Issues / Diversion and Alternatives to Incarceration

Prosecutors serve as gatekeepers to the criminal justice system — they often decide who goes into the system, and who gets a second chance. They have a responsibility to use limited public resources wisely with the goals of promoting public safety and reducing harm.

Research has shown that public safety and community well-being are often best served by keeping people who commit low-level offenses out of the criminal justice system and ensuring that deep involvement with the criminal justice system is reserved for the most serious cases. Diversion and alternatives to incarceration provide ways for individuals who have broken the law to be held accountable without disrupting their ability to lead productive lives and contribute to their community.

Information and Resources

“Victims’ Rights” and Diversion: Furthering the Interests of Crime Survivors and the Community

Diversion and deflection programs are highly effective at preventing recidivism, decreasing incarceration, and keeping the limited resources of courts and law enforcement focused on true public safety threats. In this article in the Southern Methodist University Law Review, FJP Executive Director Miriam Krinsky and Director of Strategic Initiatives Liz Komar argue that a decarceral approach that includes diversion and deflection is also in the best interest of crime survivors and their communities.

“[T]he broader needs and interests of crime survivors do not conflict with decarceral diversion and deflection strategies. Rather, the interests of crime survivors are served by less carceral approaches that proactively invest in addressing the underlying drivers of crime and undoing the harms of mass incarceration.”

Reconciling Drug Courts, Decarceration, and Harm Reduction

For the last 30 years, the primary way in which the criminal legal system has attempted to connect people with substance use disorders to treatment is via drug courts. FJP’s new “Issues at a Glance” brief examines mounting concerns with drug courts and factors elected prosecutors should consider in assessing whether drug courts are promoting harm reduction outcomes or, instead, exacerbating cycles of incarceration for drug use.

“I never got into this job to punish people for being ill or addicted or homeless. That goes against everything I believe as a person and as a prosecutor. That’s not just.”
– San Joaquin County, CA District Attorney Tori Verber Salazar

Harm Reduction Responses to Drug Use

For two decades, countries like Portugal and Canada have recognized the ineffectiveness of criminal justice responses to substance use. Instead they’ve embraced harm reduction approaches that save lives while respecting the dignity of people who use drugs. It’s time for the United States and elected prosecutors to follow suit. This FJP “Issues at a Glance” brief offers an introduction to harm reduction for criminal justice leaders, highlights existing harm reduction programs, and suggests a new way forward to prevent overdoses, reduce incarceration, and ultimately save lives.

“We are in the midst of an overdose crisis and cannot sit by and let people die when there are proven interventions that can save lives and help people get into treatment.”
Kings County (Brooklyn), NY District Attorney Eric Gonzalez

Diversion Strategies, Programs and Principles – A National Scan

This FJP compendium offers guiding principles for implementing alternatives to incarceration and developing diversion programs. The brief lists a sampling of programs currently in use across the country. When tailored to a jurisdiction’s unique needs, these programs can reduce criminal justice costs, limit unnecessary individual contacts with the justice system, and reduce the potentially harmful long-term consequences of such contacts, while also enhancing public safety.

Improving Justice System Responses to Individuals with Mental Illness

People with mental illness are significantly over-represented in the justice system. In response, many law enforcement leaders and justice system stakeholders are working collaboratively with public health officials to develop cross-system solutions. This FJP “Issues at a Glance” brief highlights key principles and important considerations for improving responses to individuals experiencing a mental health crisis, as well as strengthening mental health diversion programs and reentry initiatives.

There are numerous opportunities for prosecutors to reduce the number of individuals with mental illness in the criminal justice system. This companion FJP “Issues at a Glance” brief on mental health offers implementation strategies, as well as examples and practices from around the nation, that model public health responses and cross-system interventions that can avoid criminalizing mental illness.

“We’ve all struggled in every city and throughout the county with homelessness, mental health and substance abuse disease. These are difficult, complex situations that didn’t happen overnight and won’t be solved overnight. But they will be solved if we work together.”
–San Joaquin County (CA) District Attorney Tori Verber Salazar

LEAD Diversion — Evaluation Summary

This document reviews findings from four separate evaluations of the LEAD diversion program, reporting recidivism outcomes, criminal justice costs, housing and employment outcomes, and participant perception.

Moving Away from Punitive Practices and Toward Restorative Justice

Prosecutors have the power to heal communities by embracing restorative justice, which balances accountability, compassion and equity. In this New York Law School Law Review article, FJP’s Miriam Krinsky and Taylor Phares explore the promise of restorative justice approaches—including facilitated conversations between harmed and responsible parties—as an alternative to the justice system and an effective way for prosecutors to deliver what carceral approaches often fail to accomplish: healing of victims, a deepened sense of personal accountability, and stronger bonds of trust with communities.

“The job of a district attorney… [is] more than simply punishing people who commit crimes. It requires engaging with communities to determine what safety and justice mean for them, identifying the most effective ways to hold accountable those who do harm, giving victims a sense of justice and healing, and promoting strong, healthy communities.”
–Kings County (Brooklyn), Ny District Attorney Eric Gonzalez

Speaking Out

I resuscitated one of my sons after an overdose. Court, Biden must push prevention sites.

The overdose epidemic has raged during the pandemic, underscoring the failure of our nation’s drug policies and the need for urgent federal action. Both the Supreme Court and the Biden administration have an opportunity to save lives by supporting overdose prevention sites, where people can receive life-saving care and access treatment and resources. In this USA Today op-ed, Philadelphia District Attorney Larry Krasner, FJP Executive Director Miriam Krinsky, and Dr. Bonnie Milas – who lost two sons to drug overdose – highlight why federal leadership is critical to implementing the proven harm reduction strategies that can address this crisis.

“Overdose prevention sites are an effective tool to save those struggling with addiction, but we have resisted them, and refused to learn from other nations that have embraced a public health model that addresses substance use disorder as a disease, not a crime.”

80 Criminal Justice Leaders Urge Supreme Court Not to Criminalize Lifesaving Overdose Prevention Sites

Too many lives have been cut short by the overdose epidemic, and every day of inaction puts more people in danger. That’s why 80 current and former elected prosecutors and law enforcement leaders and former Department of Justice officials filed an amicus brief in the U.S. Supreme Court in support of overdose prevention sites. These facilities are proven harm reduction tools that save lives and help alleviate the adverse impact of substance use disorder and the ongoing overdose epidemic that is devastating many communities. For more, read the brief and release.

“There is an urgent need to fortify trust in the justice system. Failing to address the loss of life resulting from drug overdoses—and criminalizing a community-based public health organization working to save lives—will further erode trust. If there were ever a time to demonstrate that the justice system values the dignity of human life, that time is now.”

Why It’s Time to Abandon Drug Courts

For the last 30 years, the primary way in which the criminal justice system has attempted to connect people with substance use disorders to healthcare is via drug courts. However, research shows that people who use drugs need community-based harm reduction and treatment services, not the threat of criminal sanction. In this op-ed in The Crime Report, FJP Executive Director Miriam Krinsky and Northeastern University Professor of Law and Health Sciences and Faculty Director of the Health in Justice Action Lab Leo Beletsky share why we must look beyond drug courts and bring new thinking to drug policy.

“[D]rug courts aren’t the solution to reducing drug-related incarceration or saving lives. Criminal justice leaders must look at the evidence, and embrace a public health approach to drugs…. America deserves better. We’ve lost too many lives already.”

Why COVID-19 Makes Marijuana Enforcement a Waste of Resources

Despite gains in drug policy reform in the 2020 election, and even as 38 states and Washington, D.C. have now decriminalized marijuana or authorized its medical use, a marijuana arrest occurred every 58 seconds in 2019. In this op-ed in The Crime Report, Washtenaw County (Ann Arbor), Michigan Prosecuting Attorney-Elect Eli Savit, Law Enforcement Action Partnership Executive Executive Director Maj. Neill Franklin, and FJP Executive Director Miriam Krinsky discuss why marijuana reform promotes public safety, is fiscally responsible, and is widely supported by the public. They urge action on federal reforms to decriminalize marijuana.

“Billions have been wasted on a futile effort to eradicate marijuana, all while the average person loses more and more faith in our criminal legal system.”

Philadelphia case could clear the way for safe injection sites

As both the COVID-19 pandemic and the opioid epidemic rage on across the United States with devastating consequences, a federal appellate court is hearing arguments in a case to allow Safehouse, a Philadelphia nonprofit organization, to open the country’s first overdose prevention site. Harm reduction strategies are essential as COVID cases and overdoses continue to rise, and in this op-ed in the San Francisco Chronicle, San Francisco District Attorney Chesa Boudin, Chittenden County (VT) State’s Attorney Sarah George, and FJP Executive Director Miriam Krinsky share why these sites are needed now more than ever.

“As leaders in prosecution, we know that OPSs provide lifesaving care that countless communities desperately need – and in the wake of the surge in overdoses, we need them more than ever.”

Criminal Justice and Policy Leaders Call for Federal Marijuana Law Reforms

The racial disparities and over-policing associated with marijuana criminalization have brought trust in the police to an all-time low while harming public safety. Over 60 current and former prosecutors and law enforcement officials sent a letter to the U.S. House of Representatives supporting the federal decriminalization of marijuana, a critical step that would promote equity and allow law enforcement to focus their resources on preventing harm and addressing true public safety concerns. In collaboration with The Law Enforcement Action Partnership, The Justice Collaborative Institute, and Data for Progress, FJP also released a report with new polling showing 62% of likely voters – including 60% of Republicans – support decriminalization, expungement of previous convictions, and investment in communities harmed by past drug policy. For more, read the release, letter, and polling report.

“Legalizing, regulating, and controlling marijuana… is an opportunity to repair and strengthen the relationships between us and the people we serve; to shift public resources toward the most serious crimes; to reduce the size and influence of the illicit market; and to usher in an era of health-centered approaches — rather than criminal punishment — for people who use drugs.”

“It’s Time For Drug Policy Reform – In America and Across the Globe”

While the US has been fighting a failed war on drugs, much of the rest of the world has chosen a different path – one grounded in public health responses over criminalization. In this Salon op-ed, Louise Arbour, the former High Commissioner for Human Rights, former justice of the Supreme Court of Canada and member of the Global Commission on Drug Policy; former Premier of Western Australia and member of the Global Commission on Drug Policy Geoff Gallop; and FJP Executive Director Miriam Krinsky discuss how United States drug policy has failed, and why prosecutors and other elected leaders must embrace harm reduction strategies that have a proven track record of success in other parts of the world.

“Criminalizing people who use drugs doesn’t just fail to make people safer and healthier, it makes them sicker and more likely to overdose in the shadows.”

It’s Time for the US to Embrace Overdose Prevention Sites

Prosecutors and other law enforcement leaders are increasingly moving away from punitive and incarceration-based responses to drug use and instead embracing public health solutions that meet people where they are and save lives. In this Philadelphia Inquirer op-ed, former Albany, NY Police Chief Brendan Cox, Minister Adarrel Omar Fisher and FJP Executive Director Miriam Krinsky discuss landmark litigation – being watched by jurisdictions cross the nation – that will determine whether the Philadelphia nonprofit Safehouse will be allowed to move forward with plans to operate our country’s first overdose prevention site. They recount experiences in other countries that exemplify harm reduction approaches and why we must embrace strategies that save lives.

“It’s time to choose a different pathway – one rooted in proven strategies that recognize people’s humanity and the urgency of this issue.”

“Baltimore Prosecutor Makes ‘Bold and Groundbreaking’ Decision Regarding Marijuana Arrests”

Using limited resources to prosecute marijuana use promotes racial disparities, erodes trust in the justice system, and does nothing to advance public safety. In a Baltimore Sun op-ed, FJP Executive Director Miriam Krinsky and former Albany, NY Police Chief Brendan Cox discuss efforts by Baltimore City State’s Attorney Marilyn Mosby to repair the damage done by decades of the “war on drugs” by rejecting the criminalization of marijuana use.

“Criminalization of people who use drugs, especially those who use marijuana, has done little more than plunge our most vulnerable communities into intergenerational cycles of poverty, trauma, incarceration and disenfranchisement.”

“Prosecutors Can Take the Lead in Tackling Mental Illness the Right Way”

Judge Steven Leifman of the Eleventh Judicial Circuit Court of Florida and FJP Executive Director Miriam Krinsky discuss in a Miami Herald op ed how DAs can forge more effective cross-system public health responses that avoid criminalizing individuals struggling with mental illness.

“We know that excessively incarcerating people with mental illness is not making our communities safer. It’s making them sicker — at an enormous human and financial cost. It’s time for prosecutors to step up and lead the national movement for more compassionate and effective mental-health and criminal-justice systems.”

District Attorney Discusses L.E.A.D: Law Enforcement Assisted Diversion”

Bernalillo County (Albuquerque, NM) District Attorney Raúl Torrez describes his plan to begin a Law Enforcement Assisted Diversion (LEAD) program that will save money, reduce recidivism, and help keep low-risk individuals out of the criminal justice system. Watch the video here.

“Prosecutive Winds of Change”

King County (Seattle, WA) Prosecuting Attorney Dan Satterberg and FJP Executive Director Miriam Krinsky underscore the important role of prosecutors in promoting a sensible and fair justice system and describe how newly elected local prosecutors are pushing the criminal justice system away from “tough on crime” attitudes and toward new prevention-oriented thinking. Read more here.

Examples of Innovation

Florida Juvenile Citation Program

4th Judicial Circuit (Jacksonville, FL) State Attorney Melissa Nelson launched a new juvenile citation program, ensuring more youth will participate in Teen Court, where youth will be held accountable with minimal criminal justice system involvement and receive access to appropriate services. Read more here.

New Policy to Divert Marijuana Possession Cases from the Criminal Justice System in Harris County

Harris County (Houston, TX) District Attorney Kim Ogg implemented a new expansive marijuana pre-arrest diversion program. Read more here.

The King County (WA) 180 Program

The 180 Program is a community partnership and pre-filing diversion program that seeks to keep juveniles out of the criminal justice system. Read more here.

Manhattan DA Press Release Ending Criminal Prosecution of Low-Level Subway Offenses

Manhattan NY District Attorney Cy Vance announced his office will no longer criminally prosecute low-level subway misdemeanors unless there is a compelling public safety rationale to do so. Read more here.