Can I appeal a denial of ARD?

In Pennsylvania, the prosecutor, normally the district attorney or an assistant district attorney, determines whether or not a person is approved to participate in ARD.  The person seeking admission into ARD must normally submit an application or some request to the prosecutor for consideration.  If the prosecutor approves ARD, then everyone is happy.  But what happens if the prosecutor says no.

No Appeal of ARD Denial

When people think of the court system, they believe that the judge always has the ultimate decision making authority.  In the context of an ARD denial, people expect that a judge should be able to review and overrule the denial of ARD.  Regrettably, that is not how it works in Pennsylvania.  In the case of Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985), the Pennsylvania Supreme Court wrote that “the decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.”  The language from Lutz basically says that the district attorney’s denial of ARD cannot be overruled by a judge UNLESS a person can show that the prosecutor’s denial was based upon an illegal reason, such as person’s race, religion, gender, or sexual orientation.  Simply stated, it is the district attorney and NOT the judge that makes the ARD decision.  If the prosecutor denied ARD for an illegal reason, a defense lawyer can file a motion and try to convince a judge to overrule the judge’s decision.  District attorney’s normally state that ARD was denied based upon the severity of the charges or the fact pattern involved, claiming that the person’s conduct was too bad.  While the defense may disagree with the prosecutor’s assessment of the case and ARD decision, the decision is not based upon an illegal reason.  Therefore, appeals of ARD denials for review by a judge have an extremely low probability of success.

ARD Reconsideration

While a person does not really have the right to appeal a denial of ARD, meaning a right to have a judge review and overrule the prosecutor, it is possible to ask the district attorney to reconsider the denial of ARD.  In some cases in which ARD is denied, the defense attorney may work with the client to prepare a mitigation package.  Mitigation packages contain things such as letters of recommendation or reference, resume, school transcripts, academic or life achievements and awards, and evidence of involvement in the community.  The purpose of the mitigation package is to show the prosecutor that the client is a good person, that the criminal conduct is outside of the client’s normal character, and that the client can benefit from the rehabilitative aspects of ARD.   The package shows that the client is deserving of a break.

ARD reconsideration requests can be used successfully to obtain ARD in some cases.  An experienced criminal defense attorney is often familiar with the district attorney that considers ARD and thereby knows which things to emphasize in the ARD reconsideration package.  The attorney can also provide guidelines for letters of recommendation.  By knowing the prosecutor’s preferences, an experienced lawyer has a higher chance of obtaining ARD reconsideration and ARD approval.  With that being said, there are some cases in which the prosecutor will not approve ARD.  In such a situation, the person can either negotiate a plea resolution with the prosecutor or proceed to trial.