DA raises concerns about diversion programs

By Kevin O’Brien

Marathon County District Attorney Theresa Wetzsteon expressed doubts last week about her office’s continued participation in the county’s criminal diversion programs following what she called a “breakdown” in a drug court case involving a suspect facing federal indictment.

Speaking to the Public Safety Committee at its Jan. 9 meeting, Wetzsteon described a “drift” away from the drug court’s original intent to offer low-level offenders an opportunity to avoid prosecution by pursuing treatment instead. In a recent case, the drug court team voted 5-4 to deny access to the defendant under indictment, but Wetzsteon was concerned that the vote was that close. The very fact that the drug court would consider a defendant facing such highlevel charges “is not consistent to me, as district attorney, with what the drug court model is all about,” she said.

“I cannot continue to support that, and I have expressed that to the drug court team,” she said, noting that “it’s not a matter of public perception, it’s public safety.” See DIVERSION/ page 3 Diversion

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Wetzsteon said she has previously raised concerns about other diversion programs before the county board, and pointed out that her office is not in any way mandated to continue participating in them.

“I want you to convince me why I should be a part of these programs, why they are a good idea,” she told supervisors. “That would be wonderful because it’s a very important responsibility.”

As the county’s top prosecutor, Wetzsteon said it’s her obligation to make a decision on each criminal case that “enhances public safety and the health of the community.” She stressed that the diversion programs are generally well run by dedicated staff members, but she’s frustrated that her concerns are not being heard.

“I’m trying to save the program, not destroy it,” she said.

Wetzsteon’s comments came after she gave the committee a rundown of the county’s diversion programs, which range from a new “deflection” program that targets people before they’ve even been arrested all the way to a post-conviction alternative for those facing prison time.

With the deflection program, which the DA’s office started running in October, potential participants are either referred by law enforcement or contacted following a drug overdose that required medical attention. The goal is to connect the person with substance abuse and mental health counselors so they can get help before their behavior lands them in the court system.

Since the DA’s office stated running the program a few months ago, Wetzsteon said they have received 13 referrals and are working to enroll at least 25 people by the end of April. The average wait time for someone to get assistance is just two days, she noted.

Other diversion programs, some of which have been around since 2007, try to intercept qualified defendants at various stages in the criminal justice process. Benefits of the programs included a reduced workload for the court system and faster restitution for victim of crimes.

However, for county prosecutors, Wetzsteon said the top priority is to make sure that diversion leads to better outcomes for public safety and victims than if the defendants had been prosecuted in a traditional way. She said the county makes a significant investment in every diversion case, including monitoring by outside companies, so prosecutors and other court staff need to make sure they are letting the right people enroll.

“Just because someone makes it through the program doesn’t necessarily mean it’s a success,” she said. “You have to look at the people who make it through the program and graduate just as much as you look at the people who failed.”

If someone would have made life improvements on their own without the need for a diversion program, Wetzsteon said that person should not have been enrolled in the program in the first place. On the other hand, if someone continues to commit crimes after completing the program, that can also be considered a failure, she said.

Recidivism rates for program participants are lower than the general population of criminal offenders, but there’s always a concern that habitual criminals will essentially use the diversion alternatives as a “get out of jail free” pass.

Wetzsteon said her office works closely with law enforcement to determine who are the best candidates for the diversion programs, based not just on their criminal records but on behavior that police are aware of that has not resulted in charges.

Daniel Diaz, an FBI special agent who works with the Central Wisconsin Narcotics Task Force, spoke to the committee about law enforcement’s role in identifying suspects for federal prosecution while also vetting potential candidates for diversion programs. He noted that police listen to thousands of hours of jailhouse phone calls, which helps give them a sense of a suspect’s suitability for diversion programs versus who view diversion as a “free pass.”

“Somebody that receives the benefits of these programs needs to feel like they won the lottery, not like they’re entitled to it,” he said.

Based on the investments being made, Wetzsteon said the county needs to maintain strict standards when deciding who qualifies for diversion.

“These programs are great,” she said. “We have to spend a tremendous amount of time and energy to make sure they stay great.”

DIVERSION DIALOG - Marathon County District Attorney Theresa Wetzsteon and special FBI agent Daniel Diaz spoke to the county’s Public Safety Committee last week about the county’s criminal diversion programs. The DA said she was concerned about the drug court considering a diversion for a defendant facing federal indictment.