Sentencing Diversion Programs

Sentencing diversion programs are formal, institutionalized programs for people with mental illness that were created to reduce the volume of and frequency with which this population is involved in the criminal justice system as defendants. Their primary purpose is to divert persons with mental illness (PMIs) from the criminal justice system (including jail and prison) into community, outpatient mental health, and substance abuse treatment. Diversion, which can occur at any point in the criminal justice process (from prearrest to postconviction), has several defining features. These features include sharing a common goal of reducing recidivism rates of PMIs, relying on a therapeutic jurisprudence model, having predefined target populations, using a carrot-and-stick approach to achieve compliance, maintaining collaborations across multiple systems of care, and sometimes mandating treatment. Preliminary research on the effectiveness of the programs is equivocal but promising, in that diversion can improve the lives of PMIs involved in the criminal justice system.

The Purpose of Sentencing Diversion Programs

Diversion has always been an informal option for the police and prosecutors, but the development of formalized programs is relatively recent. Diversion is an attempt to stem the tide of PMIs who enter the criminal justice system. An estimated 900,000 persons with serious mental illness are booked into U.S. jails annually. (Serious mental illness is typically defined as having a schizospectrum, bipolar, or major depressive disorder.) Approximately 10% to 15% of jail and prison inmates have a serious mental illness compared with about 3% of the general population. Moreover, PMIs who are involved in the justice system tend to have repeated, “revolving-door” contact with law enforcement and the courts. It has been said that U.S. jails and prisons have become de facto mental health institutions. Because of the volume of PMIs involved in the criminal justice system and the associated problems (e.g., behavioral problems while incarcerated, access to medication), formal diversion programs have been developed to help reduce the number and frequency with which PMIs pass through the criminal justice system. Typically, diversion programs are premised on the notion that PMIs who access and engage in community treatment will be less likely to have police contact and less likely to be charged with crimes, thereby reducing the repeated cycling.

Timing of Sentencing Diversion

There are two main forms of diversion programs: pre-booking (or prearrest) and postbooking (including mental health courts). Although diversion can occur at any point along the criminal justice continuum, including probation and parole, one goal of diversion is to identify potential participants as early as possible. The timing of diversion, however, can depend on awareness of the mental illness and of the diversion program itself. For example, an inmate may not be recognized as having a mental illness (or as being a suitable candidate for the program) until after several months of pretrial detainment. Additionally, in larger urban communities, many criminal justice personnel with whom the PMI interacts may not even know a diversion program exists in their locale.

The timing of the referral and whether the program is pre- or postbooking also influence the diversion process itself. Specifically, prebooking programs divert the PMI from being arrested and charged and, thus, from criminal justice involvement entirely. That is, for PMIs involved in prebooking diversion programs, law enforcement has used their discretion to not arrest them. Currently, there are an estimated 120 prebooking diversion programs. A growing form of prebooking diversion programs are crisis intervention teams (CITs). The CIT model is primarily concerned with de-escalating crisis situations between police officers and PMIs in the field, but it also involves making informed decisions about when to arrest PMIs rather than taking them to treatment settings.

Postbooking diversion occurs after the person has been charged. Two critical points for this type of diversion to occur are when making decisions concerning pretrial release and deferring prosecution. Usually, the decision to release a defendant occurs soon after the arrest. If the arraignment judge is aware that the person has been accepted into a diversion program that is partially responsible for community supervision, the judge may be more inclined to release the person from jail. Similarly, when the prosecutor is deciding whether to go forward with a case, knowing that the defendant is involved in a diversion program, and is thus likely to be getting treatment and supervision, can affect that decision. To date, there are approximately 150 postbooking U.S. diversion programs that are not mental health courts.

Mental health courts, while a form of postbooking diversion, are distinct. Mental health courts are criminal courts with typically one judge presiding. Clients are supervised by the judge (in periodic status review hearings) and in the community by mental health and/or criminal justice professionals. Often, communities that have instituted successful drug courts will form mental health courts as well. The courts are part of a growing field of specialty courts, which include domestic violence, DUI, and even teen smoking cessation courts. The first two mental health courts were formed in 1997. In 2006, there were more than 130 U.S. mental health courts.

Features of Sentencing Diversion Programs

Diversion programs are most often created by individual communities and thus meet the needs of that specific jurisdiction. As such, diversion programs can appear quite distinct from one another, especially when examined at a micro level. However, at a macro level, there are several shared and defining aspects of diversion programs.

Common Goal

Diversion programs have the shared goal of reducing the frequency with which PMIs become justice involved. They also aspire to linking their clients with community treatment services and, quite often, with other services such as vocational training, housing, and accessing government funds. Generally, diversion personnel are concerned with what is in the best interests of their clients, and many programs are paternalistic in their nature.

Therapeutic Jurisprudence

Therapeutic jurisprudence is defined as an outlook that views the law as a system for social change (either in a therapeutic or nontherapeutic direction). Diversion programs strive to improve the lives of their participants. The programs, particularly mental health courts, are also less adversarial and less formal than traditional criminal court processing. In mental health courts, often, defendants can approach and speak to judges directly, and sometimes clients and judges will hug. Most programs are also lenient, have realistic expectations, and understand that the population they are serving is prone to relapse and instability. For example, if a client in a mental health court misses a scheduled court hearing, the immediate response is not to issue a bench warrant but rather to use a gradated list of sanctions that increase in intensity as noncompliance increases. Expulsion from the program and incarceration, while possible, are usually the last resorts. Finally, diversion program clients tend to report high levels of procedural justice, in that they feel they have a “voice,” are respected, and heard.

Target Populations

Diversion programs set criteria for who is allowed entry into the program. Mental health screening and assessment procedures are important components necessary to diversion. Most programs have both clinical and criminal eligibility criteria. Clinical criteria can be specific or broad and can include, for example, accepting only persons diagnosed with Axis I (Diagnostic and Statistical Manual of Mental Disorders, fourth edition [DSM-IV]) disorders or requiring a link between the commission of the crime and the person’s mental health problem. Criminal criteria can include limiting the program to misdemeanants or requiring victims’ assent to be involved. For the most part, diversion programs exclude violent felons for public safety reasons. Finally, some communities have developed women-only diversion programs, recognizing that male and female defendants with mental illness have different treatment needs (such as trauma-based services) and routes to recovery.

Carrot-and-Stick Approach

All diversion programs offer some end benefit, whether it be avoiding an arrest, avoiding a jail or prison sentence, and/or having the charges dropped or reduced. However, in exchange for not being charged or sentenced, the person agrees to go to mental health and substance abuse treatment in the community, to take prescribed medications, and sometimes to attend periodical status review hearings before a judge. If the person is not compliant on a repeated basis, the charges or sentences that were held in abeyance can be instated. Alternatively, some programs require participants to plead guilty and only after successful completion reduce the original charges (e.g., from a felony to a misdemeanor) or expunge the conviction from their criminal record. Thus, like drug courts, diversion programs use this carrot-and-stick approach to induce cooperation and compliance. As mentioned above, this is generally not done in a coercive manner but rather with an eye toward the person’s best interest.

Cross-System Collaborations

Almost by definition, diversion programs need to involve professionals from the criminal justice and mental health systems who work collaboratively. Very often, a group of key stakeholders in the community come together to form the program. These stakeholders can include a judge, state and/or county mental health and substance use officials, attorneys, pretrial service personnel, correction officers, advocates for mental illness, and the police. Elements identified as being essential to the success of diversion programs are (a) ongoing and active cross-systems collaboration, (b) written memorandums of understanding between the systems, (c) strong leadership, and (d) a “boundary spanner.” A boundary spanner is a staff member who bridges across the mental health, criminal justice, and substance abuse systems and who serves to coordinate cross-systems collaborations.

Mandated Community Treatment

Many, but not all, diversion programs can be considered a form of mandated community treatment, in that they require the person to go to treatment and to take prescribed medications and will impose consequences when the person is nonadherent. Typically, prebooking diversion does not mandate treatment or have long-term follow through with divertees. In contrast, mental health courts, while voluntary to enroll, exemplify the concept of mandated community treatment.

Effectiveness of Sentencing Diversion Programs

In regard to the effectiveness of diversion, preliminary research has shown mixed but promising results. On one hand, there is research demonstrating that diversion programs can be successful in achieving their goals of reducing recidivism and linking clients with treatment. For example, a research study examining nine pre- and postbooking diversion programs found that in comparison with a group of similar but nondiverted individuals, divertees spent more days in the community than in jail, received a higher number of treatment services, and showed improved mental health symptoms. On the other hand, the same study also showed that divertees had higher rates of emergency room usage and hospitalizations, and a similar number of new arrests compared with nondivertees. Additionally, a study on clients from one mental health court found reductions in the number of arrests and increases in the number of treatment services used, but no change in mental health symptoms over the course of court participation.

Studies have also shown that there are individual characteristics that influence whether diversion is successful. That is, diversion is not a “cure-all” that works equally well for every participant. The exact characteristics (such as gender, criminal charges, diagnosis) that lend themselves toward success are still being explored. Major research studies of all forms of diversion programs are now underway.

Future of Sentencing Diversion Programs

In the years to come, diversion programs are likely to continue to proliferate. President George W. Bush’s New Freedom Commission on Mental Health recommended the wide adoption of these programs, and the federal government has provided millions of dollars in financial support to create new, and sustain existent, programs. The number of persons with serious mental illness involved in the criminal justice system is a significant and complex problem. Diversion can play an integral role in the solution to this problem.

References:

  1. Broner, N., Lattimore, P., Cowell, A. J., & Schlenger, W. E. (2004). Effects of diversion on adults with co-occurring substance abuse and mental illness: Outcomes from a national multi-site study. Behavioral Sciences and the Law, 22, 519-541.
  2. Council of State Governments. (2002, June). Criminal Justice/Mental Health Consensus Project. New York: Author.
  3. Redlich, A. D., Steadman, H. J., Monahan, J., Petrila, J., & Griffin, P. (2005). The second generation of mental health courts. Psychology, Public Policy, and Law, 11, 527-538.
  4. Reuland, M. (2005). A guide to implementing police-based diversion programs for people with mental illness. Delmar, NY: National GAINS Technical Assistance and Policy Analysis Center for Jail Diversion.
  5. Steadman, H. J., Cocozza, J. J, & Veysey, B. M. (1999). Comparing outcomes for diverted and non-diverted jail detainees with mental illness. Law and Human Behavior, 23, 615-627.

Return to the overview of Sentencing and Incarceration in Forensic Psychology.