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Unbalanced Scales of Justice: How Ice is Preventing Noncitizens from Having Equal Access to Diversion Programs and Therapeutic Courts


  • Sara Elizabeth Dill



This article examines the evolution of the criminal justice system to focus on rehabilitation, deterrence, and punishment through the creation of therapeutic courts and diversion programs that benefit society and decrease recidivism rates. However, unknown to many, these programs are unavailable to an overwhelming majority of noncitizens due to pretrial detention solely as a result of an immigration detainer, resulting in an inequity with a high personal cost to the individual, his or her family and community, and society as a whole. This article will discuss the harsh immigration penalties associated with criminal convictions or other lesser contacts with the criminal justice system as well as provide recommendations for diversion programs and therapeutic courts so that participation does not create severe collateral consequences, as it often does with noncitizen defendants. By allowing all eligible defendants equal access to therapeutic courts and diversion programs, our system will also have a positive impact on children and families. Not only will defendants receive treatment and skills necessary for reentry to the community, but they will remain in the United States with their families.

Key Points for the Family Court Community:

  • The immigration penalties of criminal convictions (or even arrests) have become so severe that deportation has become the norm, rather than the exception
  • Diversion programs and therapeutic courts provide rehabilitation and treatment and often do not result in immigration penalties, yet are frequently unavailable to noncitizens solely due to immigration issues
  • Family ties no longer provide relief in a majority of cases where an alien has criminal issues, thus creating a system where immigration interferes with issues of custody, child support, and marriage

Practitioner's Key Points:

  • Provide attorneys with a background in the issues facing noncitizens in the criminal justice system, including the harsh immigration penalties that result from a conviction
  • Explain the importance and benefits of therapeutic courts and diversion programs
  • Discuss the inequities in access to justice that result when noncitizens are facing criminal charges but have an immigration detainer, preventing admission into therapeutic courts or diversion programs