On a muggy October day, George was walking under a highway overpass when a passing police car pulled over. Within minutes, an officer found heroin, cocaine, and a needle on the ground nearby and arrested the elderly Black man on three counts of possession. Hours later George found himself in the county jail on a $5,000 bond that he couldn’t afford to pay.
After a difficult month behind bars, George was offered the option to enter a diversion program that could get him out of jail that same day and keep his record clear. If he went into drug treatment, he was told, the prosecutor would drop all charges against him. He accepted without thinking twice, grateful to be free again.
Once in his assigned outpatient treatment program, though, George ran into a new set of troubles. The staff told him he would be sent back to jail if his drug tests kept coming back positive, but he had been using heroin for well over a decade and found himself too sick to function when he tried to stop. He had to pay for testing and get across town for regular treatment sessions, but he couldn’t find the money for the fees or the bus fare.
Already struggling to meet the daily demands of survival on his meager disability checks, George was desperate to get out of a legal entanglement that was making his life even more unmanageable. Instead, he felt himself pulled in deeper as he failed over and over to meet program requirements and his counselors increased the frequency of sessions and drug testing in response. He began to see it as only a matter of time before they put him back behind bars.
As he reflected despairingly: “I’m a free-ranging animal. That’s a method of farming where an animal look like it’s free but it’s actually not free. And one day somebody gonna eat his ass.”
George had been caught off guard by his experience in the diversion program. The program’s leaders shared a goal with reform advocates around the country: to move vulnerable people out of the legal system and into supportive community mental health treatment that could address the root causes of their involvement in that system. They used national best practices, employed only therapists with graduate degrees, and boasted an astonishingly low rearrest rate of under 4 percent among their graduates.
And yet George was watching more and more of the other people in his program get “eaten.” More than half of them were kicked out and sent back to court, where many faced additional penalties for failing to finish treatment. Finally, afraid that he would end up back in jail if he reported to the program with another positive drug test, George went on the run.
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Programs promising treatment as an alternative to punishment have become a central strategy for criminal legal reformers across the United States, where people with substance use or other mental disorders now constitute a majority of those held in U.S. jails and prisons. Hundreds of thousands of people are now diverted into mental health treatment by the criminal courts every year, and hundreds of millions of public dollars are poured into these diversion efforts.
Advocacy groups and elected officials across the political spectrum are pointing to diversion programs as a crucial strategy to improve health and reduce the broad reach of the penal system, and candidates for elected office around the country are placing them at the center of their political platforms.
But the research in my book, Trial by Treatment: Punishing Illness in an Age of Legal Reform, indicates that we have largely misunderstood the impacts of treatment-based alternatives to traditional punishment. In practice, those alternatives help to maintain the criminalization of illness and even intensify punitive interventions into the lives of the most vulnerable.
The promise of diversion into treatment, I found, leads policymakers, prosecutors, and judges to draw even more people like George into the court system rather than letting them go free. But the treatment those people then receive is fundamentally shaped by the legal institution. Treatment providers are asked to exercise standard forms of coercive control over their court-mandated clients, warping the therapeutic relationship.
The clients most in need of services are often unable to meet that control—because they are too ill to appear at appointments and pass drug tests, too poor to pay for program fees and transportation, and too frightened to keep coming in to the program to ask for mercy—and are thus removed from treatment and returned to court, where they often face harsher punishments than they would have if they had never been diverted.
Taken together, these findings illustrate a process of institutional entrenchment by which reforms can strengthen—rather than transform—established patterns of action.
Punishment has become a primary response to mental illness in the United States. The vast majority of people suffering from mental health conditions are not receiving any treatment. Many instead find themselves behind bars.
On any given day, most of the people held in prisons and jails meet the current medical criteria for mental disorders, whose boundaries are contested but which can be defined (as here by the U.S. Surgeon General in the 1999 report Mental Health) as “alterations in thinking, mood, or behavior (or some combination thereof) associated with distress and/or impaired functioning.” One of the most common among these is substance use disorder—referred to colloquially as addiction—a chronic brain disorder defined diagnostically by the functional impairment and suffering it produces.
As of 2010, an estimated 65 percent of incarcerated people suffered from substance use disorders. Those disorders often co-occur with other forms of mental illness, and a 2023 national survey by Pew found that adults with co-occurring disorders are twelve times more likely to be arrested than those without.
It is hard to overstate the negative impacts of punishing illness. A large body of research has now shown that incarceration is detrimental to people’s long-term mental and physical health. Criminal sanctions also increase social and economic precarity—itself a risk factor for mental illness—by reducing employment, wealth, housing stability, and access to social services.
Even police contact that does not result in criminal charges can have serious consequences. Arrest records can trigger employment discrimination and penalties such as eviction from public housing, and interactions with police can also end in violence: As many as one out of every four police killings is of a person with a psychiatric disorder.
As pressure for change mounts, few criminal legal reforms have garnered broader support than diversion programs that promise mental health care as an alternative to punishment. These programs can operate at a variety of stages in the criminal court system. Judges can assign people to treatment in lieu of pretrial detention, for instance; prosecutors can divert them into programs with the promise that they will drop the criminal charges against them when they complete them; and judges can work with prosecutors and others to supervise treatment in the form of drug courts or other specialty courts, either before or after conviction.
These different forms of diversion differ in their consequences for legal cases, but resemble each other in their basic structure: They ask people to meet certain requirements, monitor their compliance over time, and subject people who don’t meet the requirements to more legal sanctions. Together, they have become so widespread that a criminal legal mandate is now the most common form of referral into drug treatment in the United States (excluding individuals seeking treatment of their own initiative).
Among these programs, the gold standard for many advocates is pretrial diversion run by prosecutors, because it promises to let people avoid criminal convictions altogether. Under this model—which is now in use in nearly every city in the country—prosecutors agree to drop all of the criminal charges against people if they complete therapeutic programs.
Although most programs don’t limit eligibility to people with diagnosable mental disorders, they are widely understood as alternatives to punishing illness. Program directors, judges, and prosecutors frequently told me that they saw mental health conditions—usually substance use disorders—as the underlying issue to be addressed for almost everyone entering diversion. And my national survey of diversion programs indicates that participants are nearly always assigned to some form of mental or behavioral health treatment.
Despite the enthusiastic advocacy for pretrial diversion and its ubiquity in court systems around the country, we have had very little information about its operations or impacts. By its nature, it is doubly shrouded from view. On one hand, it operates under the umbrella of the therapeutic institution, which promises clients confidentiality and guards it closely. On the other, it operates within the criminal court system, which is notoriously unwilling to let the public see its central decision-making processes, including charging, diversion, and plea negotiations.
Diverted defendants also disappear from court records, and their legal trajectories are not tracked in administrative data. In addition, there are usually no laws dictating how the treatment programs must operate or what criteria they should use to decide whether someone should be freed or sent back to court. Programs use their own discretion, and they are not obligated to make information about their operations public.
In the absence of concrete information, a few key misunderstandings have taken hold. First, both advocates and researchers tend to assume that diversion is a one-to-one substitute for traditional sanctions like incarceration, so that it can only reduce people’s exposure to criminal punishment. But the reality is more complicated. Around the country, the promise of diversion into court-mandated treatment has become a central pillar of arguments in favor of criminalizing victimless behaviors such as drug use. And once in place, that promise encourages legal professionals to pull more people into the court system, extending criminal legal control to people who would otherwise have walked free.
Second, diversion is widely understood as a clean exit from the court system. But in fact, legal supervision continues after people are diverted into treatment. Treatment providers are asked to monitor their court-mandated clients closely and to enforce strict performance requirements—usually including attendance at mandatory appointments, payment of fees, and regular drug testing—and to send them back to court if they fail to meet them. Their clients’ keen awareness that they could be returned to court at any moment profoundly shapes the treatment itself. Cognizant of their therapists’ dual roles as enforcers, people tend to interact with them guardedly, in exchanges warped by fear.
Far from operating as exits from the legal system, diversion programs ultimately take on the courts’ duties of judging and sorting people for punishment, giving them new form as they do. In the treatment setting, punishment is allocated largely along lines of social inequality. For healthy, middle-class people, the standard diversion requirements are usually just an inconvenience. They pay their fees, pass their drug tests, and arrive punctually in their cars at each treatment session. They have their cases dismissed on time.
For those with substance use disorder or other mental illnesses, those who are too poor to pay their fees or get transportation, and those who are too afraid of the legal system to ask for help when things go wrong, meeting the same program requirements can be a Herculean task—and the participants who don’t finish are overwhelmingly those who are poor, Black, or severely ill. Those people are returned to court, where they often face harsher punishments than they would have if they had never entered a diversion program at all.
The idea that reform can amplify the processes it purports to change is not a new one. Social theorists such as Michel Foucault, David Rothman, and Stanley Cohen have documented that phenomenon at several key junctures in the past. As Rothman put it in Conscience and Convenience (1980), well-intentioned reforms can take existing problems “to new, more ominous heights.” Contemporary activists such as Mariame Kaba similarly warn against “reformist reforms,” or policies that promise meaningful change in the criminal legal system but in practice only increase the power of that system. But exactly what differentiates the reforms these theorists describe from the rest remains unclear.
Certainly, plenty of reforms have delivered on their promises. Legislative changes reducing felony offenses to misdemeanors or expanding access to parole, for instance, have tended to reduce the reach of the criminal legal system without noticeable unintended consequences. Why and how do some well-intentioned efforts produce meaningful change, while others take old problems to new heights?
As criminologist Thomas Blomberg laments in his foreword to a revised edition of Rothman’s classic work: “We have yet to grasp fully the meaning of a seemingly unending cycle of reform and failure. Clearly, until we are able to master the cycle of understandable intentions leading to bad consequences, we will continue to repeat its legacy of failure.”
Trial by Treatment makes a close analysis of that cycle in a key contemporary site, showing in granular detail how reform that promises transformation can shore up established social structures instead. Despite everyone’s best intentions, when new tools—new programs, new resources, or new forms of discretion—are placed into the hands of the same institutional actors, those tools become incorporated into long-established patterns of action and help to perpetuate those patterns in new and less visible ways. In doing so, they further entrench the power of the adopting institutions in the social world.
Reprinted with permission from Trial by Treatment: Punishing Illness in an Age of Criminal Legal Reform by Mary Ellen Stitt, published by the University of Chicago Press. © 2025 by The University of Chicago. All rights reserved.
Image: Nelson Ndongala / Unsplash
