Types of Jail Diversion Programs

There are two general categories of jail diversion programs defined by the point in criminal justice processing where diversion occurs (Steadman et al., 1995):

Pre-booking diversion: Individuals with mental illness and/or co-occurring disorders may be identified for diversion by police, before formal charges are brought. Pre-booking diversion occurs at the point of contact with law enforcement officers and relies heavily on effective interactions between police and community mental health and substance abuse services. Most pre-booking programs are characterized by specialized training for police officers and a 24-hour crisis drop-off center with a no-refusal policy for persons brought in by the police. The most recognized program model is the Crisis Intervention Team (CIT) developed in Memphis, TN. Other models of pre-booking diversion involve collaboration between police and specially-trained mental health service providers who co-respond to calls involving a potential mental health crisis. The TAPA Center publication, A Guide to Implementing Police-Based Diversion Programs for People with Mental Illness, describes the experiences of many communities seeking to implement or improve CIT and other pre-booking diversion programs.

Post-booking diversion is the most prevalent type of diversion program in the United States. These programs identify and divert individuals with mental illness after they have been arrested. The TAPA Center publication, Non-Specialty First Appearance Court Models for Diverting Persons with Mental Illness: Alternatives to Mental Health Courts, discusses diversion models that occur very early in the criminal justice process. In some cases, individuals are diverted later in the process, including at disposition or sentencing. Points at which individuals may be diverted, post-booking, include:

• At or immediately after booking into jail, before the formal filing of charges
• Release from pretrial detention, with the condition of participation in treatment
• Prior to disposition, for example, upon the prosecutor's offer of deferred prosecution
• At disposition or sentencing; this may include deferred sentencing or release on probation with conditions which include participation in treatment
• When at risk of, or following, a violation of probation related to a prior conviction

Specialty courts, such as mental health courts, are an increasingly visible form of post-booking diversion program, in which all cases involving people with mental illness are handled through a special docket. The Department of Justice’s Mental Health Courts Program provides a great deal of information on the design, implementation and operation of mental health courts.

Diversion program staff work with prosecutors, public defenders, community-based mental health and substance abuse providers and the courts to develop and implement a plan for diversion and linkage to an appropriate array of community-based services. Nearly all post-booking diversion programs include some type of monitoring of compliance with treatment, though the level of supervision and the active involvement of the court vary from jurisdiction to jurisdiction. Charges are often reduced or dropped upon the individual’s successful program completion. In the alternative, the individual diverted may receive less time or no time in jail at sentencing as a result of participating in the jail diversion program.

It is important to distinguish jail diversion from discharge or transition planning. Discharge planning activities should be part of usual criminal justice processing and occur only when the detainee would ordinarily leave the jail. By contrast, jail diversion is a special, targeted program to short circuit usual criminal court processing to the benefit of the detainee, the correctional staff and the community.

Differing Perceptions of Diversion

To properly understand the policy debates around diversion, it is important to recognize that the term "diversion" is often used differently by criminal justice and mental health professionals. These differing definitions often complicate cross-systems collaboration.

For many criminal justice professionals diversion usually means either not filing or dropping charges in exchange for voluntary agreement to participate in some type of community-based programs. Under this arrangement, there is no continuing criminal justice supervision while the person completes the program as the prosecutor and the criminal court rescind any control over the case. A notable exception is specialty courts (e.g. drug courts and mental health courts where continuous judicial supervision is a key program element).

For mental health professionals, diversion is used to include any alternative to incarceration that involves community-based treatment. The alternatives may be voluntary or involuntary, that is, they may involve continuing criminal justice supervision while criminal charges or sentence are continued or held in abeyance for a specified period during which the client must meet the terms and conditions of treatment. Accordingly, options for diversion would include: (1) treatment as a condition of bail; (2) deferred prosecution; (3) deferred sentencing; and (4) pleading guilty with treatment as a condition of probation. With the broader concept of diversion, there is often much more willingness by prosecutors and the courts because they retain jurisdiction and help insure that the treatment expected is actually received.