Topic: Diversion

The last several years have ushered in a seismic shift to Los Angeles County’s criminal justice landscape. Home to the world’s largest jail system, LA County achieved an unprecedented 25 percent decline in its jail population–the largest in the nation during the height of the COVID-19 pandemic. While the overall number of people in jail decreased, the percentage of people of color and people with mental health needs behind bars in LA increased. This changing composition mirrored a national trend and illustrated a key lesson: without a parallel effort to promote racial equity and provide safe, community-based care for people who need it, reducing jail populations may actually worsen disparities.

To address this, LA County—a grantee in the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge—announced a new vision of “Care First, Jails Last” and deepened its investment in community-based support for vulnerable populations and alternatives to incarceration. LA County also launched the Justice, Care, and Opportunities Department to consolidate most of these efforts under one roof.

As members of the Center for Justice Innovation (The Center) team, we are technical assistance partners in the Safety and Justice Challenge and worked with LA County to expand their alternatives to incarceration with particular emphasis on equity. Inspired by the learnings from this work—and grounded in our long history of launching and operating diversion programs—our West Coast Initiatives team authored a new report. The report offers concrete insights to inform the development of equitable diversion programming around the country. For practitioners seeking to create diversion programs, this document offers advice on designing early alternatives to incarceration, leveraging data to identify and connect with target populations, and working towards racially equitable outcomes.

We collaborated with LA County to launch two initiatives—the Rapid Diversion Program, which is court-based, and the Prefiling Diversion Program, which is based in law enforcement stations. Both programs aim to reduce the use of jail by connecting participants to safe, appropriate, and community-based care.

While successful diversion programs can safely reduce the use of incarceration, special care must be taken to ensure that these programs are carried out in an equitable way. We hope the insights of the report can provide guidance for developing diversion initiatives that bridge the gap between legal systems and communities while caring for vulnerable populations.

The first section of the report offers tips for developing the essential components of an early diversion program. Recommendations include:

• Create infrastructure to divert people at the early stages of a case.
• When determining eligibility criteria, prioritize the client profile over charges. When creating diversion programs, justice partners typically determine charge types to include and exclude in programs. Instead, we suggest program partners determine the profile of people they want to serve—for example, mental health, people with three or more arrests/system contacts, young people, race and ethnic groups that are disproportionately represented, etc.—and let that guide program development.
• Make charge-based exclusions (sex offenses) presumptively instead of categorically ineligible. This means that instead of having categorical exclusions based on what people may be charged with, presume people are eligible for programs and, when someone is facing a presumptively ineligible charge, allow for discussion on a case-by-case basis.
• Even within the same municipality, recognize that each diversion site may operate differently and have a distinct culture.
• Seek out cross-sector collaborations and expertise in the program planning phase.

The opportunity to provide community-based care to people with unmet social service needs can happen at stages that far precede a criminal conviction—any time before a criminal case is adjudicated, and indeed, even before criminal charges are filed. For example, LA’s Prefiling and Rapid Diversion Programs utilize police stations and courts as potential off-ramps from the traditional legal system path.

Both programs pursue a common objective: to expand early interventions for people with unmet needs rather than continued detention or release without any supportive resources. To accomplish this, LA located behavioral health care professionals in the jails and courthouse. For Prefiling Diversion, this meant physically converting unused breathalyzer rooms and offices into spaces for care by placing service navigators in the station. Service navigators find programs and help people enroll in them and understand how to get connected to the program (i.e. when and where to go for intake, whom to call for questions). The Rapid Diversion Program embedded pairs of service navigators and clinicians in courthouses.

Four roles can improve the diversion infrastructure:

• Mental Health Clinician—screens candidates for behavioral health conditions and appropriate level of services for the behavioral health program someone will need.
• Service Navigator—identifies healthcare and social service needs, finds local programs and providers, and connects participants to these organizations and services.
• Case Manager—supports participants one-on-one. Often the main point of contact for program participants, case managers provide referrals for continuing needs, such as education, employment resources, benefits, and housing, and help participants stay engaged in the program.
• Driver—takes participants to their agreed upon destinations, oftentimes directly from the police station or courthouse to appointments, referred services, and future court dates. This is especially important for jurisdictions where transportation equity is a challenge. Although the driver’s primary role is to transport program participants, the driver frequently interacts with program participants and serves as an additional level of support.

Building these roles into any diversion program—and locating these professionals at the booking station or courthouse where possible—can help ensure that people with specialized knowledge connect participants to resources in a coordinated way. Interactions with program staff are also supportive touchpoints, which is made possible by hiring staff who understand the needs of participants and want to help. This includes people with lived experiences (including families impacted by the criminal justice system), previous program graduates, and people with clinical backgrounds. Remaining intentional about including and staffing each role, especially case managers and drivers who interact with participants frequently—can make even the mandatory components of diversion programs motivational.

The second section of the report includes recommendations for using data to promote equitable practices for diversion. The report stresses the need for prioritizing data collection as a critical tool in ensuring equity. Data analysis can help to identify underlying needs and shape the design process prior to program launch. After launch, a consistent flow of data among partners is necessary to sustain the program and gives planners the ability to adjust the program as needed.

Recommendations include:

• Use relevant and detailed data at the planning stage to ensure equity and effectiveness of programming.
• Review program performance data on an ongoing basis to ensure the right people are being served.
• Make data planning a team effort.
• Clarify roles and responsibilities around data management.

When launching a program meant to achieve equity, program planners should learn how to meet the needs of the desired population. Instead of looking at the types of charges to divert, examine who is being charged and any trends that can inform the demographic to serve (e.g. people who are unhoused but arrested for quality of life offenses, or people arrested on a drug offense but who are excluded based on prior drug convictions). Having a better understanding of common issues—not just charges—that people face can radically shape programming.

In addition to using data on the front end of design, the report recommends reviewing program performance data on an ongoing basis to ensure program efficacy and equity. Recurring reviews should include program staff who can speak to participants’ growth in the programs, especially to help the program collaborators understand ways to improve and sustain the program so it continues to have its intended impact.

Many partners in Los Angeles County make the Prefiling and Rapid Diversion Programs possible, including the LA County’s Justice Care, and Opportunities Department,the Offices of the Los Angeles County Public Defender and Alternate Defender, the Los Angeles City Attorney’s Office, and Los Angeles County District Attorney’s Office, the Department of Mental Health, Project 180, and Exodus Recovery, Inc.

New research by Justice System Partners supported by the MacArthur Foundation’s Safety and Justice Challenge (SJC) shows the positive impacts of police-led deflection strategies on jail reduction efforts. Overall, “deflection first, arrest rare” as a primary policy for eligible offenses helps reduce criminal legal system involvement and improve equity by connecting individuals to the services they need. It no longer makes access to treatment conditional or contingent on arrest.

Download the report here. 

Deflection is different from diversion. Diversion programs make use of pending criminal charges as the mechanism to elicit treatment initiation and compliance from people living with severe mental health disorders and substance use disorders. Although diversion programs do not always include a formal booking to jail, the person does technically enter the legal system’s front door. In contrast, deflection programs entail no criminal legal system involvement beyond the interaction with the police officer in the field. There is no mechanism to coerce treatment initiation or compliance beyond an individual’s own wishes to enter a program. If an individual ultimately decides not to participate in the program they are referred to, there are no legal consequences. Police-led deflection programs also provide police agencies an opportunity to return to the streets and answer calls from 911 more quickly because transporting individuals to community services can take substantially less time than booking an individual in jail. Combined, police-led deflection can make police agencies more efficient while eliminating the collateral consequences of the legal system on individuals.

Police-led deflection allows officers to use discretion to replace arrest with outreach to community-based service providers for select offenses. It transforms police contact into opportunities to broker community resources, especially for individuals with severe mental health disorders and substance use disorders. It is key that we understand how deflection programs work in practice if we are going to improve and expand these programs, reduce jail populations, and improve equity and access to care by connecting people to the help they need.

The goal of the research was to understand how deflection works in Pima County, AZ, and in Charleston County, SC—two SJC sites. We sought to understand how police make decisions about who to deflect and how deflection to a local crisis center impacts people’s subsequent experience. In 2011, Pima County built the Crisis Response Center (CRC) with county bond funds. It is part of the Banner-University of Arizona Medical Center South Campus. The CRC is a short-term inpatient unit with a maximum length of stay of five days and has a “no wrong door” policy – which means they accept nearly everyone, except individuals who require hospitalization, from any law enforcement agency in the county. Similarly, Charleston County runs the Tri-County Crisis Stabilization Center (TCSC) which is a ten-bed voluntary adult crisis center embedded within the Charleston Drug and Alcohol Center where individuals can stay up to 14 days. Both counties’ crisis centers provide immediate treatment options and psychiatric care for individuals.

In Pima County, when people receive at least two voluntary deflections to the local crisis center, they are more likely to continue agreeing to subsequent deflections and, each time they return to the crisis center, they stay longer. In Charleston County, two-thirds of individuals deflected to the local crisis center had a previous case with the county’s mental health department, showing that both police and service providers are often interacting with the same people. These findings suggest that police-led deflection can help connect or re-connect individuals with treatment while reducing the number of individuals who are brought to jail—effectively creating a parallel treatment open door. Importantly, these repeat access points to treatment reflect research that suggests people need multiple opportunities to access treatment services before agreeing and engaging with the program. In this way, police-led deflection, particularly for individuals who have disproportionate police contact, can transform pathways to jail into pathways to the help they need for individuals historically excluded from access.

A parallel treatment open door does not mean failure to initiate or complete treatment. The treatment open door acknowledges the complexity and nuance of treatment and reflects the research about the need for multiple opportunities to remain engaged. When police policy allows multiple deflections of the same individuals, as in Pima and Charleston Counties, it means every interaction with individuals is another opportunity to engage them in treatment while eliminating the collateral consequences of the legal system and jail for these vulnerable populations.

In both counties, if the offense is eligible, the policy allows police to offer deflection to an individual regardless of how many times they offered deflection to the individual in the past. This means that while the policy itself reflects the research on multiple opportunities to engage in treatment, police in practice have the ultimate decision-making authority to deflect or arrest. As a result, police hold a lot of decision-making power for triaging people out of the legal system revolving door, and into a treatment system revolving door. As we continue to unpack how officers make decisions about who to deflect and under what conditions, it is important to consider the intersection of race, gender, and disability and how that impacts officer decision-making about who is “worthy” of deflection.

Officers in Pima County reported people’s willingness to start treatment as the most critical factor when deciding to deflect to a community-based resource. When people did not want to initiate treatment, officers tended to rely on arrest, even when they knew that jail would not help the individual. But the ability to deflect for certain eligible offenses means that the police have determined that no arrest is an acceptable response. This tension demands a critical examination: If people do not wish to go into treatment, are there other ways officers can diffuse and handle the situation without relying on arrest?

Officers in Charleston County cited victims’ wishes—including those of business owners—as the most critical factor when deciding whether or not to begin the process of deflection. For example, when victims remain at the scene and want police to arrest the individual, even when the offense is deflection-eligible and the officer recognizes jail is not helpful, police expressed feeling inclined to defer to the victim and make the arrest, anyway. This means victims are, in part, driving who is offered deflection and potentially contributing to disparate deflections. As such, we must critically examine the role of victims in the deflection initiation process and consider how victims’ own perceptions of justice and implicit bias can temper the positive impact of police-led deflection programs.

“Deflection first, arrest rare” as both policy and principle connects vulnerable individuals, who are historically excluded from the services they need, with easy access to treatment. It also lessens opportunities for implicit bias, determinations of “worthiness,” and non-clinical judgments about readiness for change to impact the decision to deflect. When agencies distance themselves from jail and deflect as the primary response, and do so for everyone, they no longer make access to treatment conditional or contingent.

A new R Street Institute report supported by the MacArthur Foundation’s Safety and Justice Challenge explores the successful implementation of pre-arrest diversion strategies in three conservative communities. Such strategies respond to challenges facing law enforcement agencies across the country including staffing shortages, negative public perception, overpopulation in jails, increases in violent crime, and court backlogs.

While criminal justice reform can be a politically charged term, we found that several conservative jurisdictions champion pre-arrest diversion as a way to support law enforcement and to remain fiscally disciplined. These jurisdictions have prioritized police time and resources, enabling law enforcement to deal with serious crimes while simultaneously rebuilding community relationships. They have also effectively diverted low-level offenders while balancing individual rights and public safety. The paper spotlights three jurisdictions that employ at least one diversion strategy, and in so doing, reveals how the traditionally conservative values of public safety, fiscal responsibility, and limited government interference are at the core of such programs. The paper also explores how to overcome challenges around starting diversion programs.

Law Enforcement Assisted Diversion (LEAD)— Cheyenne, Wyoming

Police-initiated diversion gives officers the opportunity to refer someone to intensive case management outside the criminal justice system rather than cite or arrest the individual for a crime.

Laramie County, Wyo., where Cheyenne is located, has been particularly successful in implementing Law Enforcement Assisted Diversion (LEAD). The community explored this option after finding that prosecuting and jailing individuals with behavioral health needs was ineffective in improving public safety. Officials and professionals merely saw a “revolving door” of the same individuals. Further, Cheyenne had seen a steady increase of mental health calls, violent crimes, and overdose related deaths; they needed to try something different.

When the program first began, some officers were hesitant to refer individuals to LEAD. In fact, one lieutenant at the Cheyenne Police Department feared LEAD, “wasn’t holding people accountable and just allow[ed] people to screw up with no consequence.” But many officers gradually saw the positive results. The lieutenant who initially was a skeptic eventually became “all in.” Officers realized that even if individuals were being arrested, they returned to the streets upon release with no support or services in place to help them change behaviors, with many returning to drug use or other destructive activities. LEAD has been a positive step for these individuals. In fact, officers tracked how many contacts they were having with people who were frequently arrested and found after a LEAD referral, officers had not talked to many of these individuals in months. One individual said the LEAD program saved his family member’s life.

Co-responder Model— El Paso County, Colorado

Though police officers generally do not have the training to handle mental health crises, many communities rely upon police to handle such issues. In an effort to support law enforcement in these situations, many communities have implemented co-responder programs. In a co-responder model, a behavioral health clinician (and in some models, emergency medical personnel) accompany law enforcement on patrol.

The sheriff’s office in El Paso County, Co. formed their own co-responder program, the Behavioral Health Connect Unit (BHCON), in 2017 after realizing they needed to reduce jail intake rates. When researching how to reduce the jail population, they realized that a high number of incarcerated individuals suffered from mental health issues. The BHCON team now responds to mental health crisis calls as well as low-level crimes in which it is clear that the individual’s mental health crisis—rather than criminal intent—is the cause for the criminal act.

This immediate response to someone in crisis has resulted in a reduction of expensive arrests and jail admissions as well as a reduction in mandatory psychiatric holds (often referred to as a “72-hour hold”) that are often done in hospitals. In 2021, BHCON responded to 1,154 calls for service. From those calls, BHCON diverted 99 percent from jail and 85 percent from the emergency department. At a time when hospitals are having to divert patients (due largely to COVID-19), saving hospital space is essential. BHCON has also relieved law enforcement of having to rely on the jail as a de facto mental health facility when an individual does not meet the threshold for a mandatory psychiatric hold.

Community Responders— St. Petersburg, Florida

Too often, law enforcement is responding to noncriminal calls where their presence is not necessary. Community Responders (or Civilian Response) takes the co-responder model and removes the police officer entirely. That is, community responders divert individuals from the criminal justice system by having trained, non-law enforcement professionals respond to certain calls for service that do not require a gun and a badge.

This model is the most effective at reserving police resources for the most dangerous crimes while also lowering the potential of escalating a situation by removing the presence of law enforcement. Instead, dispatch alerts community responders who have backgrounds and specific training to help in situations where behavioral health and/or social concerns are the prominent issue.

In 2019, St. Petersburg’s police department partnered with a local nonprofit to form Community Assistance and Life Liaison (CALL). Under the CALL model, clinical staff and community navigators respond to calls such as panhandling, truancy, welfare checks, mental health holds, and disputes between neighbors. When initiating the program, the St. Petersburg Police Department believed such a program could respond to approximately 12,700 calls, diverting individuals from the criminal justice system.

Overcoming Challenges to Diversion

While law enforcement agencies and local elected officials seem to be open to the idea of diversion, many jurisdictions face hurdles when it comes to implementation. Even with proven success, available funding, and law enforcement buy-in, concerns of logistics, safety, and cost can create hurdles. The report focuses on ways these communities have overcome such challenges and shows it is time for other communities, of any political leaning, to support law enforcement in shutting down the inefficient revolving door of the criminal justice system. Ultimately, these pre-arrest diversion programs can and should be implemented to increase public safety, protect personal rights, and save taxpayer dollars.

There is new hope in St. Louis County for people afraid to move on with their lives or engage with the criminal justice system because of unresolved warrants, municipal code violations, or having missed a court date.

The center, which is part of a national effort to lower jail populations in jurisdictions across the country as part of the Safety and Justice Challenge (SJC), aids in responding to concerns raised by the Department of Justice (DOJ) about racial injustice related to municipal court practices in its 2015 investigation into the Ferguson Police Department—which is located in the northern part of St. Louis County.

The DOJ commissioned a report in the wake of the 2015 police killing of Michael Brown, which spawned a series of racial justice protests in Ferguson, attracting international attention. The report found that police practices were often unconstitutional and that municipal court practices imposed substantial barriers to the challenge or resolution of municipal code violations. The court also imposed “unduly harsh penalties for missed payments or appearances,” the report said. It also said the law enforcement practices in Ferguson were driven in part by racial bias and that they disproportionately harmed African American residents. So, it is evident that in St. Louis County any efforts to lower the jail population must go hand in hand with intentional efforts towards racial equity.

Minor legal issues are often part of the reason people “tap out” of trusting the criminal justice system. They stop people feeling proactively and collectively engaged with their community’s safety and security. But the new “Tap In Center” aims to rebuild trust between community members and the criminal justice system, with racial equity at its core. The goal is to help people to have a brief conversation and to help them re-engage with court cases and, more importantly, legal assistance.

Data helped with identifying the location for Tap In. It is taking place in the zip code where most African American people in the county’s jail system live. It is also located in a neighborhood that has historically been underserved in transit access, social services, and community supports. The center aims to take a humanitarian approach to the issues that people face when they must go to a court date every month, often for an extended period of time, until their case might be resolved.

The “Tap In Center” is more than just a place for people to resolve warrants. People can also meet with an attorney, learn their case status, apply for help from a public defender, or even access a cellphone. The center also connects people with other wrap-around services to help them with various challenges in their lives, from temporary housing to clothing to help with food.

Residents have spoken positively about their experience with the center, saying it allows them to continue their lives without fear of bench warrants or fear of arrest for this. Wakesha Cook told St. Louis Public Radio that after getting connected with a public defender and setting up a new court date, “I feel free.”

“When I first got to the center, I was a little nervous since I had this warrant on me, but when I started talking with the people, I was relieved,” said Earnest Holt, another person who visited the center, in an interview with the St. Louis American.

The Tap In Center is a community-based space in a public library. It’s located in a safe, neutral, calm, welcoming spot and is designed to remove barriers and worries that a person might have about going into a courthouse. It welcomes people who come in with warrant issues—people who have historically been wary about engaging with the justice system because they are afraid of, for example, serving jail time.

The center is the result of a partnership between the St. Louis County Library system, The Bail Project, the Missouri State Public Defender, and the St. Louis County Prosecutor, with support from the St. Louis County Courts 21^st Judicial Circuit.

Criminal Justice reform strategies in St. Louis County go beyond the Tap In Center. They have focused on systemic case processing, including a population review team, enhanced pretrial reform, pretrial assessment, legal representation, and expedited probation handling. Each of the county’s reform strategies is meant to decrease the disproportionate burden that people of color face in the criminal justice system. St. Louis County is also advised by its own Ethnic and Racial Disparities committee, made up of criminal justice stakeholders, representatives from community advocacy groups, and individuals with lived experiences.

At the time of writing, St. Louis County had reduced the average daily population of its jail by 24% since joining the Safety and Justice Challenge in 2016. Nevertheless, racial disparities do persist. The average daily population of Black people in the jail has reduced by 15% from 2016 to 2021, according to the numbers, and the average daily population of White people has reduced by 41%. Length of stay has reduced for Black individuals who are seeing a 44% decline in the length of stay compared with 41% for White individuals. COVID has slowed progress because of court closures and other related delays. Now that things are reopening, the county is ready to continue its work.

The Tap In Center represents progress and provides motivation for the continued work to be done to address long-standing issues. We hope that other communities across the country will learn from the Tap In Center as they attempt to address their own racial equity issues and more.