"People, Not Charges": Combating Racial Disparities through Early Diversion

Among the disruptions of the COVID-19 pandemic was a shock to the legal system: in Los Angeles, the total jail population fell by an unprecedented margin in 2020. However, this drop was not reflected in the percentage of people of color incarcerated in L.A.; this percentage, in fact, increased in the same span of time. This demonstrates that despite reducing incarceration overall, racial disparities in jails and prisons were not reduced. This reality calls for a concerted effort to combat the sources of inequity in the criminal legal system. Early diversion programs—or providing alternative paths out of the justice system as early as possible—can function as key instruments in this effort.

The purpose of early diversion is to redirect people away from jails and prisons and into support networks and community resources that can address their underlying needs. Instead of attacking the symptoms, we can respond to crime by touching upon what are, in many cases, the root causes: mental health needs, economic insecurity, substance use, and alienation from community life.

But when it comes time to determine who is and is not eligible for early diversion, many programs focus on the type of charges facing the individual in question, rather than whether or not their contact with the legal system stems from unmet service needs. It is common, for example, for diversion programs to exclude people with prior criminal charges of certain types from participation. But given that predominantly Black and Brown neighborhoods are over-policed relative to others, these exclusions likely affect people of color disproportionately, cutting them off from access to the services and resources that diversion programs provide.

The advice offered by the Center for Justice Innovation (formerly Center for Court Innovation) in a recent report entitled From Taxi to Takeoff can be summed up in the motto, “Focus on people, not charges.”

Rather than making broad categories of charges the focal point of decisions regarding eligibility, courts and other system actors can look at individual needs and the resources that are available to support. Our West Coast Initiatives team has seen this work in practice. In a number of diversion programs, a handful of participants who would have otherwise been excluded from programming based on their charges were mistakenly admitted; and when several of these successfully graduated, one site made an informed decision to expand its eligibility criteria. By treating eligibility restrictions as tentative instead of absolute, practitioners have greater flexibility to approach each individual on a case-by-case basis.

Rigorous data collection to track successes and failures is essential to address inequities. If, for example, certain exclusion criteria are putting a particular racial group at a disadvantage, organized data-gathering is a sure-fire means of detecting these patterns proactively. And because racial disparities can be reproduced in indirect and complex ways, data is often an indispensable tool in putting our finger on unjust processes that might otherwise go undetected. Only by bringing these connections to light can practitioners adapt and rework their programs in order to advance legal system equity in an effective and informed way.

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The report on early diversion was supported by funding through the Microsoft Justice Reform Initiative and the MacArthur Safety and Justice Challenge and would not have been possible without our Los Angeles County and City partners named in the full document.