Discretion and Diversion in Albany’s Lead Program

• Author: Sarah J. McLean,Robert E. Worden
• DOI: 10.1177/0887403417723960
• Published date: 01 July 2018
• Date: 01 July 2018
• Subject Matter: Articles

https://doi.org/10.1177/0887403417723960

Criminal Justice Policy Review

2018, Vol. 29(6-7) 584 –610

© The Author(s) 2018

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DOI: 10.1177/0887403417723960

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Article

Discretion and Diversion in

Albany’s Lead Program

Robert E. Worden1,2 and Sarah J. McLean1

Abstract

In early 2016, Albany police launched its law-enforcement-assisted diversion (LEAD)

program, providing for discretionary prebooking diversion for low-level offenders

whose offending was driven by drug addiction, mental illness, homelessness, or

poverty. We examine the exercise of officers’ discretion in making LEAD diversions

by analyzing eligible incidents to estimate the effects of offense-, suspect-, and

officer-related variables on discretionary decisions, and by analyzing semistructured

interviews with officers. We find that in the first year of LEAD, diversions were few in

number, and the individuals diverted to LEAD were not generally people with a high

level of previous justice involvement. Officers’ attitudes toward diversion and toward

LEAD were mixed, and those attitudes influenced the exercise of their discretion.

Overall, we find evidence of the same kinds of challenges that have confronted the

implementation of new programs in many police agencies, particularly challenges to

“pluralized” drug control.

Keywords

police discretion, police decision making, diversion, harm reduction

Introduction

In late 2011, the Seattle Police Department and its partners launched the law-enforce-

ment-assisted diversion (LEAD) program, providing for the voluntary diversion of

drug offenders from criminal prosecution to treatment in the community. With LEAD,

Seattle adopted a harm reduction approach to offenders whose criminality is driven by

substance abuse—that is, the object was not abstinence but the mitigation of harms to

the offenders, people in the offenders’ lives, and the community. Offenders who enroll

1John F. Finn Institute for Public Safety, Albany, NY, USA

2University at Albany, SUNY

Corresponding Author:

Robert E. Worden, John F. Finn Institute for Public Safety, 421 New Karner Road, Suite 12, Albany,

NY 12205, USA.

Email: rworden@finninstitute.org

723960CJPXXX10.1177/0887403417723960Criminal Justice Policy ReviewWorden and McLean

research-article2018

Worden and McLean 585

in LEAD are disenrolled only if they fail to engage with the program and not merely

because of drug use. The diversion of such offenders is seen as a more humane and

effective response to their offending, and it was also expected to reduce racial dispari-

ties in arrest, prosecution, and incarceration. With evaluation results that claimed a

reduction in recidivism of as much as 58% and corresponding savings in criminal

justice expenditures (Collins, Lonczak, & Clifasefi, 2015a, 2015b), Seattle’s program

has been hailed as an exemplary shift further toward a public health approach to drug

control and away from a punitive, criminal justice approach. With favorable results

emerging at a time when police–community relations were particularly strained,

LEAD appeared all the more attractive, with its promise of reducing tensions between

law enforcement and the minority communities that have been hardest hit by both

street-level drug markets and the war on drugs.

In 2016, Albany, New York, followed Seattle and Santa Fe as the third city in the

United States to put a LEAD program in place. Albany’s LEAD is a prebooking diver-

sion program in which diversion turns on the discretion of individual officers at the

point of contact with an individual who has committed a criminal offense or violation.

Officers may—but are not required to—divert offenders whose criminal activity is, in

officers’ judgment, driven by underlying health and behavioral issues: drug abuse and

addiction, mental illness, homelessness, or poverty. Moreover, Albany’s net of LEAD-

eligible charges extends well beyond drug offenses to a wide range of nonviolent

misdemeanors and lesser offenses. Like Seattle’s program, however, Albany’s is based

on harm reduction principles: Abstinence is not the goal of intervention, treatment is

voluntary, clients are not penalized for relapse or recidivism.

In this article, we examine officers’ discretionary decisions to divert suspected

offenders to LEAD. We can in this way learn more about the administration of justice

with respect to low-level violations of the law, as well as contribute to a better under-

standing of the dynamics of programmatic innovation in police organizations. We first

review the existing theory and evidence on police arrest decision making, which forms

a baseline of sorts for LEAD operation, and on the operation of similar, police-led

diversion programs. We then describe Albany’s program and the data on which we rely

to analyze LEAD diversions. Finally, we present the findings of our analysis and dis-

cuss their implications.

Diversion and Police Discretion

As a prebooking diversion program, Albany’s LEAD program is a form of what Goetz

and Mitchell (2003, p. 225) call “reintegrative outreach”: “the formation of crime

prevention programs involving law enforcement and human service organizations, or

direct involvement of officers in diverting citizens to remedial resources on a prearrest

or ‘pre-booking’ basis.” Such programs—applied to at-risk youth (Wyrick, 2000), the

mentally ill (Deane, Steadman, Borum, Veysey, & Morrisey, 1999; Steadman et al.,

2001), substance users (Goetz & Mitchell, 2003, 2006), and domestic violence offend-

ers—have a rather long history, and they are in some respects extensions of long-

standing police practices of nonenforcement and referrals to third parties. Writing in