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Building exits off the highway to mass incarceration: Diversion programs explained
By Leah Wang and Katie Rose Quandt Tweet this July 20, 2021
Our nation's mass incarceration crisis has led to far too many people locked up in jails and prisons. As public outrage grows regarding the unfairness of the criminal justice system, counties and municipalities are adopting a wide range of programs that divert people out of the system before they can be incarcerated, pitching these as solutions to reduce the number of people in confinement. But these programs are not all created equal, and the design and implementation of diversion can be wildly different in its impact on justice-involved people.
We envision the criminal justice system as a highway on which people are heading toward the possibility of incarceration; depending on the state or county, this highway may have exit ramps in the form of diversion programs and alternatives to incarceration. Diversion is a broad term referring to any means of exiting the criminal justice system without a criminal conviction, while an alternative to incarceration can be offered to someone who has been convicted.
The further someone travels down the highway, the more collateral consequences they will experience: a police encounter that may turn dangerous; the trauma of being booked; their mugshot published on the internet; massive amounts of time spent away from work and family for jail time or court appearances; the financial burden of bail and court costs; and a criminal record that generates numerous other challenges like exclusion from the workforce, ineligibility for public benefits, disenfranchisement, and denial of the right to serve on a jury.
The earlier someone can take an exit ramp, the more devastating impacts they can avoid—and the more we can shrink the massive footprint of the criminal justice system. This report provides a general overview of diversion and alternative-to-incarceration programs, and key differences in how they might alleviate (or complicate) someone's experience going through the system.
In an ideal world, a community would implement all or almost all of these programs, to help divert people at every stage. But when resources—financial or political—are limited, it is important that policymakers make choices that will have the largest impact. While all diversions are better than incarceration, the most powerful are the earliest interventions (which we're calling "Exit 1") that prevent encounters with police and the criminal justice system in the first place.1
As a person is caught up in the criminal justice system and heads toward a potential prison sentence, exit ramps may exist. But the farther someone travels before getting off the highway, the more negative consequences they accumulate. Only diversion programs existing at the first exit—community-based resources, housed outside of the criminal justice system—have the potential to help avoid all negative criminal justice consequences. The fifth and final exit ramp—alternatives to incarceration—still carries the consequence of a criminal conviction, and therefore does not offer an opportunity for true"diversion,"though it does prevent the harms and costs of incarceration. (Image by Kevin Pyle.)
As the Civil Rights Corps notes, "You shouldn't need to be arrested, let alone prosecuted and jailed, to receive social services." Most policing has little to do with real threats to public safety: The vast majority of people arrested repeatedly are not actually violent, and are more likely to simply have economic and health disadvantages that put them in more frequent contact with police. Police encounters also present a matter of life and death: 1 out of every 1,000 Black men should expect to be killed by law enforcement.
We've come to expect police to respond to so many different situations—emergency and non-emergency alike. In recent decades, the duties of police departments have expanded drastically; the Center for American Progress reports that "[Duties] now extend … to include tasks from treating overdoses and de-escalating behavioral health crises to addressing homelessness and … disciplinary concerns in schools." This latitude costs the public nearly $150 billion in policing expenditures and exposes nearly 1 million people to the threat or use of force by police each year.
Giving police such a wide scope of responsibilities is inappropriate and shortsighted, especially as many 911 calls do not require a law enforcement response. When pre-police diversion is possible, people avoid any collateral consequences of an arrest record, the experience of being arrested and booked, and the fallout of court proceedings and beyond.2 Any programming and support based in the community provides the greatest relief to the bloated system and to taxpayers.
Pre-police diversion refers to support and treatment within the community or a non-law enforcement agency that address underlying problems which increase the likelihood of police encounter: poor mental health, substance use disorder, homelessness, poverty, domestic violence, unemployment, and more. For each of these, we suggest programs that identify individual needs, use evidence-based practices, and do not involve police. Cities and counties should invest in civilian crisis response systems, voluntary substance abuse treatment, drop-in community centers, and anti-poverty initiatives.
It's difficult to capture exactly how many people or dollars are diverted pre-police encounter from criminal justice proceedings nationwide, but some evidence suggests the ounce-of-prevention approach is effective. Community-based interventions may contribute to reduced arrests or substance abuse, for example, and major organizations like Boys and Girls Clubs have been evaluated for their estimated benefits.
The movement to reimagine what "public safety" means has deeply compelling moral and financial arguments, and will undoubtedly involve non-law enforcement responses to our communities' needs.
Exit 2: Police-led interventions (pre-arrest)
Some diversion initiatives happen at the "pre-arrest" stage, allowing people to avoid the consequences of arrest and booking. These programs instruct or empower police officers not to arrest in certain situations, such as when someone with a substance use disorder violates a drug law. Instead, officers impose a lighter sanction such as a warning or refer the person they would otherwise have arrested to a service provider. These diversions avoid unnecessary arrests for low-level offenses that arguably should not be arrestable in the first place, such as drug charges, public order offenses, and drunkenness.
While police-led interventions do help people avoid most of the negative consequences of an encounter with the criminal justice system, communities already running these programs should look to transition them completely outside the police department. One of the most prominent pre-arrest diversion programs, LEAD (see sidebar for more information), has recently reworked its structure, allowing jurisdictions to choose to decenter police from the program.4
These programs can be helpful because: Pre-arrest diversion programs provide relatively early diversion, which helps participants avoid the lasting harms of an arrest record. In some cases, they may help individuals access much-needed services. On a larger scale, these programs reduce our reliance on arresting people with substance abuse or mental health problems, cut caseloads for overworked misdemeanor courts, reduce jail rosters, and allow police to defer to clinicians when appropriate.
These programs can be limited by design or harmful because: People diverted at this stage have already encountered police, which can be distressing, traumatic, and dangerous. The success of a pre-arrest diversion program requires the cooperation of police, so access to diversion may depend on individual officers and their biases. And often, the programs are designed and authorized to divert only those who meet specific requirements and who are accused of minor infractions—meaning that many others are left behind to continue through the criminal justice system.
Because these programs are positioned within law enforcement departments, they do not reduce the overall scope of policing, and they may increase the share of a municipality's budget that is controlled by police. And if police are interacting with and diverting people who would not otherwise have been arrested in the first place, this type of diversion can actually extend the criminal justice system's reach.
Pre-charge diversion initiatives enable prosecutors to postpone filing charges, and instead require the individual to complete a program or fulfill a set of requirements. Successful completion of a prosecutor-led program results in no charges, but failure to fulfill the requirements of the program means prosecutors can resume the normal court process, turning the individual into a defendant. These programs are generally optional for participants (in other words, they may instead choose to follow the default path through the criminal justice system), although participation fees and program capacity may block access for some people who wish to opt in.
Technically, this type of diversion can occur at one of two stages in the evolution of a criminal case: pre-filing,or before the prosecutor files formal charges, or post-filing, after the court process has begun but before a final case disposition. Completion of post-filing diversion program leads to the initial charges being dismissed without a trial.
Prosecutor-led diversion programs are very common (they're often referred to as "pretrial diversion" too, though we've reserved that term for judge-led programs), but their structures vary widely from jurisdiction to jurisdiction, and there are no national standards guiding their design and eligibility. Some prosecutors operate their own programming while others partner with community-based organizations. Program conditions often include mandated community service, substance abuse education or treatment, individual therapy, and payment of fines or restitution.
The nonprofit prosecutorial resource Fair and Just Prosecution offers several guiding principles for these diversion programs, including tracking outcomes and relying on clinical staff to develop evidence-based treatment plans. For that reason, the organization also advises that prosecutors interested in diversion look beyond their role and partner in initiatives outside the criminal justice system (such as Exit 1 interventions).
These programs can be helpful because: When pre-filing diversion is possible, people have an opportunity to avoid having something added to their criminal record. In contrast, when only post-filing diversion is available, any initial charges become part of someone's criminal record, and program completion will get the charges dismissed, but that outcome also appears on their record. Dismissed charges may be expunged later on, if the law allows.
Any time prosecutors can use utilize diversion, they relieve the burden on the court system, correctional facilities, and probation offices in their jurisdiction, in addition to sparing individuals the collateral consequences of a criminal record (yet there are painful exceptions for those with immigration circumstances).7 A 2018 study of five prosecutor-led diversion programs found that participants were considerably less likely to end up with a conviction than similarly situated defendants, and therefore also less likely to get jail time. Four of the programs also reduced re-arrests within the following two years.
These programs can be limited by design or harmful because: By this point, someone has already spent ample time tangled up in the criminal justice system being handled by police, booked into a jail cell, and informed of their potential case. Moreover, success depends on the cooperation of prosecutors, so their individual biases impact whether someone is allowed into the program.8
In addition to concerns inherent to the prosecutor-led model, some of these programs use concerning practices. Programs that focus on extremely low-level offenses leave out many people who would benefit from diversion from the path to incarceration, and can unintentionally expand the scope of the carceral system when people can't complete the program and are then prosecuted. The study linked above also found that some people in a group that did not participate in a diversion program ultimately had their charges dropped, suggesting that the diversion may have been an unnecessary burden for those who did participate.
Prosecutor-led diversion programs may also have unnecessarily strict requirements, setting up people to fail: those who slip up can end up with serious charges and incarceration. Addressing this point, Fair and Just Prosecution advises prosecutors to carefully consider whether requirements like full sobriety "are truly necessary" and whether a punitive response is appropriate for noncompliance. Diversion programs should not require compulsory treatment,9 nor include treatment programs designed or controlled by non-clinical staff.
Exit 4: Judge-led interventions (pretrial)
Even after a prosecutor chooses to bring charges, there may still be an opportunity for diversion at the court level. Problem-solving courts are intended to divert people with substance use or mental health disorders, and sometimes other circumstances, linking them to treatment and requiring them to meet certain conditions after they've entered a plea. Many states also give judges discretion to offer deferred adjudication to defendants, which is less focused on a specific underlying problem but allows someone to complete a "sentence" in the community to avoid a permanent conviction record and/or being sentenced to a term of incarceration.
If someone completes a judge-led diversion program, the charges to which they initially pled guilty are dropped and sometimes sealed; if they do not, their guilty plea will become a permanent part of their record, and a more typical sentence may be imposed. According to the Collateral Consequences Resource Center, one or both of these interventions is found in every jurisdiction nationwide.
There are more than 250 mental health courts around the country, which require defendants to enter treatment ranging from inpatient stays at psychiatric facilities to case management and therapy. Often, mental health courts operate with a recovery model, where relapse is expected. Conversely, drug courts tend to emphasize and require abstinence, raising the stakes for someone with a substance use disorder.
Other specialized courts focus on topics like homelessness, domestic abuse, and prostitution. All together, these courts operate as a "ubiquitous" response to social problems despite the data showing mixed results at best. Problem-solving courts should be just one component of a broader set of community treatment services and diversion programs.
These programs can be helpful because: Pretrial diversion is the last point at which people can avoid the consequences of a criminal conviction. Problem-solving courts can also connect people to resources and treatment that may help them avoid future encounters with the criminal justice system. There is some evidence that they reduce recidivism or re-arrest among participants.
These programs can be limited by design or harmful because: People diverted at this stage have already encountered police, been arrested and likely spent time in jail, and faced (and often pled guilty to) charges. Even without incarceration, this process is harrowing and expensive, and the diversion programs themselves require significant time and effort to complete. Other drawbacks of judge-led diversion include:
Problem-solving courts and deferred adjudication rely on incarceration as a sanction for non-compliance, meaning those who "fail" still end up behind bars. Because participants have entered a plea, they have waived their right to a fair trial and can receive up to the maximum sentence.
Drug courts and mental health courts are inherently limited in scope and do not address the systemic issues that lead people with substance use disorders or mental illness to be arrested and incarcerated in the first place, such as overcriminalization or the lack of available resources outside of the criminal justice system.
These courts can create an incentive for law enforcement to arrest people with mental illness—whom they might not otherwise arrest—in order to get them into treatment.
Problem-solving courts tend to exclude people charged with serious offenses; by doing so, they fail to actually divert people who would otherwise serve long prison sentences, reducing the potential impact on mass incarceration.
Conditions like fines and fees may be virtually impossible for low-income defendants to meet, leading to unequal results based on defendants' wealth rather than willingness to comply.
Many drug courts, in particular, set participants up to fail. A 2012 national survey found that half of them did not offer medication-assisted treatment, the medical gold standard for opioid dependence treatment. And the abstinence requirement represents a punitive approach to addiction. The Drug Policy Alliance has catalogued many other pitfalls of drug courts, including a lack of evidence supporting their treatment models.
Exit 5: Alternatives to incarceration (not true diversion)
The final exit before incarceration represents alternatives to incarceration, which are not diversion programs but still allow defendants to avoid confinement. These options, offered at sentencing, allow individuals to avoid or shorten time behind bars. However, participants still end up with a criminal conviction, along with all the negative consequences that come along with a conviction. Alternatives to incarceration include probation, house arrest/electronic monitoring, mandated community service, fines and restitution, and some restorative justice programs.
These programs can be helpful because: Keeping someone out of prison or jail saves taxpayer money, as correctional facilities are one of the most expensive components of the criminal justice system. Additionally, an alternative to incarceration avoids the trauma (and often, physical harm) of being incarcerated, and lowers the odds of re-incarceration.
These programs can be limited by design or harmful because: Probation typically comes with significant fees, a painful irony when we've found that two-thirds of people on probation make less than $20,000 per year, and almost 40% make less than $10,000 per year. For these people, the choice between paying their probation fee or their heating bill could impact whether they remain free or get locked up for "violating" their probation.
People facing violent felony charges are often excluded from many alternatives to incarceration. These common offense-based exclusions defeat the point of creating alternatives and leave many to serve excessive sentences (contrary to what many victims of violent crimes want).
Finally, people sentenced to alternatives to incarceration are still under correctional control, and those on probation run a very real risk of incarceration for technical violations, a costly practice that keeps people under the thumb of the carceral system. In this way, probation can simply be a slower route into incarceration, with strict requirements that set people up to fail.
Conclusions and questions to consider when designing your community's diversion program
The most powerful diversion strategies are those that shift people out of the criminal justice system as early as possible, those that allow people to avoid the long-lasting consequences of a criminal record, and those that are based on public health research and harm reduction principles. With that being said, no single diversion program will address every need or prevent every police encounter.
The landscape of diversion is vast, and the design and implementation of each program matters.
Our goal with this report was to describe these programs in broad strokes; it's not possible to describe these programs in detail, because, as the Center for Health and Justice explains, diversion programs "are inexorably local in nature, and are as unique as they are similar." In the end, communities will have to decide what diversion points (or "exits") are appropriate and feasible now and in the future.
And while communities should look into ramping up their Exit 1 interventions and support systems, political realities on the ground may create opportunities for other types of diversion. For example, a progressive prosecutor will likely be a strong advocate for pre-charge diversions (Exit 3) and for widening their eligibility criteria. A police department may be open to incorporating a co-responder model (Exit 2), perhaps as a step toward non-police response teams and budget shifts.
To help elected officials and the public ensure that their local agencies are making the best decisions possible, we suggest these questions to ask about current or proposed diversion activities:
Is this program diverting people as early as possible, before they can accumulate too many negative collateral consequences? If not, can the program's outcomes be used later on to demonstrate a need for additional, earlier diversion?
Does this program have a broad scope, or do specific eligibility requirements significantly limit who will qualify? Could your program accept, for example, people convicted of violent offenses, who already have among the lowest rates of recidivism, or "frequent utilizers" who are more likely to need help offered by diversion?
Will this program increase the budget of police departments or sheriff's offices? Are the people who will be implementing the program "bought in" to its purpose, and if not, how will the department ensure that its funding isn't redirected to police "business as usual"?
How will stakeholders be able to evaluate the program's success? Is there sufficient capacity to collect data regarding program design and participation? (Civil Rights Corps offers a concise checklist of data that can be collected.)
Will this program require someone to enter a guilty plea in order to participate and avoid incarceration? Is there some way to limit the collateral consequences faced by an individual, such as automatic expungement upon completion?
Will the operation of the diversion program be contracted out to a for-profit company? Even if not, will it rely on user fees for its funding?
For further reading
This report is intended to give an overview of diversion programs at each stage of the criminal justice process and to compare their potential benefits and limitations. For those seeking comprehensive resources that provide more examples, more statistics, and more nuance around the practice of diversion, we recommend:
National Institute of Justice (NIJ), CrimeSolutions Database: A national clearinghouse of rated justice-related programs and practices designed to assist program design and implementation
Center for Health and Justice at TASC, No Entry: A National Survey of Criminal Justice Diversion Programs and Initiatives: A 2013 report surveying diversion programs at similar "exits" and a substantial appendix listing national pretrial diversion programs
Center for Effective Public Policy and National Association of Pretrial Services Agencies, Pretrial 101: A series of twelve briefs outlining the purpose, implementation, and evaluation of pretrial diversion programs
The Sequential Intercept Model: A commonly used conceptual model developed in the early 2000s that outlines points of "intercept" at which people with mental health or substance use disorders can receive treatment and support, from community services through incarceration and reentry
Acknowledgements
All Prison Policy Initiative reports are collaborative endeavors, and this report is no different, building on an entire movement's worth of research and strategy. For this report, we wish to single out the contributions of Prison Policy Initiative alumna Alexi Jones, whose research into diversion programs formed the basis of this report and made it possible; our colleagues Wanda Bertram, Wendy Sawyer, and Peter Wagner for their feedback and editorial guidance; and illustrator Kevin Pyle for encapsulating the critical differences between diversion programs in a single image. Finally, this report was made possible thanks to the generous support of the John D. and Catherine T. MacArthur Foundation Safety and Justice Challenge, and the contributions of individuals across the country who support justice reform.
About the Authors
Leah Wang is a Research Analyst at the Prison Policy Initiative. She is the author of the organization's two recent briefings on the rise in deaths in state prisons and local jails. Prior to joining the Prison Policy Initiative, Leah was an analyst at the Massachusetts Department of Correction, and spent several years teaching and working with prison and jail education programs including Petey Greene and The New Garden Society.
Katie Rose Quandt is the Senior Editor at the Prison Policy Initiative, as well as a freelance journalist and writer/editor at Solitary Watch. One focus of her work at the Prison Policy Initiative is health; most recently, she co-authored a short report about the effects of incarceration on mental health. When states were releasing their COVID-19 vaccination plans in late 2020, Katie Rose wrote a briefing questioning why so few states were prioritizing people in prisons and jails, sparking a wave of news coverage across the country.
About the Prison Policy Initiative
The non-profit, non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. Through accessible, big-picture reports, the organization helps the public engage more fully in criminal justice reform. Its reports Does our county really need a bigger jail? and Arrest, release, repeat: How police and jails are misused to respond to social problems are specifically written for counties considering expansions of their police and jail systems.
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