Administrative Judge James Burge said a June decision by the 9th District Court of Appeals declaring the court-run program unconstitutional left he and his fellow judges without the legal authority to continue the program.
Burge said he was disappointed. “I thought it was doing some good,” he said.
County Prosecutor Dennis Will has repeatedly challenged the legality of the court-run program in both the appeals court and in litigation he filed against the judges in the Ohio Supreme Court in April.
Will has consistently argued that diversion programs, in which criminal charges are dropped after a defendant completes a stint on probation, are the sole province of prosecutors under Ohio law.
The appeals court agreed in its June ruling, writing in a split decision that the judicial diversion program violated the separation of powers and “usurped the authority of the prosecuting attorney to maintain a pretrial diversion program.”
The judges, who had admitted about 20 people to the program during the four years it existed, had contended that court-run diversion programs were legal.
Burge has said the judges created their own program because of concerns with how Will was operating his own diversion program. The judge said that because Will was effectively giving veto power to victims, it meant defendants facing the same charges could end up facing vastly different outcomes in their cases based on who their victims were.
Will has argued that victims should have a say in what happens to those who have wronged them.
Will said Wednesday that the decision to shutter the court-run program, which he learned about this week, brings with it unanswered questions, including what will happen to those who have already been admitted to the program or completed it.
Burge said he plans to sentence those defendants he admitted to the program, although if they want to he’ll probably allow them to withdraw the guilty plea that was a prerequisite to get diversion.
Will also said he plans to allow the matter to play out in the Ohio Supreme Court to see where the state’s high court comes down on the matter because there still are questions about whether the judges acted without the authority to do so.
County Common Pleas Judge James Miraldi, who never used the diversion program, said he and the other judges were acting in good faith when they created a program that was similar to something that existed in another county and had been upheld on appeal.
But he also said the judges have other issues they’re dealing with, including a dispute with the county commissioners over the location of the county’s Adult Probation Department, that they need to focus on.
“We lost,” Miraldi said. “That’s what they said, so let’s drop it and move on.”
Burge said if the Supreme Court were to rule that court-run diversion programs are legal, he would be open to launching the program again.