Conviction Alternatives Program (CAP)

The Northern District of California offers a Conviction Alternatives Program (CAP) for certain individuals at the pre-plea and post-plea phases of their criminal cases.

The District’s CAP program offers:

  • Pre-Plea Diversion (often referred to as “Pretrial Diversion”)
  • Post-Plea Diversion and
  • Deferred Sentencing.

Before a defendant pleads guilty, the United States Attorney’s Office (USAO) may offer him or her the opportunity to participate in a Pretrial or Post-Plea Diversion Program, which may include participation in the Diversion/Deferred Sentencing Court.

After a defendant has pleaded guilty, the Court may elect to defer sentencing and allow the defendant to participate in the Diversion/Deferred Sentencing Court prior to sentencing.

Summary of Programs

Pretrial Diversion (also known as Pre-Plea Diversion) Program

The USAO has had a Pretrial Diversion Program for many years. See CAP Operating Agreement Attachment A. The USAO can offer Pretrial Diversion during plea negotiations, or the Pretrial Services Office (PSO) or defense counsel may refer candidates to the USAO for consideration. Pretrial Diversion does not require a guilty plea, but each participating defendant must agree to a Speedy Trial Act exclusion and may be required by the USAO to agree to a statement of facts supporting the underlying offense. Participants in the Pretrial Diversion Program are supervised by the PSO for an agreed period of time, typically six months to one year. If the participant successfully completes the program (as determined by the USAO), the USAO will take whatever action is set forth in the Pretrial Diversion Agreement, which typically includes dismissal of the charges.

Post-Plea Diversion Program

The USAO has also offered Post-Plea Diversion in the past, and will continue to do so when appropriate. The USAO can offer Post-Plea Diversion during plea negotiations, or the PSO or defense counsel may refer candidates to the USAO for consideration. In addition, the possibility of Post-Plea Diversion may be raised by the Court but, in order to avoid violating Rule 11(c) of the Federal Rules of Criminal Procedure, only after the defendant has entered a guilty plea. The USAO and the defendant may thereafter agree to Post-Plea Diversion.

Post-Plea Diversion involves the entry of a guilty plea pursuant to a plea agreement, with sentencing postponed during the diversionary period. Participants in the Post-Plea Diversion Program will be required to participate in the Diversion/Deferred Sentencing Court for an agreed upon period of time, typically one year to 18 months. The Post-Plea Diversion agreement and/or plea agreement then typically provide that upon successful completion of the Program, the defendant will move to withdraw the guilty plea and the USAO will move to dismiss all or some of the charges or sentence-enhancing allegations, or will recommend a lesser sentence than it would otherwise have recommended. The Post-Plea Diversion Program may be appropriate for more serious offenders than those involved in Pretrial Diversion, in that it provides a guilty plea that will be entered as a conviction if the offender does not successfully complete the program.

Deferred Sentencing

In cases not involving a diversion agreement entered into between the USAO and a defendant, after the entry of a guilty plea the Court may defer sentencing for a period of time and refer the defendant to the PSO for evaluation of his or her suitability for the Diversion/Deferred Sentencing Court. See CAP Operating Agreement, Attachment B. The PSO will provide a report and recommendation to the Court, and the parties will also have an opportunity to be heard. Defendants who are thereafter determined suitable by the Court will be referred to the Diversion/Deferred Sentencing Court for a period of time before sentencing, typically for a period of six months to one year. Upon successful completion of the Diversion/Deferred Sentencing Court program, the USAO may consider renegotiating the terms of the plea agreement, moving to dismiss the charges, moving to dismiss charges with mandatory minimums or sentence-enhancing allegation, or agree to recommend a lower sentence.

About the Diversion/Deferred Sentencing Court

In the Diversion/Deferred Sentencing Court, a District Judge participates in monthly meetings with the program participants. One judge per division may be assigned to all of the participants in that division. Each offender’s defense attorney participates — either the originally assigned defender, or one federal defender re-assigned to all participants in a particular group, or a CJA attorney or pro bono counsel. One or more prosecutors will participate — either the assigned AUSA or a single reassigned AUSA. A dedicated Pretrial Services Officer is assigned to each group. The Diversion/Deferred Sentencing Court includes frequent contact with the defendant to monitor conduct and to provide direction, advice, and counseling; regular communication with family members, treatment providers, and counselors; verification of residence and employment; random drug testing; and frequent criminal record checks. By providing defendants with a framework of supervision and services, the program seeks to help defendants learn from their mistakes, make better choices, engage in productive behavior, and reduce the risk of recidivism.

The collaborative process of supervision provides a greater level of enforcement and support from the judge who may eventually sentence the defendant and, at the same time, educates the judge and the prosecutor on the personal factors that affect the particular defendant. If a defendant is placed on probation, the Probation Office provides a seamless transition to supervision by an officer familiar with the Diversion/Deferred Sentencing Court program and the particular offender.

Judges participating in Diversion/Deferred Sentencing Court

District Judges Edward J. Davila, Haywood S. Gilliam, Jr. and William H. Orrick III and Magistrate Judges Laurel Beeler, Nathanael Cousins, Donna M. Ryu, Joseph C. Spero and Kandis Westmore are assigned to Diversion/Deferred Sentencing Court proceedings.

CAP Documents