Increased use of diversion is a key feature of America’s new age of criminal justice reform.
Whether administered informally by prosecutors or under the auspices of courts, diversionary dispositions aim to resolve cases without a conviction—and in so doing, conserve scarce legal resources, provide supportive services, reduce recidivism, and provide defendants with a chance to avoid the lingering stigma of a conviction record.
Despite the growing popularity of diversion in this country and around the world, there has been little empirical study of its impacts on future behavior.
By conjecture, the opportunity to steer clear of a criminal conviction might affect future behavior in opposing ways. An optimist might expect that diversion would motivate a person to avoid returning to court in the future, while preserving the ability to hold lawful employment, especially in places where criminal background checks are used to screen applicants.
A skeptic might argue that diversion represents a lesser punishment that could increase offending by reducing either a specific or general deterrence effect.
Without research showing the likelihood of one or the other outcome, policymakers, prosecutors, and judges have had to operate on untested assumptions, hoping for the best. This vacuum has now been filled by a new study of Texas’ court-managed diversion program by two economists, which should be welcome news for the optimists.
Michael Mueller-Smith and Kevin Schnepel (2020) use detailed administrative data from Harris County (which covers the Houston area) to estimate the first causal impacts of a diversion program available to a large fraction of felony defendants in the state.
Texas’ “deferred adjudication community supervision” allows defendants to plead guilty but have entry of a conviction deferred during a period of community supervision, with the case dismissed without a conviction upon successful completion.
The arrangement must be approved by the judge. This diversion program is comparable to numerous programs administered by prosecutors and judges across the U.S., Europe, and several other countries—although many programs do not necessarily require a guilty plea. At the same time, Texas law has broad eligibility for its program compared to many otherwise-comparable American programs, making deferred adjudication potentially available to all defendants except those charged with DUI-related offenses, repeat drug trafficking near a school, a range of repeat sex crimes, and murder.
The Mueller-Smith and Schnepel study finds that defendants without a prior felony conviction who participated in Texas’ deferred adjudication program experienced an immediate and dramatic reduction in subsequent offending. The total number of future convictions fell by 75 percent over a 10-year follow-up period, compared to similarly situated defendants who did not receive diversion.
The results also suggest large improvements in labor market outcomes, including a 50 percent increase in formal employment rates.
For the cohort studied over the longest period, “these positive effects persisted and expanded even 20 years out,” leading the authors to conclude that “diversion, at least at the critical juncture of someone’s first felony charge, has the potential to fundamentally alter an individual’s trajectory in life.”
The circumstances that produced the subject data are somewhat unique: To measure the causal impacts of diversion, the analysis leverages two sudden lasting shifts in the use of diversion options (one in September 1994, another in November 2007) that each approximate an experiment where the treatment is randomly assigned to eligible felony defendants.
The research design focuses on first-time felony defendants who are charged in the months preceding or following these abrupt changes, subjecting them almost arbitrarily to dramatically different case dispositions. As the study notes, “the main difference from the defendant’s perspective was that before the cut-off one could avoid a felony conviction, whereas afterwards a felony conviction was non-negotiable.”
Defendants who, by chance, ended up charged at the “wrong” time and received a formal felony conviction for their first offense, went on to receive 1.6 to 1.7 additional criminal convictions and 50 percent lower employment rates during a 10-year follow-up period relative to their diverted peers.
Perhaps the study’s most remarkable finding is that those who are often considered the most over-policed—young Black men with one or more misdemeanor convictions—gained the most from diversion. The results indicate that intervening for such individuals at a critical moment (when charged with a first felony offense) could significantly improve their life course.
Interviewed for this post, one of the study authors commented about its potential impact for criminal justice policymakers:
Given the trajectory toward more leniency in the U.S. criminal justice system, the results suggest that increases in diversion options may lead to lower rates of reoffending and higher rates of rehabilitation in the coming years. While much has been written about what doesn’t work in criminal justice policy in the U.S., this study provides compelling evidence for a successful intervention that both improves defendant outcomes and saves public resources. Diversion can be implemented without significant investments or changes to current infrastructure, making it a potential solution for U.S. criminal justice reform.
The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available).
Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction.
An earlier version of this column appeared in the Collateral Consequences Resource Center website. Margaret Love is executive director of the Collateral Consequences Resource Center (CCRC) and the former U.S. Pardon Attorney. David Schlussel is CCRC’s deputy director. They welcome readers’ comments.