Pre-Arrest Diversion: Where You Live Can Determine Whether You Go to Jail

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Photo by Grendelkhan via Flickr

Alternatives to detention are now widely available across the U.S. to justice-involved individuals who pose no risk to public safety. But a new survey shows that how they are implemented and who benefits from them can depend on a “stunning variety” of state statutes and practices.

The study, based on a 50-state survey by the R Street Institute, a Washington, D.C.-based policy think tank, examines how the most common pre-arrest diversion strategies aimed at helping individuals who come into contact with police as a result of mental health or substance abuse issues avoid becoming entrapped in the justice system work in practice.

Until relatively recently, whether someone was arrested for a serious offense or a simple violation of an ordinance, it could set in a motion “a criminal process that exhibits at times all of the control and potential for danger as a runaway locomotive,” the study said.

Not only can it set an individual on a path towards being permanently branded in the justice system, but it can require arresting officers to spend hours transporting and processing individuals who pose little or no threat to the community.

“While arrest is warranted for many of the more serious transgressions, it is an ill-fitting and disproportionate response to myriad other situations,” said the study. “Yet traditionally, the only other option officially available to officers is to do nothing.”

Nevertheless, even though a rich menu of alternatives is now available to law enforcement and first responders, differences in state laws governing so-called “crisis responses,” as well as funding constraints, mean that an individual’s chances of avoiding entrapment in the justice system—and thereby increasing the odds of recidivism or further harm—can depend on where he or she lives, or on how the different strategies are administered, the survey found.

“Although (pre-arrest diversion) strategies are often locally designed and implemented, they do not operate in a legal or political vacuum,” wrote the survey authors.

“Instead, localities are subject to a web of state laws and regulations that directly bear on their ability to institute pre-arrest diversion and other crisis response strategies effectively.”

Differences or gaps in state regulations can determine whether someone experiencing an opioid overdose, ends up in jail or a treatment center, according to the study.

map

Map courtesy R Street Institute. See study for additional interactive maps

 

For example, while 41 states allow police to take into “protective custody” (instead of arresting them) individuals suffering from an alcohol abuse episode, just 27 have similar provisions for individuals impaired by other drugs, such as opioids.

Protective custody allows police, working in partnership with first-responders, to divert affected individuals to mental health or counseling centers, instead of detaining them for criminal processing. In some cases, it can also empower first-responders on the scene to take immediate action rather than contact law enforcement.

Transforming Justice

The ability to delineate alternative scenarios for responding to troubled individuals represents a landmark transformation of the traditional justice system in many communities.

It’s now well-recognized that “criminal charges can distract from and exacerbate health issues, while a potentially months-long commitment may be inappropriate for many individuals who only need temporary assistance,” the study said.

jonathan haggerty

Jonathan Haggerty

But the authors, Lars Trautman and Jonathan Haggerty, both senior fellows of criminal justice and civil liberties policy at the R Street Institute, said that even within those jurisdictions allowing protective custody, there are wide differences in the amount of discretion allowed authorities.

Another key factor is the availability of alternatives in each community. In just 23 states, officials are “required” to take individuals to non-correctional facilities such as detoxification centers or hospitals. But sometimes such facilities are either too far away, or are simply unavailable for lack of sufficent funding.

Some 19 jurisdictions allow a jail or police station to be used as the location of first resort for “protective custody,” while another 14 do so only if health or crisis facilities are unavailable.

Changes in state legislation, as well as increased funding for non-jail alternatives, could correct the differences in responses, the authors said.

“Just as pressing, but practically more difficult, is the elimination of other jails and correctional institutions as possible detention sites whenever feasible,” they added. “An individual in protective custody is suffering from a health crisis, not a criminal one.”

Avoiding Arrest

The study similarly compared how states are using four other diversion strategies that have become broadly accepted in the justice community:

      • Emergency medical health holds which authorize first responders take an individual experiencing a mental health crisis into a form of civil custody in order for them to be evaluated by appropriate mental health or medical personnel;
      • Citations which permit or require law enforcement officers by statute to issue a citation to individuals alleged to have committed certain specified offenses, instead of placing them under arrest, booking or detaining them;
      • Good Samaritan laws which offer immunity from arrest, criminal charges, prosecution or conviction for limited, drug-related offenses to individuals who call for assistance for someone experiencing a suspected overdose;
      • Ambulance Transport that can require emergency medical service personnel to take an individual experiencing a crisis to a hospital emergency room, or require police to contact emergency medical technicians rather than bring the individual to jail for booking.

New Mexico passed the first Good Samaritan law in 2007, and similar laws now operate in 47 states and the District of Columbia. They corrected a serious gap in treatment, since many individuals who might otherwise be the first to become aware of a crisis experienced by a relative or friend feared notifying police because they risked being charged with possession of drugs or drug paraphernalia.

But “the near universal adoption of these laws in so short a period, however, should not be confused with unanimity of support,” the authors observed, noting that resistance from “tough on crime” legislators has delayed implementation or watered down the legislation in many states.

In Maine, for example, Republican Gov. Paul LePage vetoed a Good Samaritan bill twice in 2013 and 2017, arguing that it would encourage drug use. ”It was only after he left office in 2019 that Maine managed to enact a Good Samaritan law,” the study said.

The laws ran into similar political headwinds from then-Republican governors in Texas, California and New Jersey.

But at the same time, some strategies favored by local sheriffs, such as “emergency mental health holds” for mental health crises, have run into opposition from criminal defense lawyers and mental health advocates.

In Kansas, the local chapter of Mental Health America opposed efforts to make it easier to hold individuals against their will based on mental illness, on the grounds of protection of privacy.

Lars Trautman

Lars Trautman

The authors said their comprehensive analysis of pre-arrest diversion strategies shows they are “increasingly popular” at the local level; but while the trend across many states has been to continue to expand their range, the “stunning variety of statutory permutations” has led to gaps and variations in the implementation of each policy tool.

“The success of local diversion will turn not just on whether state policy changes, but how,” the authors said.

The authors argued that further research of those gaps is crucial to developing strategies that can work for all Americans wherever they live.

The survey of the differences they discovered should be considered a “map of areas of improvement as well as a source of inspiration,” the study said.

“No state may have yet figured out how to create the most conducive environment possible for pre-arrest diversion and crisis response, but in their divergent approaches they present a wealth of promising options.”

The full study can be downloaded here.

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