“People make mistakes. They do stupid things. Sometimes they make bad choices because they are down on their luck and don’t feel they have another option. But it is important to realize there is a big difference between bad people who do bad things that hurt people and good people who make an error in judgment because they are young and immature or just find themselves in a bad spot.”
— Sheriff Bob Gualtieri, Pinellas County, Florida, “Pre-Arrest Diversion Programs: The Future of Policing,” Police Foundation Blog
Law enforcement agencies across the country are developing new programs to deal with nonviolent, low-level offenders outside the normal processes of the criminal justice process. Known broadly as “diversion” programs, these initiatives typically steer people to services like counselling or rehabilitation rather than arresting them and starting a process that can readily lead to a jail stay.
Many diversion programs target offenses that arise from homelessness or substance abuse with the aim of remedying the behavior rather than merely exacting punishment. Instead of being arrested and charged, offenders are issued citations and are taken to facility where they receive social services or rehabilitation or simply a place to sleep off a binge.
Other programs are designed for the first-time offender caught committing a minor crime like shoplifting or trespass. In these cases a citation is issued requiring the individual to pay a fine or perform community service or undertake counselling.
Pre-arrest diversion (PAD) comes in many forms and can have many names including police diversion, prebooking, precharge, law enforcement assisted diversion, or deflection. All intervene just as the law enforcement process is beginning with the goal of steering an individual away from the criminal justice system. And, all offer some kind of alternative to dealing with a minor offense through arrest and criminal charges.
Diversion from arrest — and all that follows
“The most important aspect of our program is it provides law enforcement an alternative option to having to make arrests. Instead, as long as a person meets certain criteria, they can avoid a police record, stay out of the criminal justice system, and modify future behavior, all the while lessening the number of people filling our jails and prisons.”
— Sheriff Bob Gualtieri, Pinellas County, Florida, “Pre-Arrest Diversion Programs: The Future of Policing,” Police Foundation Blog
The machinery of criminal justice starts to turn in earnest when a police officer concludes there is probable cause that an individual has committed a crime. No matter how complicated the circumstances may be, the officer at that point typically has just two choices: make an arrest or let the person go. Under those circumstances it is not surprising that arrest is the default option regardless of whether it serves the best interests of the criminal justice system, the alleged offender, the community or even the police officer.
Pre-arrest diversion programs create additional options for law enforcement at that very crucial moment. The options and the circumstances under which they are available vary from one program to another. Whether the outcome is treatment for a mental health condition or a stint of community service, diversion programs provide greater flexibility in meeting community needs than the processes of the criminal justice system which focus squarely—and often exclusively—on matters of guilt and innocence. Diversion programs of all sorts give law enforcement agencies the option of handling a minor infraction outside the criminal justice system altogether, seeking more appropriate and more cost-effective solutions elsewhere.
The range of eligible offenses varies widely. Some diversion programs are limited to crimes related to the consumption of controlled substances. Others cover a range of behavioral issues, such as public drunkenness, and the broadest extend the possibilities of diversion to a variety of minor crimes such as petty theft or trespass. Felonies are typically excluded altogether, as are domestic assaults.
A police officer considering an arrest for a minor crime will typically take a number of steps that start with an assessment of the circumstances surrounding the alleged offense. And the officer is likely to make a field inquiry to determine whether the individual is wanted in connection with another crime. In a jurisdiction with a diversion program, that officer will next determine whether the alleged offense fits with the program’s criteria and then whether to opt for diversion. It is an on-the-spot decision by the official who is closest to the offense, is face-to-face with the offender and is familiar with the surrounding community.
If the diversion alternative is chosen, what happens next also varies greatly from program to program. At times, the officer issues a referral or some kind of citation that obliges the individual to appear at a specified time at a facility that administers the program. In cases of substance abuse, individuals are usually steered directly to treatment. The actions required of a diverted individual similarly vary to include the payment of restitution and fines, community service, counseling or a course of treatment. Often the referral or citation is the only documentation of the offense, and it is kept with the agencies involved. Sometimes the paperwork for an arrest is completed, including the grounds for the finding of probable cause, and is then held in abeyance. Similarly, the procedures for filing a charge are sometimes initiated but not completed. If the individual complies with all the requirements of the diversion program, charges are usually dropped and there is no permanent record of the offense. If the individual absconds or fails to meet the requirements, the arrest and the charges can be quickly reinstated and arrest warrant is issued.
PAD programs at work
Jurisdictions across the country have created innovative programs that avoid the negative consequences of arrest. Many programs are too new to be deemed a “best practice” through an evidence-based approach, but have still produced promising results. The Police, Treatment and Community (PTAC) Collaborative, which brings together law enforcement officials and experts on criminal justice and substance abuse, encourages jurisdictions to assess their unique needs and capacities in weighing PAD options, and presents six guiding questions for police leaders in “Pre-Arrest Diversion: A Public Health Solution to Better Public Safety.”
Here are some innovative examples of pre-arrest diversion programs from across the country:
Pinellas County, Florida
Initiated in 2016 with a memorandum of understanding among all the major players in the local criminal justice system, the Adult Pre-Arrest Diversion Program (APAD) encompasses a list of eligible offenses that includes possession of small amounts of marijuana and a variety of other minor crimes. These include shoplifting or other thefts of property worth less than $300, disorderly conduct or intoxication, trespass, vandalism and littering, as well as misdemeanor assaults or battery other than domestic situations.
The officer considering diversion will check a state database to determine whether the individual is the subject of pending warrants and whether the person has kept a clean record in recent years as required by the program: two years for a misdemeanor, five for a felony. If the individual admits guilt and can demonstrate ties to the local community through a residence or employment, the officer issues a Notice of Referral that gives the person 48 hours to report to an office of the sheriff’s department where sanctions are decided. These typically involve community service hours, restitution as appropriate, and treatment or counseling programs if called for. The programs are provided at no cost. If the program is completed successfully, the only record of the offense is kept with the sheriff's department.
In 2014, Los Angeles City Attorney Mike Feuer launched the Neighborhood Justice Program. The program uses a restorative justice model for first-time offenders who commit a nonviolent misdemeanor not involving weapons or drugs. Instead of arrest, booking and possible jail time, offenders go before a panel of community members to discuss why they committed the crime and the harm it caused. The panel is made up of three volunteers who are expected to serve for a year after training on restorative justice and consensus building. Also present is a trained facilitator and, when appropriate, a property owner or other aggrieved party. The community panel then determines the appropriate consequences to repair harm caused by the crime. These can include community service, a letter of apology, restitution, and classes aimed at ensuring that the participant never has contact with the law again. If the defendant complies with the conditions set by the community panel, no criminal charges will be filed and there will be no record of an arrest or of guilt.
Harris County, Texas
Pre-arrest prosecutorial screenings give prosecutors wide discretion over how individuals are charged. In Harris County, prosecutors exercise discretion before an arrest is executed. When considering any warrantless arrest, police are required to call an intake hotline, which is active 24 hours a day, to consult with officials of the District Attorney’s Office. A prosecutor reviews every arrest for appropriate legal standards before a person can be charged and booked into jail. Prosecutors dismiss about 25 percent of charges nationally, so this process saves police and jails time and resources by avoiding bookings that would inevitably be dismissed. A study of data from 2004 shows that prosecutorial screening in Harris County reduced on-site arrests by 26 percent
“Justice on the Line: Prosecutorial Screening Before Arrest” by Adam Gershowitz, professor and associate dean for research and faculty development at William & Mary Law School, presents an in-depth argument in support of prosecutorial screenings.
The benefits of pre-arrest diversion
- Low-level offenders are spared the consequences of having an arrest and a criminal charge on their records, and of spending time in jail even if only for the time it takes to schedule a bond hearing. Having a record can cause problems with employers, landlords and lenders. Missing work even for a day because of a jail stay can mean the end of a job.
- For police, a PAD can mean more time pursuing more serious crimes while ensuring that there are adequate procedures for a minor offense. Instead of interrupting patrol activities to complete arrest and booking procedures, a police officer can order an individual into a diversion program with only a little more effort than issuing a speeding ticket.
- Jails, meanwhile, are spared the expense and distraction of processing, housing and releasing individuals who pose no threat to public safety. And, rather than serving as mental health hospitals, jails can focus on their true missions.
- When cases of public drunkenness, drug use, and other such behavioral offenses can be diverted directly to treatment facilities, emergency rooms can concentrate on their primary missions and avoid excessive, and often uninsured, expenses.
- In the long term, diversion programs can allow local authorities to remove entire categories of people from the criminal justice system and develop more impactful and cost-efficient policies to deal with low-level offenses without sacrificing public safety.
- Family, neighbors and the offenders themselves have greater incentives to cooperate with the criminal justice system once the threat of arrest, criminal charges and jail time is removed in cases of minor crimes.
- And, when a community starts to see that police are trying to remedy social ills like homelessness or substance abuse by directing individuals to treatment instead of arresting them, there are unintended benefits. Trust builds.
How this helps Latinos and noncitizens
From the police stop through arrest, charging, jail stays and bond hearings, low-income individuals and people of color face worse outcomes than whites. While the disparities are greatest for blacks, Latinos also face consistent and cumulative disadvantage. Pre-arrest diversion programs offer a powerful alternative. Offenders not only are less likely to face the harsher punishments that come with racial and ethnic disparities, but also are more likely to access treatment for substance abuse and mental illnesses when it is necessary. For many, jailing for a minor crime can initiate a pattern of escalation and recidivism. Pre-arrest diversion can interrupt that cycle before it has a chance to take hold.
Immigrants and drug offenses Human
For noncitizens, avoiding arrest and booking can reduce the chances that a minor offense will lead to a life-changing encounter with immigration enforcement authorities. This happens regardless of the intentions of local authorities. Even a minor misdemeanor can lead to deportation under the complex policies and inconsistent decision-making that determine grounds for removal. The link between local police and immigration enforcement is automatic and irreversible once a certain threshold is crossed. The most common threshold is at booking with the execution of a full 10-digit fingerprint check. The query is typically forwarded to the FBI’s Criminal Justice Information Services Division, which keeps the nation’s master file of criminal records, outstanding warrants and other information on potential threats to public safety. The computers there are linked with those at the Department of Homeland Security, and they automatically trigger a check of immigration databases. Virtually all PADs reduce or eliminate the chances of immigration consequences for a minor offense by avoiding formal charges. Moreover, many diversion programs do not require an FBI fingerprint check, avoiding the automatic notification of immigration authorities.
Public awareness of a diversion program can enhance cooperation with police in communities with large shares of noncitizens by removing the specter of immigration enforcement from routine interactions with law enforcement. Individuals can be more likely to report a domestic disturbance, a case of petty theft, or a trespass if they know it will be handled within the community without involving immigration authorities. Removing an automatic connection between criminal justice and immigration enforcement is particularly significant when police are contending with addiction or other behavioral health problems.
PAD programs that do not perform full federal background checks with fingerprints or formally enter charges are most effective in preventing immigration consequences for noncitizens.
PAD programs can also help legal permanent residents avoid immigration consequences for drug-related offenses, as long as a guilty or no-contest plea is not required for participation. Under the Immigration and Nationality Act, a noncitizen is deportable for a guilty or no-contest plea related to a controlled substance, including marijuana. An analysis of immigration data by Human Rights Watch found that over 260,000 noncitizens, whose most serious charge was drug related, were deported from 2007 to 2012, representing a 22 percent increase during that period.