The Drug Diversion and Treatment Program: Northwestern District Attorney’s Office (Hampshire and Franklin Counties, Massachusetts)

The Northwestern District Attorney’s Office, which prosecutes crimes in Hampshire and Franklin Counties, two rural counties in Massachusetts, runs the Drug Diversion and Treatment Program (DDTP) to divert people arrested for crimes driven by drug use and instead give them the opportunity to receive substance use treatment from a community partner. The DDTP takes a health-focused approach to its planning and execution, and it benefits from wide community support from a variety of stakeholders.

This case study, which is part of the Mapping Prosecutor-Led Diversion Project, centers on the DDTP’s health-focused approach to diversion and the strong community and stakeholder support available to the program’s leaders and staff, highlighting takeaways for prosecutors looking to launch similar programs. The information included is based on the office’s response to the Mapping Prosecutor-Led Diversion Project survey and on interviews with program leaders, staff, and partners. This case study is intended as an overview of the DDTP’s diversion strategy and is not an assessment or evaluation.

Background on the Drug Diversion and Treatment Program

Within a year or two of District Attorney David Sullivan’s election in 2010, opioid deaths were accelerating nationwide and particularly in the Northwestern District’s two counties (Franklin and Hampshire), which have had some of the highest opioid death rates in Massachusetts. He recognized something had to be done to address opioid addiction, which could not be solved solely by the criminal legal system. Leaders in law enforcement, the court system, education, business, and community health in the area formed the Opioid Task Force to reduce opioid addiction and prevent overdoses. The task force centered on the district’s two counties. An important part of its work was the inclusion of a health provider who educated other task force members on addiction and treatment strategies, which strongly influenced the task force’s eventual recommendations and actions. For example, the members learned about addiction and relapses, the importance of medication-assisted therapy, recovery coaches, why strong outpatient options are critical, and motivational interviewing. The task force’s findings and work became the impetus for the Drug Diversion and Treatment Program.

When it started in 2016, the program was focused on first-time drug possession and low-level offenses committed by people 18 to 30 years old, and it was modeled after a long-standing diversion program run by former district attorney of Essex County, Massachusetts, Jonathan Blodgett. Early challenges included having only one staff person to cover four geographically distant courts and having a limited pool of clinicians and social workers in the area. With more funds from the state legislature, District Attorney Sullivan was able to expand the program’s staff, its providers, and the eligibility criteria for participants. Now, the program is open to people 18 and older. In 2018, eligibility was expanded to include not just people who were entering the system on their first offense or had been charged with possession but also people who already had a criminal record, people who had been convicted of more serious drug-related crimes, and even people who had been convicted of crimes involving drug use and a victim when the victim (typically a family member) wanted them to be diverted to a substance use disorder treatment program. The DDTP is currently overseen by a staff attorney (who also has other responsibilities in the office), a full-time non-attorney program director, and a full-time non-attorney program coordinator in a second county.

The Northwestern District Attorney’s Office handles 4,500 to 6,000 cases a year. In 2016, the year the DDTP began, about 35 cases were diverted. By 2020, before COVID, about 75 people at a given time were receiving treatment through the program. Although those numbers dropped to under 30 during the pandemic, the program now has more than 90 people participating in a given year. About 520 people have participated in the program, more than half of whom have successfully completed it and had their cases dismissed. Of those, 83 percent have not reoffended.

The goal of the diversion program is to divert people as early as possible, often before arraignment. In practice, the police make an arrest and provide the prosecutor’s office with a police report, and the clerk’s office issues a complaint. The prosecutor covering arraignments that day decides whether to divert at arraignment. All prosecutors in the office are trained to identify eligible cases. As the program has expanded to include more serious crimes and crimes involving victims, a case may be found to be a good fit for diversion after arraignment. If the case is diverted at arraignment, the potential diversion participant is directed to one of the non-attorney staff, who completes an initial intake and describes the program,, which requires the participant to comply with a community provider’s treatment plan for six months. At the conclusion of the six months, the prosecutor will dismiss the case before arraignment. In cases where the diversion offer is made after arraignment, the prosecutor’s office dismisses the case after arraignment.

If the person agrees to enter treatment, they sign a contract with the district attorney’s office and are immediately referred to the treatment provider. The district attorney’s office is not involved with the treatment plan or treatment provision. The treatment provider keeps information the client shares confidential, and that information is therefore not used to prosecute them, even if the case is returned to the prosecution track. The prosecutor’s office receives monthly updates on compliance. If noncompliance is reported, the prosecutor can bring the case back to court for arraignment and prosecution. Because of long-standing relationship building with the community treatment provider, DDTP participants get priority with a clinician for intake. This intake process has sometimes taken only two or three days, but as of late 2022 it was taking as long as two weeks because of clinician shortages. The community providers treat people in the DDTP as well as those who have not been referred through the criminal justice system. Regardless of the referral source, 80 to 90 percent of clients are covered through MassHealth.

The DDTP’s Health-Focused Approach

Although the DDTP is run by the prosecutor’s office, it is grounded in a health-focused approach.

Taking this health-focused approach meant that the district attorney’s office designed the program such that after people are referred to the program, the district attorney’s office is completely hands-off on all treatment decisions. In addition, it ensured the district attorney’s office would have a realistic view of compliance and relapse, allowing people who are working their treatment programs but who have relapses to continue the treatment if they show they are getting back on track. For example, a participant might be given up to three chances to show up at counseling or pass a drug test before their diversion is terminated. The office is also willing to consider incorporating new cases into a person’s diversion if they are generally in compliance but may need increased treatment. Of note, this flexibility is at the office’s discretion and can differ for different cases. Taking this health-focused approach also contributed to the decision to expand the eligible age range, as the office determined that many of the people experiencing opioid overdoses were between 35 and 45. Further, although the DDTP generally lasts six months, the office is flexible, allowing people who complete the treatment earlier to have their cases dismissed sooner and allowing people who need to stay on longer do so for as long as nine months to a year.

Unlike people in many other states, everyone referred to the DDTP has insurance to pay for the treatment approach because of Massachusetts’ universal health care coverage, which includes behavioral health coverage. This means the district attorney’s office does not have to pay for or find financial resources to pay for the community-based treatment that diversion participants receive. In addition, the community treatment provider can develop a financial model that allows for continuity of service and treatment.

The Importance of Support and Buy-In from a Wide Range of Key Stakeholders

As the Opioid Task Force was being formed, many community stakeholders in Hampshire and Franklin Counties had either seen or were open to the idea that substance use disorder is a public health crisis, not a criminal justice one. For example, two community newspapers published a series of articles that brought to life the human experience of addiction and included expertise provided by members of the task force. Community meetings about the issue grew rapidly in size and participation, building a solid foundation of wide community support. Law enforcement officers were provided with naloxone (Narcan) to reverse overdoses when they arrived on scene.

In addition, District Attorney Sullivan ensures that line prosecutors are aware of the DDTP and understand its importance. All courts have protocols to enable prosecutors to immediately refer cases to the DDTP staff for intake. If the number of people referred to diversion appears to be declining, the district court chief or the prosecutor who oversees the DDTP works with individual assistant district attorneys to ensure they are complying with the referral process. All prosecutors are aware that the district attorney is committed to the program and to the philosophy of providing treatment, not punishment, for people suffering from substance use disorder. The district attorney’s office also devotes time to educate staff on what substance use disorder is, the importance of compassion, and the importance of using the diversion program. The office also works with judges to ensure they understand the program’s philosophy.

As the Northwestern District Attorney’s Office developed the DDTP, the state of Massachusetts debated and eventually decriminalized the possession and use of marijuana, which also influenced the office’s decision to expand eligibility beyond drug possession and demonstrates the understanding of and buy-in for a non–criminal justice response to some types of substance use among people in Massachusetts.

The lessons below were informed by observations from Northwestern District Attorney’s Office leaders, staff, and partners.

• Incorporate public health expertise. Because substance use disorder is not a criminal justice issue, it is essential that trained public health and substance use disorder clinicians help design and run interventions. This not only allows more stakeholders to support the diversion of people with substance use disorders but ensures interventions will be aligned with evidence and best practices for addressing the critical parts of these disorders.
• Invest in capacity tied closely to program goals. In the Northwestern District Attorney’s Office, prosecutors often do not have time in court to meet with potential participants. The office therefore used additional funds to bring in non-prosecutorial staff to interview people to determine their eligibility and to pay for part of the time a prosecutor spends overseeing the program and coordinating with prosecutors in the office.
• Continually learn and evolve. Collecting data and talking to participants, prosecutors, partners, and other stakeholders in the community are vital parts of the DDTP for the Northwestern District Attorney’s Office. For instance, reviewing referrals to the program enables leadership to understand how the program is being used and where more education or changes to the program are needed. Because of who it serves, the program strikes a balance between being flexible and requiring compliance. It tracks successful and unsuccessful terminations and monitors whether it is achieving its goals. Further, overdoses and substance use disorder continue to be enormous concerns for community members in Franklin and Hampshire Counties, and having the district attorney and other stakeholders involved offers additional opportunities for the community to address the full breadth of the crisis.
• Leverage local resources and buy-in to develop the program. In Massachusetts, marijuana decriminalization and universal health coverage provide a stepping-off point for prosecutors to develop their approach to being a partner in addressing substance use disorder in their communities. The widespread community support in the state for behavioral health–focused alternatives to criminal justice intervention allow for innovative and impactful programs to be implemented. These factors may not be present in other states and jurisdictions. But all prosecutors’ offices can consider what existing systems and structures can support diversion in their jurisdictions and integrate them in the design and implementation of diversion initiatives.