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Diversion and Decarceration

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Mass incarceration and mass criminalization are increasingly recognized as pressing social problems. Katherine Beckett analyzes diverse diversion models in the context of the United States and considers the benefits and challenges associated with each approach

Image courtesy of interviewee. May 9, 2024

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This video video discusses the issue of mass incarceration in the United States, tracing its significant rise since the 1970s, with incarceration rates peaking in 2008 and now showing some decline. The consequences of mass incarceration disproportionately affect vulnerable and marginalized populations across racial and socio-economic lines.

In response to the harms of mass incarceration, diversion initiatives have emerged, aiming to reroute individuals away from the criminal justice system and towards supportive services. These initiatives have evolved from therapeutic courts, which address underlying issues like addiction, to pre-booking diversion programs that prevent individuals from being booked into jail altogether. More recent deflection programs focus on avoiding police contact by allowing community referrals, which help vulnerable individuals receive necessary support without police involvement.

This video video highlights both the advantages and challenges of these programs. While pre-booking and deflection programs can reduce costs and avoid many issues associated with incarceration, they also risk giving considerable discretion to law enforcement, which can lead to disparities in treatment based on race or other factors.

The effectiveness of therapeutic courts in reducing recidivism has been debated, with research suggesting limited impact on long-term outcomes. Additionally, ethical concerns arise from their punitive elements, such as the threat of incarceration as motivation for participating in treatment.

The author encourages ongoing research to assess various models for diversion and treatment, emphasizing the need for balanced approaches to minimize harm and ensure equitable access to supportive resources. Overall, the text stresses the importance of improving policies within the criminal legal system to better serve individuals while avoiding harmful consequences.

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The study really came out of this moment

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of mass incarceration in the United States, which,

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is pretty well widely understood at this point.

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But just to put it in historical perspective,

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incarceration rates began to climb steadily in the 1970s

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and eighties in the United States.

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And by the nineties, we were the world's leading jailer,

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which I think we've now established a reputation

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as, as such.

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But, it is important to note that that was kind

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of a new, new development.

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We historically had pretty typical average

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incarceration rates, relative

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to other industrialized countries.

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So the incarceration rates kept climbing,

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and in other ways,

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our criminal legal system became more aggressive

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and more expansive as well.

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Um, incarceration rates peaked in 2008,

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and we have experienced something

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of a decline since that time.

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I think we're number seven in the world now, not number one.

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Um, still very high though relative to our peer nations and,

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and relative to our, crime rate.

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And as many people know that this has a whole host

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of adverse consequences for people, for families,

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for communities, and those adverse consequences are,

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are very, unevenly distributed across race and,

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and across class, and gender also.

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So,

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and I think the most recent scholarship on this topic also

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shows that it's not just incarceration that does damage

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to people, it's also, aggressive policing

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and the imposition of legal debt, on people

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who go have contact with the criminal legal system.

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It's having a criminal record even if you never did time.

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It's, having court requirements that you are subjected

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to that may interfere with your work

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or your family life, and so forth and so on.

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And so we've, there's a lot

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of really interesting scholarship that,

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an important scholarship that's been documenting the ways

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that criminal legal system expansion has worked

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to exacerbate inequality

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and cause problems in mostly vulnerable and,

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and marginalized people's lives.

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Diversion, initiatives ca were

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born of this moment, right?

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I mean, there may have been some prior to this time of,

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of mar mass incarceration,

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but they've really taken off as a response to

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and in recognition of the harms that mass incarceration.

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Cause people thought, well, let's, let's use this moment

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of contact with the criminal legal system as a way

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of diverting, literally rerouting people away from prisons

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and jails and hopefully towards services

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and interventions that are designed to

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the hope the theory goes, address some

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of the circumstances in their life that are leading

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to the criminal legal contact.

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And they've taken a bunch of different forms over the years.

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The, the most common ones in the beginning were therapeutic

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courts, and these are still widespread

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and not just in the United States.

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These are found in many countries.

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So these are courts where the, it's, it's less adversarial

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and it's more a sort of team approach to, identifying

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and addressing people that the root causes of someone's,

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illegal behavior such as addiction

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Or untreated mental health

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problems or those kinds of things.

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And, and those are, you know,

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those have a host of characteristics.

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They involve attorneys

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and judges in the delivery of services, for example.

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Um, they can work really well for some people,

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but they raise other really tricky questions

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that we can talk about later.

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Um, in response to recognition of some of the limitations

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of therapeutic courts, some jurisdictions kind

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of pushed the diversion envelope further

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and they started doing something

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that's people call pre-booking diversion.

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So this is a diversion where someone may be arrested,

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by law enforcement, but upon arrest,

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that person has offered the option of,

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either going the conventional route

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and being booked into jail,

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or alternatively speaking to a case manager who is,

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whose task it is, is to kind of assess what the person needs

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and how they might benefit from treatment

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or other kinds of interventions.

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Um, and so it kind of works at a different entry point.

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And the idea is to make sure

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that person actually doesn't get booked into jail.

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And so the harms that come from jail contact are,

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are avoided in that case.

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And, and then more recently they've gone further.

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And so some of the diversion programs are now called

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deflection programs.

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And so the idea is here is like,

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let's not even have the contact with the police

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because we have learned particularly since 2020 that even

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that interaction with the police can be harmful

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or even potentially fatal for some very vulnerable people.

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And so how about if the referrals come from other people in

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the community, family members, attorneys, you know,

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social workers, whoever, and so,

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and sometimes from police as well.

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And so those deflection programs, it's the same idea.

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Let's reroute this person who is very vulnerable

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to being caught up in the criminal legal system,

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but has needs

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and we can meet those needs, you know, to avoid the,

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the criminal legal system contact.

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Pre-booking of diversion programs do avoid

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many of those problems.

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They, are less expensive to operate

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because they don't, in involve attorneys

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and a judge overseeing everything, they,

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don't threaten people with the threat of incarceration,

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at least not directly.

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Um, they do tend to partner with programs that rest on more

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of a harm reduction approach so people don't get kicked out

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for not being able to achieve sobriety.

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Um, so they do seem to offer many, many advantages.

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The pre-booking programs,

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though do leave the discretion in the office in law

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enforcement's hands, police officer discretion is the,

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is the animating factor,

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and people have registered concerns about that.

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Um, we've seen it go in all different ways.

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We've seen it be used in problematic ways.

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There are, there are some jurisdictions

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where police are more comfortable referring

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white people than people of color.

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Um, and we've also seen just a lot

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of jurisdictions have had problems

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with just getting police buy-in at all.

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So, and then sometimes

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what you see is there'll be police buy-in for a while

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and then it fades out under

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different political circumstances.

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And so this idea

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of resting the decision making authority in the hands

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of police makes sense in some ways.

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If your goal is to prevent people from being arrested

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and getting booked into jail, it's a logical interception

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point, but it does invest in the

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police quite a bit of authority.

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So, sometimes that works really well

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and it just depends on the,

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on the circumstances in the community.

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And then deflection programs are really intended to avoid

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that problem by not investing all the dis discretion, making

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decision making power in the hands of police.

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Um, they have certain advantages.

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You can try to prevent racial disparities

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and referral processes

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by having screen like program managers screen

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to make sure people of color

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and other marginalized groups are getting

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access to programs.

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And at a time when police won't make referrals,

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you can ensure that the referrals are still happening.

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So that's another advantage of deflect deflection programs.

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Um, the downside of a deflection program

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that does not have a pre-booking option is

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that when the police, become aggressive again

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and start making lots of arrests, you don't have a way

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of making sure you're preventing people

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from getting booked into jail.

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It's hard to know for sure who the people are

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that are gonna get arrested and to,

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to deflect that from happening.

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By the way, there's a huge literature on therapeutic courts,

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and I can't do it all justice,

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and I'll, I'll probably overgeneralize

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and I'll probably annoy some people.

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Um, but so take it with a grain of salt.

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But, I think the therapeutic,

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the research on therapeutic courts,

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and these are drug courts and mental health courts

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and others, and again, they vary so much across countries

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and even within a country.

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So it is difficult to, to draw conclusions

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that are applica widely applicable

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or universally applicable.

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But in, at least in the United States, I think

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what we're seeing in terms of the research is

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that they do have either little or no effect on recidivism.

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I I would call it a modest effect somewhere in the

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neighborhood of eight to 10% reduction in

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recidivism on average.

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It varies. Um, but the down there,

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but there are a bunch of downsides,

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and one of them is cost, which I mentioned earlier.

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You have judges and attorneys figuring, you know,

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overseeing the treatment of people

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with substance use disorder,

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which is a very expensive way to provide that service.

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Many people say, why don't, how about we make that available

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to people prior to their involvement

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with the criminal legal system.

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Um, so there's the cost issue.

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There's also the fact that most of those courts adopt

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what they call a kind of carrot

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and stick philosophy, which is they believe

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that people will only be willing

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to address those underlying issues,

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especially substance use disorder if they're kind

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of compelled to do so with the threat

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of incarceration hanging over their head.

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That raises a lot of tricky ethical issues.

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Um, many people find that problematic

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and they tend to also partner with pro treatment programs

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that do not subscribe to harm reduction,

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but rather with kind of a sobriety standard model,

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which works really well for some group of people

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and works terribly for other people, particularly

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People with chronic substance use disorder

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and especially people who are also

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experiencing, homelessness.

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Um, so, and, and there are problems.

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For example, we know the research is very clear

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that medication assisted treatment is one

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of the most effective treatment modalities we have

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for substance use disorder,

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and many therapeutic courts are not comfortable with it

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because it's not sobriety.

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Um, and so there are a whole host of other issues, including

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many of these courts are under pressure

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to show their efficacy, and they

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therefore have an incentive to kind of

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limit who they accept.

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And sometimes they, they just take the very mildest cases

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with people who really don't even have a substance use

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disorder and their stats look great, but that's in part

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because they've very,

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very selectively picked who they serve.

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So there's a lot of very critical research out there

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about therapeutic courts.

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They, you can find people who say they've saved their lives.

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Um, and also there's evidence of those problems as well.

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I think that, one

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of the best things we can do is have multiple options going

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at the same time to kind of offset some

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of the costs and, and trade offs.

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So in the lead program for example, we, they use,

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both the deflection kind of model where non-police people

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can make referrals, so community members,

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social workers, et cetera.

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Um, business owners can make referrals into the program

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also, police can, and the police can do that either

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before in anticipation of, you know,

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a person is vulnerable to arrest

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or actually when there is an arrest.

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And it seems to me that having that plethora

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of options is the best way to maximize, benefit

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and minimize the downsides of each approach.

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And we've seen that play out really successfully in Seattle

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where for

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after 2020, the police stopped making arrests, in,

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in part of their reaction to the, the George Floyd protests.

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And, and if that was the only pathway forward

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to services, then it would

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just wouldn't have been happening.

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Um, so they built out a community referral process

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that's robust and they get a lot of community referrals.

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Um, now the police are making many arrests again.

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And so it's really important

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that the police can also still make those referrals,

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but you still need to have the appropriate, you know, checks

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and balances to make sure those are done in a fair way.

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It is difficult, it's not impossible.

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I, I think the, the real challenge is, you know,

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the gold standard for causal inference is

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to do random assignment, into different programs.

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And that's tricky for a whole host of practical

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and philosophical reasons and ethical reasons.

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But in many jurisdictions, they've been able to come up

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with pretty close alternatives to the random assignment.

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So for example, in Seattle, the researchers,

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which I was not part of this team,

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but there were researchers who looked at the efficacy

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of kind of lead 1.0, which is the original version of lead

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where it was pre-booking diversion only.

11:45.685 --> 11:48.345
Um, and what they did is they found

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that they didn't have enough officers

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to trained up in the beginning.

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So they had officers working on certain nights of the week

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who were trained to make referrals

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and were making referrals.

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And then there were other nights where referrals weren't

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happening, and presumably the people who are, you know,

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out on the streets engaging in the relevant behaviors on

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Tuesday night are pretty broadly similar

12:06.945 --> 12:08.325
to the people doing it on Wednesday night.

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So it came pretty close to random assignment,

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even if it didn't, exactly match that standard.

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So there are ways to creative ways researchers have gotten

12:18.725 --> 12:19.805
around that limitation.

12:19.825 --> 12:21.605
And when they have done that, the, the,

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the evidence is typically quite strong that it,

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that both pre-booking

12:26.485 --> 12:28.285
and deflection programs, you know,

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significantly reduced costs,

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significantly reduce criminal legal system involvement, lead

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to improvements in health and wellbeing and so forth.

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Where should this research go?

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I, you know, I think it can go lots of useful places.

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I think that, the programmatic

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and policy world is changing rapidly.

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So lots of jurisdictions are experimenting

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with different models and we have all

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of these things operating in the same jurisdiction in some

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cases or so we can have, you know,

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therapeutic courts working alongside pre-booking

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and deflection programs.

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And there's a literature, a lot

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of literature on therapeutic courts, but,

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and there's some literature on diversion,

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but it's not carefully parsing out sort

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of which model is being subscribed to or employed.

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And I think we need

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to learn more about these particular benefits.

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And also I think we need to learn more about, the kinds

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of treatment modalities

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that are most effectively paired with these interventions.

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But I do think that investing in both this programmatic

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work, but also the policy,

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and research components of it is really important

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because we apparently are not on the cusp

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of abolishing the criminal legal

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system in the United States.

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And, in the meantime, it's really important

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to make sure we do as much as we can to keep people out

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of harm's way and, and getting the, the services

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that they need.

00:00 - The study really came out of this moment of mass incarceration in the United States, which, is pretty well widely understood at this point. But just to put it in historical perspective, incarceration rates began to climb steadily in the 1970s and eighties in the United States.

00:15 - And by the nineties, we were the world's leading jailer, which I think we've now established a reputation as, as such. But, it is important to note that that was kind of a new, new development. We historically had pretty typical average incarceration rates, relative to other industrialized countries. So the incarceration rates kept climbing, and in other ways,

00:37 - our criminal legal system became more aggressive and more expansive as well. incarceration rates peaked in 2008, and we have experienced something of a decline since that time. I think we're number seven in the world now, not number one. still very high though relative to our peer nations and, and relative to our, crime rate. And as many people know that this has a whole host of adverse consequences for people, for families,

01:02 - for communities, and those adverse consequences are, are very, unevenly distributed across race and, and across class, and gender also. So, and I think the most recent scholarship on this topic also shows that it's not just incarceration that does damage to people, it's also, aggressive policing and the imposition of legal debt, on people who go have contact with the criminal legal system. It's having a criminal record even if you never did time.

01:34 - It's, having court requirements that you are subjected to that may interfere with your work or your family life, and so forth and so on. And so we've, there's a lot of really interesting scholarship that, an important scholarship that's been documenting the ways that criminal legal system expansion has worked to exacerbate inequality and cause problems in mostly vulnerable and, and marginalized people's lives.

01:59 - Diversion, initiatives ca were born of this moment, right? I mean, there may have been some prior to this time of, of mar mass incarceration, but they've really taken off as a response to and in recognition of the harms that mass incarceration. Cause people thought, well, let's, let's use this moment of contact with the criminal legal system as a way of diverting, literally rerouting people away from prisons and jails and hopefully towards services

02:25 - and interventions that are designed to the hope the theory goes, address some of the circumstances in their life that are leading to the criminal legal contact. And they've taken a bunch of different forms over the years. The, the most common ones in the beginning were therapeutic courts, and these are still widespread and not just in the United States. These are found in many countries. So these are courts where the, it's, it's less adversarial

02:50 - and it's more a sort of team approach to, identifying and addressing people that the root causes of someone's, illegal behavior such as addiction Or untreated mental health problems or those kinds of things. And, and those are, you know, those have a host of characteristics. They involve attorneys and judges in the delivery of services, for example. they can work really well for some people,

03:13 - but they raise other really tricky questions that we can talk about later. in response to recognition of some of the limitations of therapeutic courts, some jurisdictions kind of pushed the diversion envelope further and they started doing something that's people call pre-booking diversion. So this is a diversion where someone may be arrested, by law enforcement, but upon arrest, that person has offered the option of,

03:40 - either going the conventional route and being booked into jail, or alternatively speaking to a case manager who is, whose task it is, is to kind of assess what the person needs and how they might benefit from treatment or other kinds of interventions. and so it kind of works at a different entry point. And the idea is to make sure that person actually doesn't get booked into jail. And so the harms that come from jail contact are,

04:04 - are avoided in that case. And, and then more recently they've gone further. And so some of the diversion programs are now called deflection programs. And so the idea is here is like, let's not even have the contact with the police because we have learned particularly since 2020 that even that interaction with the police can be harmful or even potentially fatal for some very vulnerable people. And so how about if the referrals come from other people in

04:30 - the community, family members, attorneys, you know, social workers, whoever, and so, and sometimes from police as well. And so those deflection programs, it's the same idea. Let's reroute this person who is very vulnerable to being caught up in the criminal legal system, but has needs and we can meet those needs, you know, to avoid the, the criminal legal system contact. Pre-booking of diversion programs do avoid

04:54 - many of those problems. They, are less expensive to operate because they don't, in involve attorneys and a judge overseeing everything, they, don't threaten people with the threat of incarceration, at least not directly. they do tend to partner with programs that rest on more of a harm reduction approach so people don't get kicked out for not being able to achieve sobriety. so they do seem to offer many, many advantages.

05:21 - The pre-booking programs, though do leave the discretion in the office in law enforcement's hands, police officer discretion is the, is the animating factor, and people have registered concerns about that. we've seen it go in all different ways. We've seen it be used in problematic ways. There are, there are some jurisdictions where police are more comfortable referring white people than people of color.

05:44 - and we've also seen just a lot of jurisdictions have had problems with just getting police buy-in at all. So, and then sometimes what you see is there'll be police buy-in for a while and then it fades out under different political circumstances. And so this idea of resting the decision making authority in the hands of police makes sense in some ways.

06:03 - If your goal is to prevent people from being arrested and getting booked into jail, it's a logical interception point, but it does invest in the police quite a bit of authority. So, sometimes that works really well and it just depends on the, on the circumstances in the community. And then deflection programs are really intended to avoid that problem by not investing all the dis discretion, making decision making power in the hands of police.

06:28 - they have certain advantages. You can try to prevent racial disparities and referral processes by having screen like program managers screen to make sure people of color and other marginalized groups are getting access to programs. And at a time when police won't make referrals, you can ensure that the referrals are still happening. So that's another advantage of deflect deflection programs.

06:50 - the downside of a deflection program that does not have a pre-booking option is that when the police, become aggressive again and start making lots of arrests, you don't have a way of making sure you're preventing people from getting booked into jail. It's hard to know for sure who the people are that are gonna get arrested and to, to deflect that from happening. By the way, there's a huge literature on therapeutic courts,

07:13 - and I can't do it all justice, and I'll, I'll probably overgeneralize and I'll probably annoy some people. but so take it with a grain of salt. But, I think the therapeutic, the research on therapeutic courts, and these are drug courts and mental health courts and others, and again, they vary so much across countries and even within a country. So it is difficult to, to draw conclusions

07:35 - that are applica widely applicable or universally applicable. But in, at least in the United States, I think what we're seeing in terms of the research is that they do have either little or no effect on recidivism. I I would call it a modest effect somewhere in the neighborhood of eight to 10% reduction in recidivism on average. It varies. but the down there, but there are a bunch of downsides,

07:58 - and one of them is cost, which I mentioned earlier. You have judges and attorneys figuring, you know, overseeing the treatment of people with substance use disorder, which is a very expensive way to provide that service. Many people say, why don't, how about we make that available to people prior to their involvement with the criminal legal system. so there's the cost issue. There's also the fact that most of those courts adopt

08:20 - what they call a kind of carrot and stick philosophy, which is they believe that people will only be willing to address those underlying issues, especially substance use disorder if they're kind of compelled to do so with the threat of incarceration hanging over their head. That raises a lot of tricky ethical issues. many people find that problematic and they tend to also partner with pro treatment programs

08:43 - that do not subscribe to harm reduction, but rather with kind of a sobriety standard model, which works really well for some group of people and works terribly for other people, particularly People with chronic substance use disorder and especially people who are also experiencing, homelessness. so, and, and there are problems. For example, we know the research is very clear that medication assisted treatment is one

09:09 - of the most effective treatment modalities we have for substance use disorder, and many therapeutic courts are not comfortable with it because it's not sobriety. and so there are a whole host of other issues, including many of these courts are under pressure to show their efficacy, and they therefore have an incentive to kind of limit who they accept. And sometimes they, they just take the very mildest cases

09:33 - with people who really don't even have a substance use disorder and their stats look great, but that's in part because they've very, very selectively picked who they serve. So there's a lot of very critical research out there about therapeutic courts. They, you can find people who say they've saved their lives. and also there's evidence of those problems as well. I think that, one of the best things we can do is have multiple options going

09:58 - at the same time to kind of offset some of the costs and, and trade offs. So in the lead program for example, we, they use, both the deflection kind of model where non-police people can make referrals, so community members, social workers, et cetera. business owners can make referrals into the program also, police can, and the police can do that either before in anticipation of, you know, a person is vulnerable to arrest

10:24 - or actually when there is an arrest. And it seems to me that having that plethora of options is the best way to maximize, benefit and minimize the downsides of each approach. And we've seen that play out really successfully in Seattle where for after 2020, the police stopped making arrests, in, in part of their reaction to the, the George Floyd protests. And, and if that was the only pathway forward to services, then it would

10:51 - just wouldn't have been happening. so they built out a community referral process that's robust and they get a lot of community referrals. now the police are making many arrests again. And so it's really important that the police can also still make those referrals, but you still need to have the appropriate, you know, checks and balances to make sure those are done in a fair way. It is difficult, it's not impossible. I, I think the, the real challenge is, you know,

11:14 - the gold standard for causal inference is to do random assignment, into different programs. And that's tricky for a whole host of practical and philosophical reasons and ethical reasons. But in many jurisdictions, they've been able to come up with pretty close alternatives to the random assignment. So for example, in Seattle, the researchers, which I was not part of this team, but there were researchers who looked at the efficacy of kind of lead 1.0, which is the original version of lead

11:42 - where it was pre-booking diversion only. and what they did is they found that they didn't have enough officers to trained up in the beginning. So they had officers working on certain nights of the week who were trained to make referrals and were making referrals. And then there were other nights where referrals weren't happening, and presumably the people who are, you know, out on the streets engaging in the relevant behaviors on

12:05 - Tuesday night are pretty broadly similar to the people doing it on Wednesday night. So it came pretty close to random assignment, even if it didn't, exactly match that standard. So there are ways to creative ways researchers have gotten around that limitation. And when they have done that, the, the, the evidence is typically quite strong that it, that both pre-booking and deflection programs, you know,

12:28 - significantly reduced costs, significantly reduce criminal legal system involvement, lead to improvements in health and wellbeing and so forth. Where should this research go? I, you know, I think it can go lots of useful places. I think that, the programmatic and policy world is changing rapidly. So lots of jurisdictions are experimenting with different models and we have all of these things operating in the same jurisdiction in some

12:51 - cases or so we can have, you know, therapeutic courts working alongside pre-booking and deflection programs. And there's a literature, a lot of literature on therapeutic courts, but, and there's some literature on diversion, but it's not carefully parsing out sort of which model is being subscribed to or employed. And I think we need to learn more about these particular benefits.

13:12 - And also I think we need to learn more about, the kinds of treatment modalities that are most effectively paired with these interventions. But I do think that investing in both this programmatic work, but also the policy, and research components of it is really important because we apparently are not on the cusp of abolishing the criminal legal system in the United States. And, in the meantime, it's really important

13:37 - to make sure we do as much as we can to keep people out of harm's way and, and getting the, the services that they need.

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