Get-Out-of-Jail Program Comes With $950 Catch!

In the spring of 2017, Taja Collier received a sternly worded letter from the prosecutor in Maricopa County, Ariz., where a few months before she had been caught with a small amount of marijuana.

The letter offered two options: up to two years in prison and a maximum fine of $150,000, or something called the Marijuana Diversion Program, where she could avoid prosecution altogether — if she could pay $950.

Ms. Collier, 21, then a college sophomore, picked Option 2. But she decided that to meet the program’s requirements of multiple drug tests a week in Phoenix, she would have to forgo school an hour away. Then she struggled to come up with the initial payments on her part-time wages from Target and had to repeatedly postpone her start date.

She ended up selling her blood plasma to pay the additional cost of drug tests, about $15 each, according to a lawsuit filed Thursday night in federal district court in Phoenix.

Even when she became homeless and slept on a park bench, Ms. Collier was not told that she could apply for a reduced fee. Instead, her case worker responded to her pleas with an email, according to the court filing: “Since you are on your FINAL NOTICE, any missed test past this point will result in program termination. So I am happy to hear that you are going to do whatever is possible to test next time.”

Ms. Collier failed the program — not because she missed a drug education seminar or flunked a drug test, the court filing says, but because she could not afford it. A court gave her a second chance, but she lost the money she had put in, including an initial fee of $150, and had to pay all over again.

Diversion programs like the one she entered have become increasingly popular, offering an alternative not just to incarceration, but also to the lasting damage of a criminal record. The programs, usually offered to those charged with low-level or nonviolent crimes like drug possession and shoplifting, allow defendants to sidestep the courts altogether if they can meet a variety of requirements, which can include drug treatment, anger-management classes, finding a job or even getting a G.E.D. They have spread to almost every state and become a campaign promise in district attorney races.

But a lawsuit filed Thursday in the United States District Court in Phoenix, seeking monetary damages for participants in the Maricopa County program, paints a picture of the darker side of diversion.

Many of the programs are entirely at the discretion of the local prosecutor, and while some are free or low-cost, others come with a hefty fee and can amount to pay-for-dismissal schemes, available only to those with money. Diversion fees have enriched city and prosecutor coffers, paying for retirement parties, travel and business attire. Promises of waivers or fee reductions for the poor can be nothing more than lip service, a New York Times investigation in 2016 found.

The lawsuit, filed on behalf of Ms. Collier and two other plaintiffs by Civil Rights Corps, a civil rights law firm based in Washington, says the county attorney’s office falsely told people charged with first or second marijuana offenses, including Ms. Collier, that they could be imprisoned. In Arizona, they cannot.

The suit says that defendants who could pay the full $950 or $1,000 fee for diversion, plus the cost of drug tests, could be finished in three months, while those who needed more time to pay had to stay in the program longer, thus racking up more costs.

“The consequences are the worst for the poorest people in the program,” said Katie Chamblee-Ryan, a lawyer with Civil Rights Corps. “Those people risk being expelled from the program and prosecuted for a felony just because they can’t afford a drug test. People who can pay for the tests can walk away without a criminal conviction.”

In a written statement, the Maricopa County attorney’s office called the lawsuit “self-indulgent” and said it remained committed to steering drug offenders into treatment.

“Our drug diversion program has helped thousands address the scourge of substance abuse for decades,” the statement read. “The outrageous characterization proffered by the ironically named ‘Civil Rights Corps’ is ill-informed and misguided.”

Arizona appears to be the only state in which a person can be convicted of a felony offense for first-time possession of even a very small amount of marijuana, said Jolene Forman, a staff lawyer at the Drug Policy Alliance. The stiff penalty gives the prosecutor, Bill Montgomery, an unusual degree of leverage.

Mr. Montgomery, a Republican first elected in 2010 and re-elected by a relatively small margin in 2016, is well known for his opposition to any relaxation of marijuana laws. He regularly warns of the risks of addiction to pot and campaigned against a referendum to legalize recreational use in 2016, which lost by less than three percentage points.

Before that, Mr. Montgomery had threatened to prosecute the parents of a 5-year-old boy who gave him marijuana extract to treat severe seizures, saying that extracts were not covered by Arizona’s medical marijuana law. During a debate over legalization in 2015, he called a Vietnam veteran who used marijuana “an enemy.”

At the time, The Arizona Republic reported that legalization would cost Mr. Montgomery’s office millions in diversion fees. The newspaper said the office had collected an average of $1.6 million annually from diversion fees and that three-quarters of defendants referred to the program were sent on marijuana charges. Participants have to take a three-hour drug education seminar and, if they test positive for any other drug, get substance abuse counseling. Drug tests are random; participants have to call each morning to see if they are required to come in that day.

The county attorney’s website says that “research has demonstrated that people are more successful in treatment programs if they have a financial stake in their treatment,” but that it will “ensure that willing participants are not refused due to a genuine inability to pay.”

But the lawsuit said that in practice, the $950 program fee was not reduced or waived; only the cost of drug testing could be reduced.

One of the plaintiffs in the lawsuit, Mark Pascale, 60, is disabled and lives on federal benefits and food stamps. He was denied a reduction in test fees, the suit says, because he owned a computer and paid for internet service.