Establishing New Norms in Avoiding Incarceration: Using Deflection and Diversion to Prevent Criminal Legal Involvement
By Julia Bowling, Research Associate, and Diana Spahia, Senior Research Associate
Communities across the country seeking to reduce the over- and mis-use of local jails have joined the Safety and Justice Challenge to do so. Using data-driven strategies, these jurisdictions are honing in on the root causes of incarceration and creating tailored solutions. These solutions include programs that deflect or divert youth and adults away from jail and into behavioral health and other programming that can provide the support they need to thrive—and reduce their chance of rearrest.
When it comes to fixing the societal problems that may lead to crime, it’s well understood that the overreliance on incarceration—especially local jails—is deeply inadequate. However, there is very little known about how to reduce that overreliance on local jails. Through the Safety and Justice Challenge (SJC), the MacArthur Foundation funds local jurisdictions to implement strategies that will safely reduce jail populations and eliminate racial disparities. Managed by CUNY ISLG, the SJC Research Consortium commissions studies to document and evaluate the strategies implemented in SJC sites to better our understanding of how policy and practice reforms impact jail populations and disparities, in turn reversing the overreliance on jails and creating a more equitable system.
Arrest is one pathway to jail that SJC strategies have targeted. To explore the impact of arrest-focused strategies, researchers from the Urban Institute and Justice System Partners (JSP) examined programs in three SJC sites (Durham County, NC, Pima County, AZ, and Charleston County, SC) that sought to deflect or divert arrests and prevent future arrests and jail admissions. The Urban Institute conducted both program and impact evaluations on the Misdemeanor Diversion Program (MDP), a program developed to divert young adults in Durham County, NC, from arrest and direct them to supportive services. JSP conducted outcomes assessments of the Crisis Response Center (CRC) in Pima County, AZ, and of the Tri-County Crisis Stabilization Center (TCSC) in Charleston, SC, efforts to provide access to behavioral healthcare to people in crisis in lieu of arrest. Below is a summary of what researchers learned from these studies and policy implications developed from the findings, which can be used by other jurisdictions considering implementing similar strategies.
Key Takeaways
Deflection and diversion are not one and the same
JSP’s approach and findings stressed the difference between these two mechanisms could mean the difference between eventual incarceration and not. Deflection means individuals are not involved at all in the criminal legal system aside from the first point of contact with a police officer, who refers them to treatment and services. If individuals do not successfully complete a program, there is no legal consequence nor is there a mark on their record. Diversion means individuals have formally entered the criminal legal system and must complete all program requirements to avoid jail time or other legal ramifications. While diverted individuals avoid incarceration if they meet the diversion criteria and stipulations, their involvement is on record and the individual is considered “justice-involved.” Therefore, adopting a “deflection first, diversion second, incarceration as-a-last-resort” framework would provide multiple mechanisms for jurisdictions to prevent unnecessary legal system contact.
Policies And Practices Should Work Toward Preventing Criminal Legal System Involvement Entirely
It’s well-established that one of the biggest determinants of whether someone will get involved with the criminal legal system is past involvement with that system. Keeping people out of the criminal legal system from the first point of contact (deflection) should be the goal, as the potential to reduce future contact grows when a person is offered alternatives to the system from the start. JSP goes further to state that implementing a “deflection first, arrest rare” policy would discourage arrest for minor offenses and encourage options that lead to seeking treatment and support to address underlying issues. Additionally, keeping involvement out of public record is important to completely disassociate participants from the criminal legal system, especially in the digital age where arrest records live online.
Addressing Underlying Issues Through Flexible Diversion Programs
If deflection is not possible, diversion should be adaptable to achieve the primary goal: creating opportunities to address underlying issues instead of utilizing the criminal legal system as an ill-suited one-stop-shop. Flexible diversion programs are instrumental to success because they address individual participants’ needs rather than assigning the same services to all participants, which can be both burdensome and unnecessary. The Urban Institute’s study of the MDP found that individuals who participated in the program were anywhere from 10.4 percent to 19.4 percent less likely to experience a future arrest, and 95 percent of participants completed the program successfully. This high success rate and reduction in new arrests is credited to the MDP’s recognition that individuals have different needs, interests, decision-making processes, and risk behaviors, and the program is tailored to each participant accordingly.
Ensuring Stakeholder Buy-In Is Essential for Keeping Individuals Out of the Criminal Legal System
For both arrest deflection and arrest diversion, criminal legal stakeholders at the first point of contact, namely police officers, should be informed and trained on deflection and diversion options available in their area to steer first-time or low-level offenders away from the criminal legal system. Police officers are often the gatekeepers for these programs, so they need to be well-informed and to believe in the program’s utility in order to refer participants at an appropriate rate. The Urban Institute found that in Durham, NC, as many as 77 percent of eligible individuals were not referred to the MDP program because of either lack of knowledge of the program or lack of buy-in from law enforcement. JSP found that in Pima County, officers were less likely to refer individuals to programs if the individuals did not want to initiate treatment and would then arrest them, even if the officer felt that jail would not be the best option. In Charleston County, JSP's research indicates that the wishes of the person victimized by the crime weighed in heavily as to whether the individual should receive a deflection option.
Investment in Mental and Behavioral Health is an Investment in Public Safety
A central need among those impacted by arrest deflection and diversion strategies is mental and behavioral healthcare. In their report, JSP highlights that U.S. jails have been called the “new asylums” because as many as 20 percent of people who are incarcerated have a Severe Mental Health Diagnosis (SMHD), and as many as 65 percent have a substance use disorder. These alarming statistics underscore what is already known: most people in jails are not receiving appropriate treatment for mental and behavioral health issues, and that incarceration is likely not the suitable solution for infractions of the law among these vulnerable populations. Therefore, investment in treatments, programs, and services for individuals with SMHD and substance use disorders keeps them outside of the reach of the revolving door of the criminal legal system and instead allows them to receive care and attention that is beneficial to them and that simultaneously keeps the community safe.
In Charleston County, JSP found that 76 percent of people did not experience a subsequent arrest after deflection to the TCSC. However, subsequent arrests were more common for Black men with serious mental health disorders, highlighting the need to further study the nexus between race, gender, and mental disorders to ensure equal access to care. JSP found that Pima County’s CRC, which operated on a “no wrong door policy,” accepting patients 24/7 from all law enforcement agencies and without exclusions, encouraged more opportunities to access treatment and supportive services. To that end, JSP found that 27 percent of individuals who were voluntarily deflected to the CRC returned to the CRC at least one more time, and individuals with serious mental health disorders and co-occurring mental health and substance use issues stayed at the CRC longer each additional time they sought treatment. This pattern indicates that thought it may take multiple initiations of contact, individuals learn the benefits of treatments, services, and programs and are more willing to engage with them over time.
Recommendations
Based on these key findings, researchers determined several recommendations to encourage the establishment of and enhance the effectiveness of mechanisms to avoid arrest:
Conclusions
Across the three studies and various reports, researchers found that arrest diversion and deflection programs are effective at reducing rearrests and criminal legal system involvement in general. Training and buy-in from law enforcement, policies and practices that expand access to alternatives to arrest, and programs that are designed to meet individual needs are all critical to success.
Arrest diversion and deflection programs are spreading, but law enforcement may be hesitant to enact reforms. This body of research serves to increase awareness of the success of these types of programs on many fronts, to include their effectiveness at decreasing future criminal legal interactions and appropriately targeting participant needs. In order for these types of programs to have a fighting chance, law enforcement must be fully informed and on board. As such, these studies contribute to the growing evidence that we should be working toward a new norm that avoids arrest and instead seeks to address underlying issues.
About the CUNY Institute for State and Local Governance and The Safety and Justice Challenge Research Consortium
The City University of New York’s Institute for State & Local Governance (CUNY ISLG) is a good governance think-and-do tank driven by the idea that data-informed approaches can measurably improve the way government and public institutions operate, equitably serve all constituents, and ultimately solve social policy problems. Since 2013, ISLG has worked with communities across the country to develop and implement the necessary research, policies, partnerships, and infrastructures to help government and public institutions work more effectively, efficiently, and in the interest of all communities.
In 2015, the John D. and Catherine T. MacArthur Foundation selected CUNY ISLG as the national intermediary and primary data and analytic partner for the Safety and Justice Challenge (SJC), a multi-year initiative to reduce populations and racial disparities in American jails. To advance knowledge grounded in a research agenda that explores, evaluates, and documents site-specific strategies to safely and effectively reduce jail populations and address racial and ethnic disparities, CUNY ISLG established and oversees the SJC Research Consortium. Consortium members are nationally renowned research, policy, and academic organizations collaborating with SJC sites to build an evidence base focused on pretrial reform efforts.
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