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What Is Diversion?

Peter van Agtmael / Magnum Photos

Not all criminal cases go through the typical process of arrest, detention, trial, or guilty plea. Nor do all end in criminal sanction. Many are routinely screened out of the criminal justice system through a process called “diversion”—an array of informal and formal practices that effectively remove criminal cases from the justice system and may place selected defendants out of the reach of criminal sanctions. Formal diversion programs first evolved from the informal discretionary practices of the police, prosecution, and judiciary. These programs were meant to remove certain cases without resorting to arrest, charge, trial, or resolution, and grew to become a now widely endorsed—if less well-known—feature of the criminal justice system in every state and on the federal level. It includes the authority of a police officer to issue a summons rather than make an arrest, as well as the decision by prosecutors or judges to offer an eligible defendant entry into an established diversion program in lieu of proceeding with a criminal case.

Diversion grew in response to a budding perception that punitive measures could not achieve a number of important objectives. For one, diversion offered an opportunity to remove minimal-risk cases from overloaded court dockets and ease the pressures of jail and prison overcrowding. It could also be used as a mechanism to avoid burdening people with the lasting negative consequences of criminal convictions—such as limited access to public benefits, employment, or housing—particularly when justice-system involvement would cause greater harm than the alleged offense. Finally, diversion could be used to identify and treat higher-risk defendants whose criminal behaviors might be better influenced by the delivery of targeted services, such as treatment for substance use disorders or mental illness.

Over the past two decades, one form of diversion in particular—the treatment or “problem-solving” court—has become commonplace within the U.S. criminal justice system. In jurisdictions across the country, nearly 3,500 drug courts and more than 300 mental health courts are now operating, with other types of problem-solving courts—veterans courts, community courts, DUI courts, homeless courts, and prostitution courts, for example—also developing rapidly.

The growth of these programs has been driven, in part, by research indicating that problem-solving courts reduce recidivism and associated criminal justice costs. Other studies and cost analyses have challenged these claims, particularly because defendants are often mandated to longer-term or more-secure treatment settings than clinically necessary. Because these courts hold the promise of addressing problems faced by many people who come into contact with the criminal justice system, experts counsel that courts should partner with and follow the guidance of those who are trained in clinically appropriate methods, to avoid ordering inadequate or misapplied treatment.

To that end, many states are creating laws to provide better support to and regulation of these programs and the services they provide. In Oregon, for example, programs must follow evidence-based standards and best practices prepared by the state’s criminal justice commission; in Illinois, courts are required to partner with advocates, survivors, and service providers. Through the Community Alternatives Program and Crossroads, which are rooted in harm-reduction approaches to behavioral change and run in accordance with community-based partners, Judge Charbonnet helps set a similar standard in New Orleans. With such measures in place, these and similar programs have the potential to relieve an overburdened criminal justice system, improving outcomes and transforming lives along the way.