case. The Chief Superior Judge may
permit special access to the index and the documents for research purposes pursuant
to the rules for public access to court records.
(D) The Court Administrator shall establish policies for implementing subdivisions (5)–(9)
of this subsection (f).
(8) Effect of expungement. Except as otherwise provided in this section, upon the entry of an order expunging
files and records under this section, the proceedings in the matter shall be considered
never to have occurred; all index references thereto shall be deleted; and the participant,
the court, law enforcement officers and departments, prosecutors, the referring entity,
and the diversion program shall reply to any request for information that no record
exists with respect to such participant inquiry in any matter. Copies of the order
shall be sent to each agency, entity, or official named therein.
(9) Expungement applicability. The process of automatically expunging records as provided in this section shall only
apply to those persons who completed diversion on or after July 1, 2002. Any person
who completed diversion prior to July 1, 2002 must apply to the court to have the
person’s records expunged. Expungement shall occur if the requirements of this subsection
are met.
(g) Public Records Act exemption.
(1) Except as otherwise provided in this section, any records or information produced
or acquired pursuant to this section shall be exempt from public inspection or copying
under Vermont’s Public Records Act and shall be kept confidential.
(2) Notwithstanding subdivision (1) of this subsection, a law enforcement agency, State’s
Attorney’s office, court, or community-based restorative justice provider may disclose
information to colleges, universities, public agencies of the State, and nonprofit
research organizations that a community-based restorative justice provider has agreements
with for use in connection with research projects of a public service nature, but
no person associated with those institutions or agencies shall disclose that information
in any manner that would reveal the identity of an individual who provided the information
to the community-based restorative justice provider. (Added 1981, No. 206 (Adj. Sess.), § 2; amended 1983, No. 217 (Adj. Sess.); 1983, No. 229 (Adj. Sess.), § 1; 1995, No. 47, § 2, eff. April 20, 1995; 1999, No. 160 (Adj. Sess.), § 3; 2003, No. 157 (Adj. Sess.), § 12; 2009, No. 12, § 2; 2009, No. 146 (Adj. Sess.), § D6; 2009, No. 156 (Adj. Sess.), § E.201.1; 2011, No. 56, § 24; 2011, No. 145 (Adj. Sess.), § 1; 2017, No. 61, § 2; 2018, No. 8 (Sp. Sess.), § 11, eff. June 28, 2018; 2019, No. 77, § 2, eff. June 19, 2019; 2019, No. 124 (Adj. Sess.), § 1; 2019, No. 167 (Adj. Sess.), § 2, eff. Oct. 7, 2020; 2023, No. 5, § 2, eff. July 1, 2023; 2023, No. 180 (Adj. Sess.), § 1, eff. July 1, 2025; 2025, No. 64, § 1, eff. July 2, 2025.)