Melissa Braham, 27, had no adult criminal history when she was apprehended by police in Kansas last fall while moving from Colorado to Missouri. After searching her car, officers charged Braham and her boyfriend with misdemeanor marijuana and paraphernalia possession.
Under state law, she was entitled to receive notice that she could apply for a diversion program to avoid criminal charges. Instead, she was jailed for a month, during which time she lost her job and had her children taken from her and placed in foster care.
“My kids came to see me in jail, and it was really hard to see my baby crying,” Braham said in a video produced by the American Civil Liberties Union (ACLU) of Kansas. “They’re still in foster care and I’m still trying to get them back.”
“All of this big heartache really could have been avoided if I had known about diversion.”
Braham is one of thousands of Kansas defendants who could have benefitted from diversion programs had they been given the opportunity. According to figures collected by the ACLU of Kansas, elected prosecutors in the state use diversion in only about five percent of felony cases—about half the rate diversion is used nationally.
The ACLU brought a lawsuit against a county prosecutor in Kansas in June for failing to disclose diversion opportunities to defendants in accordance with state law.
“These programs are essential to establish a rehabilitative rather than punitive criminal justice system,” said Somil Trivedi, a National ACLU attorney who is partnering with the ACLU of Kansas in the lawsuit, in a press release on June 8.
“We’re taking action in Kansas to send a message to prosecutors that it’s their obligation to uphold the law and serve their community, not just rack up as many convictions as they can.”
But how effective is diversion in the first place?
Diversion allows low-level defendants to avoid criminal charges, and thus divert them from the criminal justice system, if they follow a prescribed program set out by a prosecutor. Conditions can include some combination of classes, community service, addiction treatment, mental health counseling, and restitution.
The central promise, should defendants complete diversion successfully: a clean record.
Diversion programs seek to address the root causes of crime. Proponents say they can be a means of relieving overburdened courts and crowded jails, and can save offenders from the adverse consequences of a criminal conviction.
Nearly every state has some form of diversion program, according to the National Conference of State Legislatures, but advocates claim the programs are vastly underutilized and are often inaccessible to low-income defendants.
Prosecutors exert almost total control over diversion: they alone have discretion over whether to grant a diversion, and have exclusive responsibility for determining whether a defendant is complying with the diversion agreement’s terms. The district attorney’s decision is almost always final, and defendants have no way to appeal a rejection.
Rules about who is eligible are different in different jurisdictions. Drunk drivers are eligible for diversion in Oregon, but not in Tennessee. In Saline County, Kansas, diversion is not offered for drug offense; three counties south, it is.
Does Diversion Work?
But the availability of diversion does not always successfully prevent defendants from becoming ensnared in the justice system.
Even in cases where diversion is offered, the fines and fees that come with it prove prohibitive for many defendants.
In 2016, the New York Times analyzed 225 adult diversion programs run by prosecutors in 37 states. Two-thirds of lawyers who answered a Times questionnaire about diversion reported that fees were a barrier for their clients.
The exact cost of diversion varies widely. In some places, prosecutors charge nonrefundable application fees that can go up to $250. Additional charges—for counseling, classes, drug tests, monthly supervision, charitable contributions, court costs—mount quickly. The ACLU estimates that a defendant in diversion could pay up to $5,283 for a marijuana possession charge.
“To tell somebody that if you can pay for this, you can get your charges dismissed, but if you are poor you are going to go through the system? That’s completely unfair,” Mark Kammer, who runs diversion programs for the Cook County State’s Attorney in Chicago, told the Times.
Sometimes even after a defendant successfully completes diversion, the promise of a clean record can prove false.
Prosecutors can opt to leave a case open until diversion has been completed, and the resulting pending charge can then stymie defendants’ efforts to find work or housing. Once the case has been closed, expungement is often not automatic, meaning a dismissed case can still show up in a background check.
Diversion vs Punishment
Some district attorneys require defendants to enter a guilty plea that can later be used to prosecute them, undermining the benefits of diversion. And when requirements are strict—hundreds of hours of community service, years of probation—diversion can look very similar to punishment.
A widespread lack of data about fees, success rates, recidivism, and who is accepted or rejected from diversion programs, precludes accountability and improvement almost nationwide.
When diversion is done well, however, its results can be significant. Cook County’s diversion program (in Illinois), which is widely recognized as a model, is an example: a year after finishing felony diversion, 97 percent of graduates have no new felony arrests, and 86 percent have no new arrests of any kind. The program’s drug school alone saves the county an estimated $1.5 million annually.
In the Cook County program, which handles about 5,000 defendants a year, participants are not obliged to plead guilty, and they pay no fee for participation. If they do not successfully complete their program, they are either returned to traditional prosecution with no penalty or are switched to a more comprehensive program.
The intensity of the program is proportionate to the offense: misdemeanor defendants might be required to attend only two counseling sessions, while those charged with high-level felonies can be sent to Branch 9, a yearlong program that connects members to services such as classes for a high school equivalency diploma, substance abuse evaluations, and health insurance.
The Miami-Dade diversion program in Florida, another oft-cited example, focuses specifically on redirecting people with mental illness away from the criminal justice system. In the 18 years it has been in operation, the Criminal Mental Health Project (CMHP) has both reduced the county’s jailed population and improved public safety.
County Judge Steven Leifman began the program in 2000 after realizing that while 9.1 percent of the county’s population has a serious mental illness, only about one percent receive services in the public mental health system, leading to preventable crime and arrests.
CMHP includes a pre-booking program and a post-booking program that divert mentally ill people who might otherwise be arrested for minor offenses or who are already jailed to crisis units for treatment.
To be eligible for the program, a defendant must have a primary diagnosis of a serious mental illness such as schizophrenia, bipolar disorder, major depression, or PTSD. They may also have a co-occurring substance abuse disorder. Defendants can be charged with any non-traffic misdemeanor case, as well as third-degree felonies and second-degree felonies in select cases.
All cases must be approved by the state attorney’s office.
“People with serious mental illnesses need access to the treatments and services that will help them to get better, and they don’t get better in jail,” said Cindy Schwartz, the jail diversion program director.
“We believe this a much better alternative for the people we serve, and it’s a much better alternative for our community.”
In 2016, the New England Journal of Medicine reported that CMHP had facilitated 4,000 diversions, and that the annual recidivism rate among participants was about 20 percent—less than a third of the 75-percent recidivism rate among defendants not in the program.
In some places, diversion takes the form of specialty courts, such as drug courts and veterans’ courts. In these cases, judges take the lead. Generally, however, diversion is a prosecutors’ game: it falls to the district attorney to give or withhold.
Many opt for the second option. Diversion is currently utilized in a small minority of felony cases nationwide, about nine percent.
“The incentives within a prosecutor’s office are skewed towards conviction and long sentences—it’s how they justify their existence,” Trivedi said. “So that is the default approach.”
“If somebody has broken the law, then the only approach to rectifying that wrong is to convict someone of a crime and send them to jail. That’s deeply ingrained in the culture.”
But Trivedi believes it’s time for that culture to change.
“The reason that this issue is so important is that it addresses all the issues we want the criminal justice system to address, but in a smarter way,” he told The Crime Report.
“If prosecutors say they want to keep their communities safe, well, getting people with substance abuse problems the proper treatment they need is a much smarter long-term solution to keeping the community safe, because you’ve eliminated the problem that was driving the criminal activity.”
“If we say we want to save taxpayer money…well, diversion programs save money, because having the state take care of you from morning to night is much more expensive than keeping tabs on someone while they’re in an outpatient program.”
“And if we’re reducing recidivism and keeping people from reoffending, we’re also reducing the cost of the overall system,” he said.
“If states and municipalities and district attorneys and police were serious about keeping the community safer long-term, then these would be much more frequently used programs.”
Elena Schwartz is a TCR news intern. She welcomes readers’ comments.