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Critics Say Prosecutors' Diversion Policies Perpetuate Race Disparities

As the costs of mass incarceration continue to grow, 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 to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process, says the Prison Policy Initiative (PPI) in a new summary of evidence on racial disparities and diversion.

Diversion programs are often structured in ways that perpetuate racial disparities, PPI says. Studies show how people of color who are facing justice system involvement are systematically denied or excluded from diversion opportunities.

This inequity has a ripple effect, contributing to the troubling racial disparities in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. PPI contends that "policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements and discretionary decision-making to offer these opportunities in a racially equitable way.

Existing research is largely centered around prosecutor-led diversion programs. More often than not, diversion levies exorbitant fees on its participants. Indeed, many prosecutor-led diversion programs are funded by users (i.e., participants) themselves, creating a two-tiered system where those who can pay will receive the benefits of diversion.

Desperate for an option that avoids prison time, others may enroll in diversion only to be kicked out when they can’t afford fees for participation, treatment, drug testing, or something else, PPI says.

Prosecutors have pitched user-funded diversion as a virtuous and fiscally responsible approach to reducing mass incarceration. The relationship between income, race, and ethnicity means that fee-based diversion remains out of reach for people of color, the same way that bail and other fines and fees disproportionately burden Black and Hispanic people.

A report from the Alabama Appleseed Center for Law and Justice highlights the bleak financial landscape of diversion. Its survey of nearly 1,000 people involved in diversion programs in Alabama revealed that low-income people resort to extreme measures to pay their fees: The majority of respondents (82%) gave up one or more basic necessities like rent, medical bills, or car payments in order to pay various fees.

More than half of a subset of survey-takers (55%) made less than $15,000 per year, and 70% had been found indigent. Despite this high level of need, only 10% were ever offered a reduced fee or a fee waiver for a diversion program.

Even though that survey’s respondents were about equally white (45%) and Black (47%) and the survey responses were not broken out by race, the report’s authors assert that the Black-white wealth gap in Alabama “could be a major reason” that Black Alabamians are disproportionately excluded from diversion opportunities.

Another common feature of post-filing prosecutor-led diversion programs is that they often require a guilty plea to participate. In pleading guilty, an individual signs away their right to any further due process, and faces immediate sentencing if they’re terminated from a diversion program.

While these “post-plea” diversions (also called deferred adjudications) may be convenient for a prosecutor, who wouldn’t have to take further action on that person’s case, PPI says it is unjust to force someone into this high-stakes situation just to receive social services.

Research also finds that some diversion programs require that participants have a specific family structure at home. According to the Sentencing Project, Black youth are more likely to live in single-parent, multi-generational, or blended households that do not meet these criteria, leading to a baseless finding of ineligibility.

A 2018 study found that a youth’s family structure had no effect on whether or not they completed diversion; neither did race. Youth diversion programs also often require an admission of guilt; research illustrates that Black and Native youth, likely due to greater mistrust of the criminal legal system, are less likely than white youth to admit guilt. This keeps youth of color from accessing diversion, which hurts their future prospects through the mark of a juvenile adjudication.


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