Building exits off the highway to mass incarceration: Diversion programs explained

by Leah Wang and Katie Rose Quandt

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.

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. (Image by Kevin Pyle.)

Exit 1: Community-based services (pre-police encounter)

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 in 1,000 Black men will be killed by law enforcement in their lifetimes.

Many 911 calls do not require a law enforcement response. 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. Any programming and support based in the community provides the greatest relief to the bloated system and to taxpayers.

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.

The success of a pre-arrest diversion depends on police officers' cooperation—and personal biases.

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.

Exit 3: Prosecutor-led interventions (pre-charges)

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.

Programs that focus on extremely low-level offenses leave out many people who would benefit from diversion. 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).

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.

Problem-solving courts should be just one component of a broader set of community treatment services and diversion programs. 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.

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.

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?

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For information about each diversion stage and examples of each exit in practice, as well as footnotes, acknowledgements and additional insights, see the online version of this report.