Incarceration Impact of 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. For just under 40 percent of these programs, prosecutors reported that the diversion impacted levels of incarceration. For six percent of programs, prosecutors indicated either that the program had not impacted incarceration. Another 33 percent said they did not know whether it had, and 7 percent did not respond. The most often recorded response was that the diversion program changed the rate of incarceration through reductions in imprisonment. The second most frequently reported response was that it changed the rate of incarceration through reductions in recidivism.

Of the 497 programs, 75 (15 percent) indicated that the program had changed the rate of incarceration through all three mechanisms listed in the survey: reductions in pretrial detention, imprisonment, and recidivism.

 

 

 

 

 

 

 

 

One of the purposes of prosecutor-led diversion programs is to reduce criminal legal system involvement by redirecting cases from prosecution to a reduction in charges or dismissal of cases. These reductions in legal system involvement can lead to the elimination of custody or incarceration outcomes for someone.

Prosecutor-led diversion programs have the capacity to impact incarceration rates through reductions in pretrial detention, reductions in imprisonment, or reductions through lower recidivism rates. The first two reductions are more immediate; the person is taken from jail pretrial and enrolled in a diversion program in the community or the person completes the diversion program and no longer has a charge resulting in incarceration time. The impact on diversion programs on incarceration through reductions in recidivism is a more long-term effect. If someone isn’t diverted from the criminal legal system, they carry a conviction on their record that can impact their future success at employment, housing, and other critical needs.

However, to see large reductions in incarceration, a diversion program needs to target a population that has the largest chances of an incarceration term if convicted. As we write in the thematic report on populations of focus, half of the diversion programs on our map reserve their diversion program for people arrested for the first time. However, these populations generally are not at risk of incarceration time, so the impact on incarceration rates could be lower. In order to truly impact incarceration rates, diversion programs should consider expanding eligibility beyond people arrested for first-time offenses or low-level misdemeanor offenses and should consider targeting felonies and any offenses that carry incarceration time.

There are several reports showing the measured impact of prosecutor-led diversion programs on incarceration times. For example, the National Institute of Justice released a report evaluating multiple prosecutor-led diversion programs and they found that five of the programs reduced their use of jail sentences. In another study on prosecutor-led diversion programs in three Washington counties, they found that incarceration at the local jail and state prison was 16 days shorter on average than the comparison group.

Prosecutors considering using diversion programs to limit their local incarceration should carefully consider whether their programs are designed in a way that will help achieve this goal. Some lessons learned from the survey as well as external research and people we interviewed as part of this project include:

• Most diversion programs do not touch more serious offenses that can carry jail terms.
• Consider expanding eligibility to offenses that carry jail time or straddle between community correction time or incarceration and avoid focusing on petty offenses like traffic violations or people arrested for the first time.
• It is important to track the impact your diversion program has on incarceration rates and recidivism rates. This way you can use data to evaluate your program periodically and revise the program’s design as necessary.
• Additionally, prosecutor offices shouldn’t solely rely on diversion to reduce incarceration rates, as there are other decisionmaking points that can impact incarceration rates, including plea bargaining.