The Ethical and Legal Challenges of Diversion

There are many different types of diversion available within the intercept model commonly used by communities when designing diversion programs.  Importantly, any diversion that does not result in a charge is preferred, although diversion programs with deferred prosecutions or judgements can also aid individuals struggling with behavioral health issues in the criminal justice system.  Charges, let alone convictions, follow people, impacting their ability to rent homes, apply for jobs, and sometimes see their children. 

Currently, Colorado is in the process of building on its legislative funding to the District Attorney’s Office, for diversion programs, to pilot full, statewide, pre-charging diversion.  Mental Health/Point of Contact Through Jail Release Task Force, Final Recommendation Presented to the Colorado Commission on Criminal and Juvenile Justice, January 12, 2018.  “To promote public safety, good outcomes for all citizens, and efficiency in our government and judicial system, promising models must be pursued to divert individuals into treatment at the earliest possible discretionary point.”  Id.  The model recommended in Colorado is a post-arrest, pre-file diversion program specifically for individuals experiencing mental health disorders, who meet specific criteria, and are determined to benefit from diversion to treatment as an alternative to criminal prosecution.   It is also recommended that all diversion participation be limited to non-Victim’s Bill of Rights involved offenses, offenses without named victims. 

Another attempt to divert individuals out of the system, prior to charges being filed, is the use of Crisis Intervention Teams (CIT), pioneered by the Memphis Police Department in the late 1980s.  CIT Policing involves intensively training select officers in mental illness and service connectivity, as well as de-escalation tactics and mental health first aid, and utilizing these officers when a call is dispatched, which involves mental health concerns.  “While a police department’s embrace of CIT serves a number of vital purposes – for example, having officers with knowledge of mental illness respond to sensitive incidents sharply reduces the risks of injury and death– a primary goal is diversion. When a CIT officer makes an arrest for criminal behavior, he or she does not reflexively process the person for booking. Instead, the officer is trained to consider – and sufficiently network with providers to know – whether treatment alternatives are available to ensure the safety of the person and the community.”  Mental Health Diversion Practices: A Survey of the States.  Setting, Frese, & Lamb, Treatment Advocacy Center, 2013.  “Research has established the effectiveness of CIT in reducing criminalization of mental illness.  In 1995, Dr. H. Richard Lamb and colleagues examined how many of 101 consecutive referrals to the Los Angeles “SMART” unit (based on a model similar to CIT) resulted in jailing. Of the 101 referrals, they found 80 transported to a hospital setting, 69 of the 80 held for evaluation and only two jailed, i.e., a 2% booking rate. That compares to a 16% booking rate found in an earlier, comparable study of traditional policing in Chicago.”  Id. at 6. 

Courts are also utilized in both the pre-and post-diversion charging arena.  Most mental health related cases are not violent, but generally involve more non-violent offenses, such as drug crimes, property crimes, and crimes related to homelessness.  “These are the cases crying out for a strategy of diversion. It stands to reason that where offenses are caused by lack of treatment, the antidote to re-offense is treatment, not incarceration.  The added benefit is to relieve correctional facilities of some of their enormous burden to provide mental health care behind bars – a thankless task for which guards are ill equipped and unfairly enlisted.  Id. at 5.  The use of the court system often, although not always, means that charges have been filed against an individual.  Court’s can also address issues facing those previously convicted, and now on probation and possibly in revocation status, who have behavioral health issues that prevent them from successfully completing their sentence.  These courts are post-conviction courts and utilized to divert people out of jails and correctional facilities.

Although these courts, at each intercept point, are a way of diverting those with behavioral health concerns away from the criminal system, they do still involve criminal conduct, criminal prosecution, and criminal proceedings.  Therefore, although a large portion of diversion is geared towards the clinical, attorneys still must do their jobs in the criminal courtroom.  This can sometimes be easily accomplished, at other times is rife with ethical dilemmas and requires a new type of lawyering and judging, often uncomfortable for some in the legal profession.  “There are practical limits to what can be accomplished through diversion.  As much as we may feel sympathy for the person whose untreated mental illness results in a serious violent crime, it is usually not realistic to expect the criminal justice system to forgo prosecution in such cases.  Prosecutors are constrained by the dual needs of delivering a sense of justice to victims and protecting the public from danger.”  Id.  Furthermore, Judges are asked to be directly involved with coaching and consulting with the defendant in a case, along with other behavioral health professionals- this is highly unusual in a criminal courtroom.  Generally, the last person that a defense attorney wants speaking in open court is their client- and defense attorneys often move to prevent clients from sharing things that may be therapeutically positive for them but could negatively impact their criminal case. 

Each player in the courtroom has obligations: the prosecutor has an obligation to the people of their state; the judge has an obligation to uphold the law; the defense attorney has an obligation to defend her client and protect them at every turn.  These actions do not often line up with the treatment that mental health professionals, social workers, and case managers want to implement in diversion programs; thus, it is essential that both the behavioral health and the legal profession begin to liaise and understand where each person stands, and what their obligations and opportunities are to aid in the diversion process.  This discussion must include not only professional duties and ethics, and the nature of a criminal prosecution, but also the interests of victims and the possibilities for restorative justice through the diversion process.

Jennifer Longtin