Study: Diversion Programs Work – When They Don’t Sabotage Participants

By Tom Gordon

In a state where overcrowded, violence-racked prisons have been a longstanding issue, there are alternatives to prison — diversion is the common umbrella term — that are supposed to keep some offenders out of the system and give them help they need to stay out. These diversions take the form of entities such as drug courts, veterans courts and community corrections.

In many instances, these alternatives to prison are successful. But a new report states that in far too many cases, they hinder rather than help those they are supposed to serve.

“The perverse reality is that diversion programs actually drive many of the behaviors and circumstances they were devised to mitigate,” states “In Trouble: How the Promise of Diversion Clashes With the Reality of Poverty, Addiction and Structural Racism in Alabama’s Justice System.”

The report, prepared by the Alabama Appleseed Center for Law & Justice, was released Monday, and it is based partly on surveys and interviews in 2018 and 2019 with more than 1,000 Alabamians who had experience in various diversion programs. It calls upon state lawmakers to not only fully fund diversion programs but to pass other measures to make them more accessible to participants, streamline their rules and regulations, and tailor their requirements, including fines, to the financial needs and familial obligations of each participant.

“Diversion could be a meaningful tool to combat the human rights crisis in our prisons and the public health crisis in our communities,” the report states. “But if they are to serve the people who need them most, programs need to be accountable, accessible, and properly funded.”

The need for diversion reform was a subject that came up last year during meetings of the Governor’s Study Group on Criminal Justice Policy. Leah Nelson, Alabama Appleseed’s research director, spoke at a session in December about the just-released Appleseed Report and the burdens that diversion program participants face.

“What we’ve learned is that these programs are too expensive for poor people who lack wealth to participate in them without making outrageous sacrifices,” Nelson said in her statement to the study group. “They are not designed to accommodate the everyday realities of folks who have jobs, children, or other obligations.”

According to “In Trouble,” most of those surveyed for the report were poor, with 55% making less than $14,999 a year. “The median amount they reported paying for diversion was $1,600 – more than 10 percent of their total income” and “only one in 10 had ever been offered a reduced fee or fee waiver based on their inability to pay,” the report states. As a result, “to cover their diversion payments, more than eight in 10 gave up a necessity like food, rent, or prescription medication,” and nearly half resorted to payday or title loans.

The report also states that one in five of those in the survey “had been turned down for a diversion program because they could not afford it” and “about the same proportion had been kicked out of a diversion program because they could not keep up with payments.”

In addition, “more than one in five had to turn down an opportunity to participate in diversion because of work, childcare, or school obligations” and those same obligations forced one in five to quit a diversion program. Furthermore, “almost a quarter dropped out of a diversion program because they lacked transportation.”

These hardships can land people back in prison, with sometimes lethal consequences.

“In 2019 alone, there were 29 preventable deaths in prison from homicide, suicide, or drug overdose,” the Appleseed report states. “Some of those prisoners were people who were only in prison because they could not afford to remain in diversion.”

Alabama’s justice system has basically two types of diversion programs – pre-adjudication, or pre-trial, and post-adjudication, or post-trial. One example of a pre-adjudication program is the drug court. Adult drug courts now operate in 55 of Alabama’s 67 counties; seven of the courts serve more than one county.  As the Appleseed report notes, a drug court allows people to avoid a trial and complete a supervised program that includes drug treatment or screenings, education classes and regular court appearances. Under a 2013 state law, local district attorneys can set up such pre-trial programs.

One example of a post-adjudication program is community corrections, through which someone convicted of a crime completes their sentence in a non-prison setting. The program often includes requirements like those from a drug court.

In its “In Trouble” report, Alabama Appleseed cites the experiences of various individuals with diversion programs, among them “Ryan,” a man described by Nelson as “exemplifying the shortcomings of the system as it currently exists.”

Too Expensive to Continue

In her remarks to the governor’s criminal justice study group, Nelson said that Ryan, on probation for an earlier drug possession conviction in Chilton County, “re-offended” in Shelby County and was referred to its drug court, “widely acknowledged to be one of the toughest in the state.” Ryan did rehab, “got his life back together,” Nelson said, “but he didn’t understand he was still supposed to be checking in with his probation officer in Chilton. He thought his supervision had been consolidated in Shelby.”

Upon learning there was a warrant for his arrest out in Chilton, Nelson said, Ryan turned himself in and spent three months in jail. He is now out and struggling “to support himself and his young son,” and his payments for drug court fees, fines, payments for drug tests and supervision fees eat up nearly half of his monthly income.

Also cited in the report is a woman named “Amber.” According to a summary of her story by Appleseed Executive Director Carla Crowder, Amber left Tutwiler Prison for Women last September “to return home to Madison County and care for her teenage sons.”

“Amber was released to community corrections … was expected to pay $290 a month for electronic monitoring plus more for drug tests, court costs, fines, and fees. She found a job at $250/week, but pays about a third of her monthly income toward electronic monitoring and drug court fees alone. When we last spoke, she wasn’t sure she’d be able to keep up with the payments. Failure meant a swift return to prison.”

Another example in the report is “Bernard,” who wants to get a job to support his family, but being in both the Jefferson County Community Corrections program and the City of Birmingham’s municipal drug court — and being subject to their various requirements — has made his job search difficult.

The report is packed with recommendations for state lawmakers, courts and for those who administer the diversion programs. The recommendations for lawmakers include fully funding “diversion programs and alternatives to incarceration,” funding mental health courts through the Department of Mental Health “to divert mentally ill offenders from jails and prisons while providing expanded community-based psychiatric services,” and passing legislation “to combine and simplify the layered, inconsistent, and overlapping acts under which most diversion programs in the state operate.”

The report, which cites an example of an Etowah County resident having to make a round-trip of more than 360 miles to attend a monthly drug court session in Marengo County, states lawmakers should make it possible for those in diversion to participate in programs “where they have homes, family, and/or social support, not where they offended.” It also urges legislators to “mandate the creation of a system” through which “judges can easily see the totality of an individual’s obligations, including court debt and participation in diversion, and require all jurisdictions including municipal courts to participate.”

State Study Group Made Similar Recommendations

Meanwhile, the governor’s criminal justice study group, whose members included Attorney General Steve Marshall, Corrections Commissioner Jeff Dunn and six state legislators, issued its own report earlier this month. Among other things, the report called for reforms in sentencing, more funds for prison inmate education and mental health programs, the hiring of more correctional officers, more flexible hours for parole officers to accommodate the schedules of those they supervise, and more help for inmates to get the government documents they need to drive or get jobs.

The report also had a section on diversion programs.

In a letter accompanying that report and in language that mirrored some of Leah Nelson’s comments, group chairman Champ Lyons said the Legislature should establish a commission to “dig deeper” into the issues surrounding diversion programs so these matters “can be comprehensively addressed in the 2021 legislative session.”

Diversion programs “hold enormous potential for the state because they steer low-level offenders into programs that address underlying factors that contribute to criminal activity — substance abuse, lack of educational attainment, and lack of employment,” Lyons wrote. “There are several alternative courts and diversion programs across the state that work extremely well and help divert people from further illegal activity.

“But in many places,” Lyons added, “these programs are unavailable, underfunded, or simply inaccessible. There are also serious concerns about the ‘pay-to-play’ aspect of some of these programs.”

While recognizing the need for diversion reforms, the former Alabama Supreme Court justice said the study group is recommending legislation to require the programs to do “better data collection” on their activities and results. However, he said the group was not able “to identify a proposal that would comprehensively address the challenges in improving quality and access.”

In an email, Lyons said the system needs uniform standards by which to operate, but “solutions in that area are complicated by the fact that pretrial diversion and specialty courts are each separate programs operating under independent branches of state government, the executive and judicial. And, add to that the numerosity of separate local entities which is a byproduct of having 41 judicial circuits.”