By Caroline Hinnenkamp
Racial disparities in the U.S. criminal justice system are well documented –– people of color are disproportionately arrested, convicted, and incarcerated.
Diversion efforts –– so named for their approach, which is to divert individuals away from the court process and instead offer opportunities for rehabilitation –– risk perpetuating these same racially disparate trends. Particularly if diversion programs have eligibility constraints based on prior records, people of color are more likely to be denied entry, because they are arrested and convicted at a higher rate than their white counterparts.
Historically, prosecutors tended to justify these constraints as mechanisms used to gauge an applicant’s capacity for rehabilitation, with recidivism (the tendency of a convicted criminal to reoffend) reduction as the central goal of diversion. Diversion was an alternative offered to the lucky few deemed “eligible” or “deserving,” with the implication being that reoffenders have a criminal disposition that is not amenable to rehabilitation.
But programs that use these screening methods tend to overlook the underlying facts and circumstances that might have brought about the applicant’s priors, such as implicit bias in law enforcement or the over-policing of specific communities. Without additional safeguards, the seemingly neutral constraint of “priors” fails to account for relevant pre-existing conditions, and risks barring entry to applicants who might otherwise benefit from diversion.
A significant reason for the existence of prior record constraints on diversion eligibility is funding and its sources.
Stakeholders have embraced recidivism as a reliable indicator of the success of criminal justice interventions, likely because it is fairly well documented that individuals who have offended in the past are likely to offend in the future.
Additionally, most diversion programs run on funding that is limited, and coordinators must find ways to limit the target pool of potentially eligible applicants to fit within these funding structures. Diversion coordinators are under pressure to run programs that produce reduced recidivism rates for participants as evidence of program success, in order to secure future funding.
Consequently, individuals with prior records are screened out early in the process, so as not to risk having a negative impact on the program’s overall recidivism rate, and thus threaten funding sources.
For example, Philadelphia’s Domestic Violence (DV) Diversion Program requires that individuals be denied entry if they have: two or more open misdemeanor cases; two or more active misdemeanor probation cases; been sentenced to jail for a violent felony within the past ten years.
In Philly, the DV program is not the outlier. Most of the city’s diversion programs have similarly designed eligibility constraints based on prior records.
Unfortunately, diversion programs designed around recidivism fail to account for the structural disadvantages, implicit bias, and policies that drive racial disparities within the criminal justice system.
Additionally, recidivism fails to account for individual progress in strengthening family and community ties, furthering education, and improving employment prospects, all incredibly important factors in bringing about behavioral growth in offenders.
Diversion programs that rely on eligibility constraints based on prior records risk missing entire groups of individuals, or members of entire communities, who might genuinely benefit from diversion efforts. As they currently exist, these constraints perpetuate residual consequences to people of color who may have been disadvantaged by implicit bias within law enforcement, and further racially disparate trends in the criminal justice system.
In order to limit these racial disparities in diversion programs, prosecutors, courts, and stakeholders should move away from using recidivism as the primary measure of success.
In steering the focus away from recidivism, diversion programs would gain the opportunity to move towards designs based on restorative justice, with a focus on desistance. Desistance allows for the view that transitioning from an offender to a nonoffender is a social transformation, stemming from developmental, psychological, and sociological processes.
Rather than demanding that an individual never reoffend, or punishing them for prior offenses, a desistance-based approach to diversion would recognize that the individual potential for success is not frozen in one specific moment in time. Instead, it would accept that the process toward becoming a law-abiding person involves making mistakes and getting several bites at the apple. In other words, not allowing prior records to limit access to rehabilitation efforts.
In pursuit of using desistance as the measurement for success, perhaps diversion programs could implement a sliding scale method for eligibility screening, where individuals with prior records are not automatically barred from participation, but instead given consideration on the totality of the circumstances. For example, neighborhood, age, and income might be factors on the sliding scale, considered alongside, or to the exclusion of, an applicant’s prior record. Though this model would invite its own risk by exposing applicants to the subjectivities of prosecutorial discretion, it might open the door to diversion for applicants who have other characteristics indicating they might benefit from rehabilitation over incarceration.
Additionally, it is worth noting that some diversion programs, like Philly’s The Choice is Yours Program (modeled on San Francisco’s Back on Track program launched in 2005 by then-DA, now Vice President-elect, Kamala Harris), already engage with community-based organizations that promote education, community bonding, and training for employment opportunities. Access to factors like these have repeatedly been found to affect desistance, and suggest that some diversion programs are, in fact, desistance-focused in execution, despite being recidivism-focused in the application/screening process.
From a funding perspective, the transformation from recidivism-based progress measurement to desistance-based progress measurement would be difficult, though not impossible. It would take time, research, and evidence-based persuasion of stakeholders looking for clear-cut answers that their programs are successful.
However, like desistance theory itself recognizes, change is a process. By embracing changes in eligibility standards away from prior record constraints, diversion programs would have the opportunity to begin counterbalancing the racially disparate trends that plague our criminal justice system.
Caroline Hinnenkamp is a third-year law student at Temple University’s Beasley School of Law. She is an intern with the Philadelphia District Attorney’s Transparency Analytics (DATA) Lab, where she conducts research primarily within the Diversion Unit.
