Street Diversion and Decarceration
Fan, Mary, American Criminal Law Review
States seeking more cost-effective approaches than imprisoning drug offenders have explored innovations such as drug courts and deferred prosecution. These treatment-based programs generally involve giving diversion discretion to prosecutors and judges, actors further down the criminal processing chain than police. The important vantage of police at the gateway of entry into the criminal system has been underutilized. The article explores developing the capacity of police to take a public health approach to drug offending by engaging in street diversion to treatment rather than criminal processing. This approach entails giving police therapeutic discretion--the power to sort who gets treatment rather than enters the criminal justice system. The article draws insights from medicine and the experience of treatment courts about how to guide therapeutic discretion, mitigate the risk of racial disparities in selection of beneficiaries, and offer checks and balances on power.
TABLE OF CONTENTS INTRODUCTION I. WHY REHABILITATIVE POLICING AND WHY Now? A. Seeking Smarter Solutions to the Drug War B. Reimagining Traditional Criminal Justice Roles 1. Headway Involving Prosecutors and Judges 2. Why Police Matter Too: Leveraging the Street-Level Gatekeeper's Role II. A PRACTICABLE MODEL OF EVERYDAY REHABILITATIVE POLICING A. Insights from Mental Health Diversion for A Police-Sorting Model B. The Virtues and Dilemmas of Police Discretion in Therapeutic Sorting 1. Virtues: Cost Savings, Buy-In Cultivation, Role Internalization 2. Concerns: Therapeutic Discretion, Checks, Information Deficits III. ADDRESSING CONCERNS OVER AUTHORIZING POLICE TO ENGAGE IN STREET DIVERSION A. The Different Stakes in Street Diversion from Post-Arrest Diversion B. Ameliorating Skews in Therapeutic Judgment: Lessons from Medicine 1. Detecting and Defusing Implicit Bias 2. A Check on Low-Visibility Discretion: Data-Driven Monitoring 3. Improving Information Deficits: Cultivating Communicative Input C. Including More Serious Offenders in Rehab: Lessons from Drug Courts CONCLUSION
Today is a green light day in an experimental new role for police in dealing with drug offenders in urban Seattle. (1) In a program called "the first of its kind in the United States," police officers in the downtown Belltown area take drug and prostitution offenders--among the main staples of the criminal justice mill--to rehabilitative and social support services rather than criminal processing on select days. (2) The program also treats prostitution as a divertible offense because of the community's understanding that while male addicts are often arrested for drug offenses, female addicts are often picked up for prostitution. (3) The police-community partnership project is called LEAD--short for Law Enforcement Assisted Diversion, and an acronym that also captures the hope that the pioneering approach might flourish and spread to other jurisdictions. (4)
The need for wiser approaches to dealing with drug offending is acute. Drug offenses constitute the most prevalent ground for arrest and a major basis of imprisonment in the United States. (5) Over the last two decades, incarceration has quadrupled and spending on prisons has surged by more than 300 percent, but recidivism has stuck to between 43 percent and 45.4 percent. (6) In a microcosm of the national problem, police working Belltown's open-air drug markets reported just 54 repeat offenders accounted for 2,700 arrests. (7) The addicts, pushers, and prostitutes churn through the criminal justice system, from the streets, to arrest, to jail, in seemingly futile repetition. (8) Hoping to break out of this costly cycle, the LEAD program gives officers the discretion not to arrest and book as usual. …