Tribe: Oglala Sioux Tribe
SECTION 9.31 DEFERRAL OF PROSECUTION UPON SUCCESSFUL COMPLETION OF A PRE-TRIAL DIVERSION PROGRAM.
1. After an offender is charged for an offense under this subchapter the Department of Social Services and the Court official shall determine whether or not the offender is eligible for the pretrial diversion program, but only after the alleged offender has admitted to the offence(s) with which he/she is charged.
2. If it is determined that the offender is eligible for this program, then the offender shall be evaluated by a mental health professional which evaluation shall be supervised by the Department of Social Services. The evaluation shall include information on the treatability of the offender. The mental health profession should be agreed upon by the Court official, the case representative of the Department of Social Services and the attorney for the offender, Court official and the case representative of the Department of Social Services shall select the evaluator and the attorney for the offender shall have the right to have a second evaluation done. Copies of the report, of both reports, shall be sent to the Court official, the case representative of the Department of Social Services and the offender’s attorney.
3. If the results of the evaluation(s) is such that the Court official and the case representative of the Department of Social Services shall recommend treatment and pre-trial diversion, a written agreement shall be drawn by the Court official for presentation to and approval by the Court.
4. If, after the initial admission to the offense charged, the offender is not accepted for deferral of prosecution and diversion herein, then normal judiciary procedures will be followed as if no admission had been made.
5. The agreement for pre-trial shall include the following conditions: A. The offender is not to engage in any activities which are or conduct which is related in any manner to the offense of offenses for which the person was charged. B. The offender is to participate in a supervised rehabilitation program which includes, but is not limited to counseling and treatment. C. The offender is to pay, in a manner to be worked out by all parties, for all counseling and/or treatment of his/her entire family and the victim’s entire family, taking into consideration the offender’s ability to pay; D. The offender is to pay court costs, including the cost of any court-appointed attorney; E. The offender is to reside outside the home in a case of incest until the determination is made as to his/ her method and time of return to the home; F. The offender is to be in counseling and/or treatment in a program specified by the court official and the case representative of the Department of Social Services for an unspecified period of time until it is determined by a mental health professional that the offender is capable of functioning without any further incident being likely; G. The offender shall abide by any other terms and conditions as may be agreed upon by the court official, case representative of the Department of Social Services and the offender’s attorney. 6. Upon an agreement being worked out by all parties, the offender shall appear before a Tribal Judge, who shall ascertain on the record the following; A. Whether or not the offender understands the diversion process; B. Whether or not the offender understands that the Court may revoke the diversionary program, upon recommendation by the Court official and the case representative of the Department of Social Services, and the offender be sentenced without trial upon the admission entered at the beginning of the diversion process, without any record of this proceeding being made public and without credit for any time spent in the diversionary process; C. Whether or not the offender understands that revocation of this process would be warranted upon any deviance from the terms and conditions of the written agreement and any others laid down by the Court; D. Whether or not the offender understands that by participating in this process and admitting to the offense he/she waives the right to a speedy trial and any rights under the Fifth Amendment to the United States Constitution. 7. Upon the Court’s determination that the offender understands all of the items mentioned in Section 5, all parties, including the Court official, case representative of the offender, shall sign the written agreement, and then shall each be given a copy.
At the end of two years, from the date of the agreement signing, or earlier if recommended by the Court official and the case representative of the Department of Social Services, the offender shall be released from the diversionary program upon completion of all terms and condition of the written agreement, and upon the written motion of the Court by the Court official, which motion shall be granted by the Court, and the whole record of the proceedings shall then be sealed forever. This record shall then only be accessible to the Court official and the Court if the same offender commits a similar offense in the future.
Read Full Text of Oglala Sioux Tribe Juvenile Code Section 9.31