As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process. This practice sounds like a win-win for communities — and it’s successful by many metrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.

This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.

The research is clear: Diversion alone isn’t enough to address the harms of racialized mass criminalization. Left to their own devices, people who design diversion programs and policies have built in restrictions and subjectivity that disproportionately thwart people of color, forcing them further down the road to incarceration. Existing or proposed programs must take steps to ensure that post-arrest diversion programs are equitable and accessible by all, particularly communities that are overrepresented in the criminal legal system. These steps include (but are not limited to):

  • Vastly expanding eligibility criteria to address the reality that Black and Hispanic people have more frequent contact with police, jails, and courtrooms that can lead to exclusion from diversion programs. 
  • Making diversion financially accessible to all participants, especially low-income people who may resort to extreme measures in order to stay in compliance. 
  • Mitigating collateral consequences of a conviction. The requirement to plead guilty in order to participate in diversion is illogical and overly burdens defendants of color who, once they have a conviction record, are likely to struggle finding employment, housing, or a future diversion opportunity. 

Read the full article about racial disparities in diversion programs by Leah Wang at Prison Policy Initiative.