D. Alan Henry is director emeritus of the Pretrial Services Resource Center, based in Los Angeles. He has testified before numerous state and Congressional committees, written extensively about pretrial issues, and provided technical assistance in the areas of jail overcrowding, pretrial release, supervision, and diversion to state, local, and federal officials in both adult and juvenile systems. H e spoke with Center staff about pretrial diversion.
What’s the history behind the development of diversion programs in the U.S.?
Back in the ’70s, prosecutors and judges realized that they were getting all sorts of relatively minor cases coming in, often involving drugs, and just didn’t have the capacity to prosecute them in a timely way. An old idea was resuscitated, the idea that maybe all these people don’t need to be prosecuted, maybe the system itself can be toxic or criminogenic for people coming into it, especially first-time offenders, and perhaps a minor charge should be an opportunity to take those arrestees out of the system and put them on a different track so they can live happily ever after—if they do certain things and abide by a formal contract. That’s a bare bones description of it, and it’s changed somewhat over time. Now when some people talk about diversion, the difference between diversion and probation gets very fuzzy.
How would you describe a typical diversion program?
Well the first issue is who gets in. And if it’s a pre-adjudication program, the first thing people look at is the charge. Most diversion programs work with less serious charges.
As to the program itself, the National Association of Pretrial Services Agency (NAPSA) diversion standards represent the best writing on what a program should look like, although they aren’t adhered to by all diversion programs by a long shot. Still, they’re a good model of what should happen. It always gets down to the basic question of “Okay, what are we going to do with this guy who has a problem but who also has allegedly done something illegal? Do we first take on the problem or do we have to find him guilty before we have the right to do tell him what to do?” And that’s the sticky wicket that diversion’s dealt with for years.
I think the reason that diversion really went from being the hot thing in criminal justice back in the ’70s and ’80s to being less popular wasn’t that the programs weren’t doing good, but because they often didn’t collect the data to show that they were doing good. It’s possible that the same thing could happen today with problem-solving courts, though the Center for Court Innovation seems to be making sure that doesn’t occur. It’s very hard; it’s very hard to get people who are running a program, usually with minimal dollars, to take some of those few dollars from direct services to dedicate to collecting numbers...they’d rather use every penny to offer help to more people.
Do you think that diversion programs are having a positive effect on people who might otherwise get lost in the system?
I would love to see the evidence that they are; and I’ve seen and heard anecdotal testimony to that effect. But I think in some cases it’s just the opposite, people are brought into the system because of diversion; if the program wasn’t there, the prosecutor wouldn’t even accept the case. Those people should be referred to something, but it should be out of the criminal justice system.
How, if at all, do diversion programs relate to problem-solving courts?
I think like problem-solving courts, diversion programs have targeted a particular subgroup—whether it’s young kids or first-time offenders or drug users. Both problem-solving courts and diversion programs try to look at what brought the person into the system and see if they can’t address that issue, usually through treatment of some kind or other social services. The main difference that I see is that in the problem-solving court you have the judge taking a more prominent role, whereas in traditional diversion the prosecutor pretty much decides what happens.
So problem-solving courts and diversion programs are doing many of the same things?
I think so. I think that problem-solving courts are really a type of diversion; they’re diverting offenders out of the traditional system and doing something different, something they hope will keep the arrestee from coming back.
Would you consider community courts to be a form of diversion?
I would, from what I’ve seen and read. They’re focusing more on the issues that brought the person in rather than on the charge itself.
Do you think that anyone interested in looking at problem-solving approaches to criminal justice should look at diversion as a part of what they’re doing?
I would say that anyone who’s planning on looking at developing a problem-solving court should first look at what sort of processes are already there to help the population that they’re targeting; probation, parole, diversion, conditions of pretrial release….
Ultimately, diversion is one of the arrows in the quiver, as they used to say. It’s not going to solve all the problems. I think there should be police diversion—some places do that, where the police have the authority on certain charges to drop people off into programs instead of just locking them up and charging them. And I think there should be problem-solving courts. I think a system could have all of these, lots of options available for dealing with the underlying issues that are associated with criminal behavior. Remember though, all diversion programs aren’t created equal. Some are quite good; others not so. So be careful.
January 2007