Diversion from the Criminal Legal System

The Takeaway

Diversion is an alternative approach to an inherently punitive criminal legal system. It aims to provide a community response for people at risk of arrest due to substance use. Services can range from housing support and job training to treatment for substance use disorder. Diversion can be led by the community or law enforcement; however, the goal of diversion is to enable recovery by avoiding the legal system and replacing it with supportive services. This is typically incorporated into the community and embedded with people with lived experience. 

The Evidence

The number of diversion programs has increased with the goal of reducing the number of people in the criminal legal system and providing resources to facilitate successful rehabilitation. Diversion programs exist to address mental health concerns, housing insecurity, as well as substance use disorders (SUD). Diversion has been proven to reduce recidivism, the likelihood of repeating a criminal offense. These programs can reduce days spent in jail, hospital stays, and total criminal legal system costs

There are many sub-types of diversion programs, but they generally fall into two categories: pre-booking (alternatively, pre-charge) diversion programs which are led by police, and post-booking diversion programs which are led by courts or prosecutors. Pre-booking programs involve an individual who has not yet been charged with an offense, diverting them to treatment without further involvement from the criminal legal system. In these pre-booking diversion programs, police officers respond to a person in crisis, determine their need, and then divert them to a recovery/treatment center or a community-based organization that addresses substance use and/or mental health. The role of police officers is to act as a liaison between the individual needing help and the treatment center. Post-booking programs are designed to include diversion once an individual has been arrested and charged with a criminal offense. 

Pre-booking and post-booking diversion programs vary in their goals. While pre-booking diversion offers early intervention and access to treatment, post-booking diversion programs require conditions to access treatment, such as pleading guilty and accepting formal probation. This is the fundamental difference between these two types of programs.

Individuals should never feel compelled to plead guilty to criminal charges in order to access treatment for their illness. Additionally, diversion programs should not sanction individuals who do not adhere to treatment. Recovery is a process that is unique to each individual. It is common for individuals to experience a recurrence of symptoms and return to substance use while working toward recovery from a substance use disorder. 

Historically, the criminal legal system has responded to substance use disorder through the criminalization of substances and the incarceration of individuals who possess or use illegal substances. The development of diversion programs has signified an important shift, highlighting the view that addiction treatment must be addressed through the health care system. Although most models of diversion programs include police officers as the initial point of contact, the goal of diversion programs is to be deeply incorporated into the community and the health care system, including treatment centers. 

Diversion is important and necessary. The prison system is overwhelmed: 46% of people in federal prison are incarcerated due to drug offenses. Mass incarceration is a public health issue that must be addressed. Access to evidence-based treatment is essential for anyone with a substance use disorder—and the best people to shape and provide that treatment are medical professionals and communities that can provide the best resources and care to the individuals who need it. Diversion programs can be successful when the individual provides consent and does not face criminal repercussions from experiencing a recurrence of their substance use. By centering, understanding, and responding to the needs of people using substances, diversion programs can reduce the harm caused to vulnerable populations by the criminal legal system and ensure more people have the choice to enter successful treatment and eventual recovery. 

September 2021

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