Four Types of Jail Based Diversion Programs – Alternatives to Incarceration

 

According to the Vera Institute, there were 537 inmates per 100,000 people incarcerated in the United States in 2021, including federal, state, and local jails. To help address this jail and prison overcrowding problem while simultaneously addressing mental health needs, local and state officials across the country have proposed various jail-based diversion programs. These programs allow justice-involved individuals to divert from jail and complete a form of treatment or educational classes (i.e., alcohol/drug classes). Generally, once treatment is complete without further problems, the court then dismisses the case. For example, there are four main types of diversion programs in California.

1. Juvenile Diversion

Across the country, many counties rely on the juvenile courts to issue alternative sentencing, law enforcement, and probation to divert youth away from the juvenile delinquency system into informal or formal diversion programs before detainment. Even if youth are temporarily detained, officers still retain discretion to initiate diversion except in cases involving youth who are 14 years old or older and charged with personal use of a firearm in the attempt or commission of a crime of a felony or any 707(b) offense.

The formal diversion includes officers referring and connecting youth to counseling, community-based service programs, and even shelters. A benefit to law enforcement referring youth to diversion programs is that the program or agency is then responsible for reviewing the referral and initiating a suitable program or notifying law enforcement in writing within approximately three weeks if a program is not set up (within ten days if law enforcement physically brings the child to the program).

Informal diversion through law enforcement is generally when officers release youth to their parents/caretakers and provide referrals/resources. When informal diversion is made through probation (perhaps because officers detained the youth, at which time they enter a juvenile hall facility under the supervision of probation), the probation officers can create a program of supervision that includes counseling, conflict resolution, or some form of a treatment program participation as a requirement of probation. Even if the District Attorney’s office files a petition, the judge has the discretion to order a term of informal supervision by probation. In some cases, certain crimes are presumptively ineligible for this option. Still, the court can site that the particular case in front of them is perhaps of unusual circumstances and that the best interest of justice is served by the youth receiving informal supervision.

2. Mental Health Diversion (PC 1001.36)

Generally, justice-involved individuals with a qualified mental illness can get treatment instead of jail time through mental health diversion. After treatment is complete, they can have their charges dismissed. Treatment can take the form of outpatient or inpatient therapy, substance abuse treatment, or general counseling. Treatment plans must be approved by the court and can last up to two years.

The law outlines eligibility. While both felonies and misdemeanors are eligible for mental health diversion applications, there are some crimes that DO NOT qualify. Similarly, a few mental health conditions do not qualify for diversion.

Crimes that DO NOT qualify for mental health diversion

• Murder or Voluntary Manslaughter
• Crimes that would require sex offender registration
• Rape
• Lewd or lascivious act on a child under 14 years of age
• Assault with intent to commit rape, sodomy, or oral copulation
• Commission of rape or sexual penetration in concert with another person
• Continuous sexual abuse of a child
• A violation of subdivision (b) or (c) of Section 11418

Mental Health Conditions that are NOT Eligible for mental health diversion

• Pedophilia
• Antisocial Personality Disorder
• Borderline Personality Disorder

Criteria for Mental Health Diversion Eligibility

• The individual suffers from a qualified mental illness.
• The individual’s mental illness must have played a significant role in the alleged offense.
• The individual’s mental illness will respond to treatment.
• The individual consents to waiving the right to a speedy trial & to participate in the diversion program offered by the court.
• The individual does not pose an unreasonable risk to public safety if treated in the community.

3. Veterans Diversion (PC 1001.80)

Like mental health diversion, veteran diversion is for justice-involved veterans and active-duty service (military) members who have a qualified mental illness to seek treatment instead of jail time through a diversion program. After treatment is complete, they can have their charges dismissed. Treatment can take the form of outpatient or inpatient therapy, substance abuse treatment, or general counseling. Treatment plans must be approved by the court and can last up to two years.

The law outlines eligibility. Contrary to mental health diversion, felonies are not applicable in the veteran diversion. It is for justice-involved veterans and service members being charged with misdemeanors.

Common Misdemeanor Offenses Eligible for Veterans Diversion

• Driving Under the Influence (DUI)
• Possession of Narcotics
• Misdemeanor Assault & Battery

Common Mental Health Conditions Eligible for Veteran Diversion

• PTSD
• Other Specified Trauma and Stressor Related Disorder (such as Military Sexual Trauma)
• Substance Use Disorders
• Traumatic Brain Injury (TBI)
• Major Depressive Disorder
• Generalized Anxiety Disorder

Criteria for Veteran Diversion Eligibility

• The veteran has a qualified mental illness.
• The veteran’s mental illness resulted from their military service.
• The veteran will benefit from treatment.
• The veteran agrees to waive the right to a speedy trial & to participate in the diversion program is offered by the court.

4. Drug Diversion (1000)

Drug diversion is for justice-involved individuals who suffer from substance use disorder to avoid jail time through a drug diversion program. After treatment is complete, they can have their charges dismissed. Treatment can take the form of outpatient or inpatient therapy, substance abuse treatment classes, or general counseling. Treatment plans must be approved by the court and can last up to 18 months.

The law outlines eligibility. This program is generally for first-time offenders with a qualifying misdemeanor offense.

Misdemeanor Offenses Eligible for Drug Diversion

• Possession of Narcotics (marijuana, cocaine, heroin, meth, prescription pills, peyote, ecstasy, and other hallucinogenic substances).

Common Mental Health Conditions Eligible for Drug Diversion

• Substance Use Disorders.
• Individuals could have an additional co-occurring mental health disorder like Major Depressive Disorder, etc. However, the key condition is that the person suffers from a substance abuse problem.

Criteria for Drug Diversion Eligibility

• The individual suffers from a qualified substance use disorder.
• The alleged offense cannot involve violence.
• Individuals must not have had any felonies in the last five years.
• The alleged offense is a misdemeanor for possession and no additional serious crimes such as sales or transportation of illicit substances.
• The individual would benefit from drug treatment.

In summary, there are various programs throughout the country similar to the ones mentioned above for California to divert justice-involved individuals away from the criminal justice and get them much-needed mental health and substance abuse treatment. Indeed, within Los Angeles County, several sub-diversion programs are offered through the Office of Diversion and Reentry (ODR). For example, ODR offers permanent supportive housing, intensive case management, and probation services. In addition, they have misdemeanor and felony incompetent to stand trial community-based restoration where individuals found incompetent are completing their restoration to competency treatment within a community program setting. Furthermore, ODR has prioritized diverting pregnant women from jail to community housing and support services to remain with their children until they obtain permanent housing. Last, but certainly not least, ODR provides funding to a sobering center, hospital care, and Mental Evaluation Teams (MET), which are specially trained co-responses field units (officer and clinician) that respond to community members who have a mental disorder and are in crisis in an unmarked patrol vehicle that is designed to be a patient-centric form of transportation.

If you are looking to obtain a diversion evaluation by one of our providers, please call Vienna Psychological Group to schedule a free consultation. We have completed hundreds of mental health and veteran diversion evaluations in the last two years. We are happy to assess your eligibility and provide treatment plans/recommendations if needed.

 

References

Health Services Los Angeles County. Office of Diversion & Reentry. https://dhs.lacounty.gov/office-of-diversion-and-reentry/

Kang-Brown, Jacob, Montagnet, Chase, and Heiss, Jasmine. 2021. People in Jail and Prison in Spring 2021. Vera Institute of Justice. NY, NY.

Navigating the Legal Landscape towards Juvenile Justice Transformation. Part 1: A Legal Map of Youth Diversion in California. Youth Law Center. 2020.

California Penal Code section 1000.

California Penal Code section 1001.36;  California Senate Bill 215.

California Penal Code section 1001.80