Populations of Focus for Prosecutor-Led Diversion

Starting in 2021, the National District Attorneys Association (NDAA) and the Urban Institute surveyed prosecutors’ offices across the country about any prosecutor-led diversion programs they currently run. The results of the survey are available at diversion.ndaa.org and displayed as a national map of prosecutor-led diversion programs.

As of October 31, 2023, responding offices had submitted information on 497 programs. Prosecutors reported that their diversion programs intend to serve a variety of populations. Responding prosecutors reported that more than half (53 percent) of their programs intend to serve someone arrested for a particular offense (although most programs—54 percent—included other criteria as well). The second most commonly reported population of focus was people arrested for the first time (50 percent of programs). A focus on those with substance use disorders was reported in 37 percent of programs, and 25 percent reported a focus on those with mental health disorders.

Of the 497 programs, 61 (12 percent) indicated that their program focused both (and exclusively) on people arrested for the first time and on people arrested for a particular offense. Meanwhile, 113 programs (23 percent) indicated that they focused not only on people arrested for the first time and for a particular offense, but also other criteria (e.g., under 18, substance use or mental health disorders).

Prosecutors often focus on specific populations when designing their diversion programs. Some programs are designed to help people address specific underlying problems leading to their criminal legal system involvement, like an underlying mental health challenge or substance use disorder. Recognizing that criminal legal system involvement will not address those challenges, and may even exacerbate them, programs often direct people instead toward resources and supports that will help meet those needs. Prosecutors may design programs based on a specific problem pervading the community, like high rates of opioid deaths or arrests. Others may aim to reduce further exposure to the criminal legal system among young people or people who have not previously been arrested. Some programs begin by targeting a particular population and then expand eligibility once the program has shown results.

Among the programs that submitted information to the diversion.ndaa.org website, slightly over half were designed to serve people arrested for a particular offense. Other studies have also found that about half of prosecutor-led diversion programs restrict the types of charges considered for diversion, and very few consider serious and violent offenses, though some accept lower-level felonies. Although many diversion programs have exclusionary criteria, research suggests that narrow eligibility requirements can significantly limit who is able to participate in diversion, and may restrict these opportunities to people with the least need or the least likelihood of further exposure to the criminal legal system. Limiting diversion to only certain types of offenses runs the risk of net-widening, or drawing people further into the criminal legal system when dismissing the case would have been more appropriate. Research also shows that programs serving people deemed “higher-risk”—with a greater risk of reoffending and greater need for services—reduce recidivism more than those focused on people deemed “low-risk.” Some diversion programs also exclude people with certain prior convictions. This can contribute to racial and ethnic disparities, as people of color have historically experienced more contact with the criminal legal system due to systemic racism, which may result in a more extensive criminal history. This is also built into risk assessment tools that programs use to make eligibility determinations.

Although diversion programs are typically guided by policies regarding eligibility, decisions about whether a particular case qualifies for inclusion in the program may be made by one or two key decisionmakers with broad discretion. These decisions can be instrumental in determining who is ultimately offered diversion and how effective a program is in serving its population of focus.

Prosecutors designing diversion programs should consider which eligibility criteria will best achieve their goals and be mindful of how these requirements may affect racial and ethnic disparities. Some lessons learned from the survey, external research, and people we interviewed as part of this project include:

• Avoid diverting cases that would be more appropriate for dismissal. Focusing on low-level offenses can lead to net-widening and over-treatment, when research suggests a more hands-off approach would be better. Intensive programs for low-level offenses may also be unsuccessful because their requirements are too onerous.
• Consider setting broad and more inclusive eligibility criteria. Prosecutors have found success in doing so, as well as by expanding eligibility for their diversion programs to include more serious charges. Some began by diverting less serious felonies to demonstrate to the community that felony diversion is possible, then steadily expanded eligibility over time.
• Consider screening cases individually for eligibility rather than setting broad exclusion criteria, but be mindful of how granting line prosecutors and program staff broad discretion over eligibility decisions on a case-by-case basis could conflict with office policies around eligibility.
• When determining diversion eligibility, be intentional about reducing racial and ethnic disparities among those who are offered diversion. Collecting and analyzing program data, including race and ethnicity data, is key for tracking this.
• Partner with clinical staff, who are valuable resources in determining appropriate eligibility requirements for diversion programs focused on behavioral health needs. Programs like these also require effective mechanisms for identifying individuals’ needs, and decisions about individuals’ treatment needs and plans should be made by clinical staff, rather than prosecutors or other program staff. Try to create ample opportunities for these assessments at multiple stages and as early as possible in case processing.
• Partnerships with community service providers are essential to addressing the needs of the populations prosecutors are looking to serve. Prosecutors can play a key role in bringing service providers and system partners together to build a diversionary system that addresses the underlying causes of criminalized behavior.
• Set diversion program goals and requirements that are realistic and account for the specific populations they serve. For instance, programs serving those with a substance use disorder may adopt a recovery model that expects relapse and separates the recovery process from legal repercussions.