Diversion as Punishment

In the weeks after twenty-four-year-old D’Angelo Springer was pulled over in Kankakee County, Illinois, for running a stop sign, he could almost consider himself lucky. Officers who searched his car during the stop found a checkbook stolen during a vehicle break-in and charged him with a felony offense that could have sent Springer to prison for years. But then the Kankakee County prosecutor offered Springer a unique option: the opportunity to sign up for a diversion program instead of standing for trial. If he successfully completed the program—which was run by the private company CorrectiveSolutions and cost $250—the charges against him would be dropped entirely. But the opportunity, as he would soon discover, came with its own set of burdens.

In discussions about reforming the criminal legal system, diversion is often hailed as a non-punitive alternative to the regular court process. It is presented as a valuable off-ramp that diverts a person away from arrest, prosecution, or incarceration if they agree to specific rehabilitative terms, often the completion of a mental health, drug treatment, or restorative justice program. Diversion can be offered for a range of offenses and at a variety of stages during the criminal legal process—before or after a person has been arrested, before or after they have officially been charged with an offense, before or after a plea has been entered. It is typically characterized by broad prosecutorial discretion, with prosecutors deciding which cases are diverted, setting eligibility criteria, and defining both what counts as success and how it is measured.

Supported by a growing number of so-called reform-minded prosecutors, the National District Attorneys Association and the Urban Institute have mapped a total of 499 prosecutor-led diversion initiatives across the country today. Arguments in favor of prosecutor-led diversion highlight the potential of diversion programs to alleviate “the strain on overburdened criminal justice agencies” by allowing for more efficient case processing and financial cost savings. In reality, however, the practice of referring people to diversion programs to unburden the criminal legal system is a way for the neoliberal state to, in the words of the Community Justice Exchange’s resource guide Beyond Criminal Courts: Defund and Divest, transfer “the responsibility of social welfare from the government onto private, for-profit companies, and nonprofit agencies.” At the same time, paradoxically, this reasoning allows for diversion to become yet another way for the state to legitimize itself.

An argument supporters make in favor of the success of prosecutor-led diversion is reduced recidivism rates. But while this metric provides insights into the rate at which rearrest or reconviction occurs, it cannot accurately capture whether a diversion program meets the needs of its participants. Similarly, it cannot indicate whether the root causes that bring people into contact with the criminal legal system have been addressed. Critics of recidivism-based measures have suggested that desistance, which captures the process through which a person ceases to engage in criminalized behavior over time, is a more comprehensive way of assessing diversion outcomes. The process of desistance is understood to be nonlinear, and heavily influenced by social, economic, and psychological factors. It is a better indicator than recidivism of whether a person’s overall life circumstances have improved.

Still, as long as the success of diversion is assessed on the basis of “system-defined markers,” it applies the rules and logics of carceral institutions to a solution that was purportedly created as an alternative to punishment. This alone shows that diversion is not in fact a tool of decarceration but a deeply embedded part of carceral capitalism. By critically examining prosecutor-led diversion as a mechanism of social control that is essential to a punitive logic, I argue that we do not need more or better diversion. If our goal truly is to end mass incarceration, we need to create solutions that are located outside of the prevailing criminal punishment system—solutions that are community-led, holistic, and steeped in mutual responsibility.

As Springer’s case demonstrates, the argument that diversion constitutes an alternative to the punitive logic of the carceral system is deeply flawed. That Springer entered a diversion program in the first place was, after all, contingent on his contact with police and the courts. While this is not always the case, given that some diversion programs, such as Law Enforcement Assisted Diversion (LEAD), are offered pre-arrest, they usually still involve police officers, officers of the court, or parole officers. Other diversion options, such as Teen Court programs, may espouse non-punitive or restorative values but mirror the structure of traditional court proceedings, allowing a peer-led trial, complete with judge and jury, to issue sanctions to wrongdoers. In addition, the claim that diversion is universally beneficial for participants is not true. Studies have shown that in some jurisdictions where diversion programs exist, cases that might otherwise have been dismissed—such as low-level drug offenses or shoplifting cases, or cases where, as one Illinois prosecutor put it, “evidentiary issues” would have prevented a successful prosecution—are instead funneled into them. As such, diversion can produce a “net widening” effect, expanding the reach of the criminal legal system rather than reducing it.

Once enrolled in diversion, program participants can be subject to strict social control in the form of surveillance and restriction of movement. They can also face a range of bureaucratic and logistical barriers—such as hefty program fees, unreliable technology, and unclear instructions—that make successful completion contingent on overcoming obstacles unrelated to the underlying offense. While entering a diversion program might have looked like the lesser evil to Springer at a time when he was potentially facing a prison sentence, he would have been better off if the case had been dropped entirely. The technical, administrative, and financial obstacles of enrolling in, paying for, and completing the diversion programs felt extremely onerous to Springer, who likened the experience of his participation in the diversion program to “detention.” This shows that, although participants in diversion programs remain in their community, they are subject to conditions that reproduce the rules of carceral institutions within the community. Failure to adhere to these conditions—such as violating a curfew, failing a drug screening, or being unable to pay a required fine—can result in collateral consequences, including termination from the diversion program, reinstatement of prosecution, rearrest, and incarceration. This means that diversion as a form of “community treatment” does not reject punitive approaches altogether but merely makes those approaches conditional.

At the same time, prosecutor-led diversion programs often ignore the underlying circumstances that drive marginalization—poverty, lack of opportunity, violence—and that push people into the criminal legal system in the first place. This contradicts what program participants themselves say is needed for diversion to work. In conversations with around fifty research participants across three states—including both recipients and providers of diversion programs—respondents consistently pointed to the importance of concrete, stabilizing resources, such as employment assistance and job placement, housing support, and financial support. They also expressed a desire for opportunities to build life skills through financial literacy training, literacy programs, vocational training, or parenting classes. Participants, then, do not define the success of diversion the way state actors do—through program completion and recidivism rates—but far more holistically as the ability to create better material conditions for themselves, conditions that sustain their well-being and that of their communities, both now and into the future.

In other words, what respondents said they needed, more than stiff program requirements such as curfews or drug screenings—conditions that feel coercive—was connection. They wanted a strong support network, to be surrounded by people who made them feel seen and heard, help with developing a sense of purpose, and access to opportunities for social and emotional learning. These responses reflect a deeply relational understanding of accountability and well-being.

Of course, what a holistic and relational solution looks like will vary from one community to the next. In Hawai‘i, for example, study participants expressed a preference for an approach rooted in strong family relationships (invoking the Hawaiian concepts of ‘ohana and hānai rather than the Euro-American notion of the nuclear family), in tending one’s spiritual connection to the land, and in meeting people’s basic economic needs for food and shelter. In Atlanta, the community-based Policing Alternatives & Diversion (PAD) Initiative—modeled on the aforementioned LEAD programs and co-created in 2015 by Solutions Not Punishment Collaborative—takes a holistic approach by offering a pre-arrest diversion option that deploys non-police crisis responders to provide emergency shelter, food assistance, transportation, and to connect people with service providers. In Marion County, Indiana, Grit Into Grace is a survivor-led diversion program for women who are experiencing or have experienced commercial sexual exploitation. Instead of simply offering structured programming during which participants need to meet certain conditions, the program, although non-residential in nature, offers women space for refuge and rest, for building community and for belonging.

Another hallmark of community-led solutions is their emphasis not just on early intervention but on prevention. When discussing a prosecutor-led restorative justice diversion program in Virginia, for example, research participants critiqued that the main focus was on program completion and that there was not enough focus on prevention. They emphasized the importance of bringing restorative justice practices into the larger community—potentially with the help of former program recipients who could act as credible messengers. The goal, they said, should be to reach community members beyond those enrolled in the diversion program and, importantly, to do so before any contact with the police or court system could occur.

For this preventative approachto be successful, however, a deeper societal transformation is required. First, any meaningful effort to end harm and build opportunities for thriving must begin by addressing the root causes that drive marginalization. Second, we must make space for solutions that exist outside the parameters of the carceral system and without reproducing its dynamics—solutions not conditioned on prior contact with the state and its criminal punishment system, but truly grounded in community needs and preferences.

All of this is only possible if the so-called experts—researchers, service providers, prosecutors, and policy makers—are willing to listen to system-impacted community members and co-design solutions together with them, solutions that draw on the resources and strengths these communities already hold.

^{Image: “El pattern—3rd Ave.,” August 1953. Photograph by Angelo A. Rizzuto. Courtesy of the Library of Congress, Prints and Photographs Division.}

Contributors

Maresi Starzmann Maria Theresia (Maresi) Starzmann is the Water Justice Fellow at the Legal Defense and Educational Fund’s Thurgood Marshall Institute.

Topics

• Decarceral Pathways

Tags

• community supervision
• diversion
• punishment theory