Over the past 20 years, justice system administrators in many jurisdictions have come to rely on diversion programs to reduce the fiscal burden of incarceration for low-level drug offenses, traffic violations, sex crimes, and offenses committed by the mentally impaired.
In theory, they sound like a win-win for both the state and the individual accused of a crime. The individual avoids a jail term and gets specialized help, and the state reduces the fiscal burden of incarceration.
Also in theory, individuals who successfully complete the program walk away with clean records and the state walks away with a balanced budget.
But while diversion addresses some problems, it has brought new challenges and, in some cases, deepened the problems it sought to fix, a conference at John Jay College of Criminal Justice was told.
Advocates at the panel, part of a symposium on “Cash Register Justice,” organized by the Center on Media, Crime and Justice at John Jay (publisher of The Crime Report), said the key problem is that diversion and treatment programs are financially dependent on revenue from fines and fees imposed on program participants and other justice-involved people.
“There’s a flaw in this system, […] which is that prosecutors and judges typically charge defendants for accessing these opportunities,” said William Maurer, managing attorney for the Seattle-based Institute for Justice.
“The fact that a defendant has to pay to participate means that while [diversion and treatment programs] look good on paper, they can turn into a serious avenue for abuse,”
“And again, the harm falls most heavily on those who are most financially vulnerable among us.”
Local and state governments also outsource diversion—as well as probation—programs to private contractors.
“People end up with really long payment plans, and often these probation and diversion programs are run by private providers,” said Becca Curry, staff attorney at the American Civil Liberties Union (ACLU) of Colorado.
“[This] builds one degree of separation between the judge and the private providers, which would lead the providers to conduct an inquiry into whether or not the defendant is able to pay.
“That really should be the judge’s job. […] And sometimes we see revocation of probation, just because the company isn’t getting their two cents.”
In fact, the panelists believe, for-profit diversion and treatment programs are a net widener of mass incarceration, and a pipeline to debtors’ prison that most adversely affects poor communities of color.
Such is the case in Dekalb County, Georgia, according to Nusrat Choudhury, deputy director of the ACLU Racial Justice Program. There, the county probationer contracts with Judicial Corrections Services (JCS) to supervise those facing charges for minor offenses such as driving without a license.
Choudhury was one of the lead attorneys in the ACLU’s suit against the county probationer for contracting with JCS to systematically extract money from mostly poor residents of color for misdemeanor violations such as driving without a license, other traffic violations, and shoplifting.
‘Sea of Black and Brown Faces’
Walking into the county courthouse, Choudhury noted a “sea of black and brown faces.”
She argued that the abuses in DeKalb County are representative of trends across the state, as Georgia has authorized municipal and county courts to outsource probation services to private contractors.
Choudhury also emphasized that many counties and states are dependent upon fees to generate the revenue to provide defense attorneys to the poor. Court officers will often tell defendants that they will have to pay large fees to receive a public defender.
Many individuals, based on the word of their court officer, opt out of paying for a court-appointed attorney. In many places throughout the country, the result is massive underrepresentation of the poor in court.
But Choudhury went even further.
“What we see is not only that so many of these courts are fundamentally lawyer-less, whether it’s a municipal court in Colorado, or a justice court in Mississippi, or a magistrate court in South Carolina, […] sometimes the judges aren’t even lawyers.”
Dami Animashaun, a Civil Rights Corps attorney who has investigated the marijuana diversion program in Arizona’s Maricopa County, explained that diversion programs also often create a slush fund for public prosecutors’ offices.
In Arizona, the possession of even trace amounts of marijuana is a felony. In Maricopa County, he argued, this created an incentive for the public prosecutor to work with police to actively criminalize marijuana and funnel more people into diversion programs.
The county’s strict marijuana enforcement fell most heavily on low-income communities of color. Paying as much as thousands of dollars each in fines and fees for each step of the program, including admittance fees and drug test fees, program participants’ hard-earned dollars gave multimillion-dollar subsidies to the prosecutor’s annual budget.
In fact, the prosecutor’s office brought in almost $2 million annually solely from its marijuana diversion program, and a total of $15 million over ten years.
Animashaun found that if residents did not respond to diversion program notices, the county did not press charges—illustrating, he said, that the prosecutor’s office was in fact not interested in prosecuting such a high number of low-level traffic and drug violations.
Rather, he continued, they were interested in the revenue that these diversion programs can generate.
Maricopa County is an example of the danger of tying diversion programs to prosecutorial discretion, according to Animashaun.
Speaking to a room full of journalists covering criminal justice, he also emphasized the importance of investigative journalism in advancing reforms.
The Civil Rights Corps’ suit was triggered following a journalistic investigation into the Maricopa County Attorney’s Office, which found that County Attorney Bill Montgomery’s staunch opposition to Prop. 205 was rooted in the millions in kickbacks that his office had received from the county’s marijuana diversion program.
Another critical issue of the pay-to-participate diversion approach, is that many justice-involved people fail to keep up with the fines and fees accumulating when they neglect to pay, or can’t pay, the penalty for a first minor offense.
This failure to pay can have disastrous consequences, from probation revocation to diversion program failure. Prior to program admission, participants are often coerced into signing guilty pleas, under the premise that if they finish the program successfully, they will have their record expunged.
But after they fail to pay, they find, to their horror, that they signed away their right to free trial.
“One big worry is that you are admitted to the program, but you can’t get off the program until you pay a certain amount of money,” Animashaun said.
“The reason that’s so bad is because a lot of people entering the program take the burden of a conditional guilty plea.”
The Colorado ACLU found that municipal courts regularly used failure-to-pay as a pipeline to incarceration for those on probation and parole. After state courts declared this practice unconstitutional for not adequately considering defendants’ ability to pay, municipal courts changed their tactics.
Those who fail to pay are now required to appear before a judge every month to explain their continued financial difficulties. If they fail to appear to any of these constant hearings, they can likewise have their probation or parole revoked.
Thus, in Colorado, failure-to-appear has replaced failure-to-pay and is a leading driver in the growth of debtors’ prisons, according to the ACLU’s Becca Curry.
The panelists identified multiple “systemic, scalable solutions” to these pressing justice system issues.
Curry stressed the constitutional importance of adjusting fines and fees for ability to pay.
Nusrat Choudhury argued that many low-level courts such as drug courts can in fact be folded into county or municipal courts. Established since the War on Drugs to deal with a massive influx of drug charges, they are contributing chaos over value to the criminal justice system and should be abolished.
Additionally, Choudhury argued that municipal courts should require judges to be lawyers, or at least have a legal counsel to assist in efficiently administering court proceedings and more accurately interpreting and dispatching the law.
She also believes that it is essential to bring all justice system stakeholders to the table when debating directions for local reform. This way, collective decisions are more likely to be seen to completion.
The symposium, which ended Friday, was sponsored by Arnold Ventures, formerly the Laura and John Arnold Foundation.
Correction: An earlier version of this article stated that the ACLU filed the suit against the Maricopa County Attorney’s Office to challenge its marijuana diversion program. In fact, the Civil Rights Corps filed the suit.
Roman Gressier is a TCR news intern. Readers’ comments are welcome.