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

Improving Justice System Responses to Individuals With Mental Illness: A Toolkit for Prosecutors

DEC. 2022 – People with mental illness are overrepresented throughout the justice system despite clear evidence that the vast majority of individuals who struggle with these issues need help, not a jail bed, and pose no threat to their communities. But without robust mental health crisis response systems and investments in alternatives to incarceration, police are often unnecessarily called to respond to mental health crises and prosecutors resort to overly carceral and punitive approaches. This FJP toolkit provides recommendations and useful resources for DAs interested in promoting compassionate, effective, and tested innovations and strategies to improve the justice system’s response to individuals with mental illness.

“We can’t incarcerate our way out of substance abuse; incarcerate our way out of mental health. We have to treat it.”
– St. Louis County, MO Prosecuting Attorney Wesley Bell

Drug-Induced Homicide Prosecutions

JULY 2022 – Drug-induced homicide prosecutions have increased greatly in the past decade in an unsuccessful effort to quell our nation’s overdose crisis. DIH cases charge individuals with homicide when they supply drugs that result in a fatal overdose, regardless of intent. Our issue brief explains why DIH prosecutions are ineffective and can actually exacerbate our nation’s overdose epidemic and discourage seeking help at a critical moment. It also recounts how prosecutors can adopt harm reduction approaches to substance use that save lives and promote public safety.

“This is a public health crisis, and it [has] wound up at the doorstep of the criminal justice system, and we’re not going to prosecute our way out of this problem…. We can use our discretion to ensure that the criminal justice system doesn’t punish people who need help. We can convene policy and health leaders to work together promoting health- and treatment-based models and we can push for solutions that are grounded in compassion and evidence.”
– Berkshire County, MA District Attorney Andrea Harrington

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

OCT. 2021 – 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

FEB. 2021 – 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

AUG. 2019 – 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

SEPT. 2017 – 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

JULY 2018 – 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

SEPT. 2017 – 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

JAN. 2020 – 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

The Supreme Court must reject incarceration as a response to homelessness

APRIL 22, 2024 – The U.S. Supreme Court is considering Grants Pass v. Johnson, a monumental case that will determine whether state and local leaders can arrest people simply for living outside even when adequate shelter is not available. In Salon, former San Francisco District Attorney Chesa Boudin, former Albany, NY Police Chief Brendan Cox, and FJP Executive Director Miriam Krinsky explain why this misguided approach to homelessness will further devastate local communities, drain valuable public resources, and exacerbate underlying challenges.

“Police and prosecutors are poor substitutes for social services, and more often than not, involvement in the criminal legal system turns difficult situations into dire ones…. Punishment is not a solution to the housing crisis; it’s an escalation of it that makes us all less safe.”

It’s time for state and local leaders to embrace overdose prevention centers

MARCH 18, 2024 – Overdose deaths in the U.S. have risen nearly 540% since 1999, underscoring the dire need for state and federal officials to embrace new approaches grounded in public health instead of continuing to pursue ineffective punitive policies. In an op-ed in VT Digger, Chittenden County (Burlington), VT State’s Attorney Sarah George, Brooklyn District Attorney Eric Gonzalez and FJP Executive Director Miriam Krinsky explain why leaders at all levels of government must support harm reduction strategies like overdose prevention sites to save lives and improve public safety for everyone.

“[W]e firmly believe that saving lives and promoting care should take precedence over prosecuting and incarcerating drug users. These strategies align with public safety and public health objectives and have earned strong support in our communities.”

It’s time to take punishment out of our mental health response

DEC. 8, 2022 – All too often, people experiencing mental health crises in the U.S. are met with police and punishment instead of care and compassion. In an op-ed in USA Today, Chittenden County State’s Attorney Sarah George, retired Albany, N.Y. Police Chief Brendan Cox, and FJP Executive Director Miriam Krinsky explain how elected prosecutors, law enforcement, public health experts, and community leaders can come together to develop new responses to mental health that promote the health and safety of individuals and communities.

“We need more prosecutors, law enforcement and local leaders to recognize that responding to mental illness with violence and incarceration only compounds harm.”

Gavin Newsom’s Veto of California Safe Injection Sites Sacrifices Lives to Politics

SEPT. 7, 2022 – California Governor Gavin Newsom vetoed a bill that would have allowed San Francisco, Los Angeles, and Oakland to operate overdose prevention sites – legally-sanctioned spaces where people can consume self-supplied drugs under the supervision of staff trained to respond in the event of an overdose. In an op-ed in The Sacramento Bee, FJP Executive Director Miriam Krinsky and Research & Policy Associate Reeve Jacobus explain why policymakers like Governor Newsom are putting politics above people’s lives by ignoring extensive research showing the life-saving benefits of OPSs.

“[Overdose prevention] sites are a part of a harm reduction strategy that seeks to meet people who use drugs where they are rather than try to criminalize and punish our way out of a public health crisis.”

Drug-induced homicide should not result in prison time for those who call for help

AUG. 2, 2022 – Drug-induced-homicide prosecutions involve charging individuals with homicide when they supply drugs that result in a fatal overdose, even if there was no specific intent to kill. DIH prosecutions have become more common in recent years despite evidence that they are ineffective at reducing overdoses and can in fact exacerbate the harms of this crisis. Read more about why prosecutors should instead embrace a harm reduction approach in this USA Today op-ed by Pima County Attorney Laura Conover, FJP Executive Director Miriam Krinsky, and Northeastern University School of Law’s Health in Justice Action Lab Faculty Director Leo Beletsky.

“We have already lost too many lives these past few years. Now it’s time for our elected leaders to implement evidence-based drug policies that save lives. Thoughtful strategies to address our overdose crisis are needed, and they do not include simply putting more people behind bars.”

‘Crack pipe’ rhetoric is not only wrong, it’s deadly. Harm reduction efforts save lives.

FEB. 20, 2022 – After the Biden Administration closed its application period for a harm reduction grant program, there was a media firestorm and backlash from some around the funding of safe smoking kits, which have been proven to help save lives. The attacks were filled with misinformation and racist undertones stemming from decades of criminalizing drug use and “just say no” messaging. In an op-ed in USA Today, FJP Executive Director Miriam Krinsky urges leaders to reject false rhetoric around drug use and instead embrace proven harm reduction strategies – like this grant program – that can help save lives.

“[A]larmist tweets and headlines obscured a far more important question. The nation should have been asking: Will the Biden administration’s program ultimately reduce suffering, avoid illness and save lives? Much of the evidence indicates that it will.”

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

OCT. 7, 2021 – 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

SEPT. 17, 2021 – 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

MARCH 5, 2021 – 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

DEC. 23, 2020 – 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

NOV. 16, 2020 – 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

AUG. 19, 2020 – 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”

OCT. 19, 2019 – 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

AUG. 23, 2019 – 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”

FEB. 1, 2019 – 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”

MARCH 21, 2018 – 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.”

“Prosecutive Winds of Change”

JUNE 7, 2017 – 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.