Street diversion and decarceration.

AuthorFan, Mary


States seeking more cost-effective approaches than imprisoning drug offenders have explored innovations such as drug courts and deferred prosecution. These treatment-based programs generally involve giving diversion discretion to prosecutors and judges, actors further down the criminal processing chain than police. The important vantage of police at the gateway of entry into the criminal system has been underutilized. The article explores developing the capacity of police to take a public health approach to drug offending by engaging in street diversion to treatment rather than criminal processing. This approach entails giving police therapeutic discretion--the power to sort who gets treatment rather than enters the criminal justice system. The article draws insights from medicine and the experience of treatment courts about how to guide therapeutic discretion, mitigate the risk of racial disparities in selection of beneficiaries, and offer checks and balances on power.

TABLE OF CONTENTS INTRODUCTION I. WHY REHABILITATIVE POLICING AND WHY Now? A. Seeking Smarter Solutions to the Drug War B. Reimagining Traditional Criminal Justice Roles 1. Headway Involving Prosecutors and Judges 2. Why Police Matter Too: Leveraging the Street-Level Gatekeeper's Role II. A PRACTICABLE MODEL OF EVERYDAY REHABILITATIVE POLICING A. Insights from Mental Health Diversion for A Police-Sorting Model B. The Virtues and Dilemmas of Police Discretion in Therapeutic Sorting 1. Virtues: Cost Savings, Buy-In Cultivation, Role Internalization 2. Concerns: Therapeutic Discretion, Checks, Information Deficits III. ADDRESSING CONCERNS OVER AUTHORIZING POLICE TO ENGAGE IN STREET DIVERSION A. The Different Stakes in Street Diversion from Post-Arrest Diversion B. Ameliorating Skews in Therapeutic Judgment: Lessons from Medicine 1. Detecting and Defusing Implicit Bias 2. A Check on Low-Visibility Discretion: Data-Driven Monitoring 3. Improving Information Deficits: Cultivating Communicative Input C. Including More Serious Offenders in Rehab: Lessons from Drug Courts CONCLUSION INTRODUCTION

Today is a green light day in an experimental new role for police in dealing with drug offenders in urban Seattle. (1) In a program called "the first of its kind in the United States," police officers in the downtown Belltown area take drug and prostitution offenders--among the main staples of the criminal justice mill--to rehabilitative and social support services rather than criminal processing on select days. (2) The program also treats prostitution as a divertible offense because of the community's understanding that while male addicts are often arrested for drug offenses, female addicts are often picked up for prostitution. (3) The police-community partnership project is called LEAD--short for Law Enforcement Assisted Diversion, and an acronym that also captures the hope that the pioneering approach might flourish and spread to other jurisdictions. (4)

The need for wiser approaches to dealing with drug offending is acute. Drug offenses constitute the most prevalent ground for arrest and a major basis of imprisonment in the United States. (5) Over the last two decades, incarceration has quadrupled and spending on prisons has surged by more than 300 percent, but recidivism has stuck to between 43 percent and 45.4 percent. (6) In a microcosm of the national problem, police working Belltown's open-air drug markets reported just 54 repeat offenders accounted for 2,700 arrests. (7) The addicts, pushers, and prostitutes churn through the criminal justice system, from the streets, to arrest, to jail, in seemingly futile repetition. (8) Hoping to break out of this costly cycle, the LEAD program gives officers the discretion not to arrest and book as usual. (9) Rather than acting as the muscular arm of the incarcerating state, police serve as the first screen of an offender's suitability for rehabilitation and community reintegration.

Call it street diversion away from the system's standard answer of arrest and jail for drug offenders. The idea is to take a "public health approach" to the problem of persistent reoffending. Officers explain that the role change is a "cultural shift" and an institutional reorientation for policing. (10) This Article is about cultivating such a public health approach to policing drug offenders and designing safeguards for police discretion to divert at the street level.

The opening example of a program in part of downtown Seattle may seem hyper-local--but the embryo of a big idea in a microcosm is chosen as an emblem of greater possibilities. After all, one of the major criminal justice innovations over the last three decades, drug courts, started as a hyper-local Miami program. (11) The idea that began in miniature--treatment courts casting judges and prosecutors in rehabilitative roles--has since spurred a massive movement, with more than 2,500 programs across the United States and broad bipartisan support today. (12) The Article argues for extending our reimagination of traditional criminal justice institutional roles to a crucial and underutilized actor in forging therapeutic alternatives to incarceration--the police who stand at the entryway to the criminal justice system. (13)

Street diversion by police has the potential to help cut costs, reduce prison overcrowding, and promote long-term solutions to public health and order problems. (14) Converging conditions have created an opportune time to develop a rehabilitative role for policing. (15) States and localities are engaged in a widespread search for ways to decarcerate and relieve crushing budgetary pressures. (16) For the first time in more than three decades, the number of people incarcerated declined in 2010. (17) Though the decline was slight--0.3 percent--it was an important change in trend. (18) Many criminal justice reforms are making headway, particularly those tackling the system's approach to drug offenses. (19) Indeed, in a marked shift from the tough-on-crime politics of the past, states are showing political will to reform the punitive orientation toward drug offenses through legislation converting drug felonies to misdemeanors and curbing sentences. (20)

The notion of police participation in therapeutic sorting is not wholly foreign to the United States. Rehabilitative policing models have evolved in the context of pre-booking diversion of the mentally ill to cope with the deinstitutionalization of mental institutions. (21) This Article explores the most viable model for the spread of rehabilitative diversion and argues that police-driven sorting by specially trained officers is the most practicable option. (22) The challenge is how to cultivate the benefits of rehabilitative policing while allaying concerns over giving police discretion to determine who gets treatment rather than jail. The policing literature is filled with concerns and cautions regarding police discretion, including the discretion to be lenient. (23) Giving therapeutic discretion to the police rather than prosecutors or judges raises concerns regarding the low visibility of police decision-making on the street, information deficits, the hidden impact of unconscious bias, and the lack of cross-institutional checks. (24) The Article argues these are not insurmountable impediments. The benefits of rehabilitative policing outweigh the concerns if mitigating measures are taken.

The dilemmas of discretion are not unique to policing. This Article argues the experience of other professions exercising therapeutic judgment can inform ways to ameliorate concerns about police therapeutic discretion. For example, public health studies have found a host of apparent disparities in the treatments doctors prescribe for the same ailment depending on the patient's race. (25) The medical community has explored ways to improve therapeutic discretion, offering insights about how to counteract unconscious biases that influence judgment and decision-making, (26) use data-driven monitoring as a check on judgment, (27) and improve decision-making based on observations and questioning during brief encounters through communication education. (28) Drawing on insights from medical literature on discretion and disparities, this Article provides recommendations on mitigating the dilemmas of discretion in rehabilitative policing.

The analysis proceeds in three parts. Part I frames the need for rehabilitative policing, particularly in how the United States deals with drug offenders. This Part analyzes how the costs and ravages of the drug war are producing converging interests between majorities and minorities for change and have spurred reforms. Part II explores models for rehabilitative policing, drawing from experiments in therapeutic sorting among police departments dealing with the deinstitutionalization of mental hospitals. This Part concludes that ultimately a model based on trained officer sorting rather than a team of police and behavioral health professionals is the most practicable method of integrating street diversion into standard practice. The analysis acknowledges the dilemmas of giving police rehabilitative discretion, but argues a model that gives police rather than specialized experts the power is needed to effect change in everyday criminal law. Part III offers answers to potential objections to police discretion, drawing on medical literature on treatment biases and the experiences of drug courts.


    Across the nation, states are searching for ways to cut the crippling costs of punitive criminal processing as usual without endangering safety. (29) With growing bipartisan support, (30) American criminal justice is starting to come out of the long hangover of the punitive turn after the decline of the rehabilitative ideal--the loss of faith in the hope of reforming offenders--and the launch of the war on drugs in the 1970s. (31) Across the...

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