In a jail-based diversion program, individuals in jail who may have a mental illness are identified and evaluated and, if found eligible for diversion, are connected with mental health treatment. This process requires the agreement of the prosecutor, judge, and defense attorney.
Jail diversion programs, which can help ensure that people who have committed minor offenses aren't incarcerated, have some potential risks and drawbacks:
Critics say they don't deter crime: Some say that diversion programs allow offenders to avoid jail, which may make them more likely to commit crimes in the future.
Unfair to victims: Others argue that diversion programs are unfair to victims of crime.
Punishment may not be severe enough: Some may feel that if an offender isn't incarcerated, the punishment isn't severe enough, and justice isn't served.
May consider offender needs over victim needs: Some criticize diversion programs for appearing to consider the needs of the offender over those of the victims.
May promote leniency: Some say that diversion programs can promote leniency.
May underutilize resources: Some say that diversion programs may underutilize resources.
May restrict accessibility: Some say that diversion programs may restrict accessibility to certain groups.
May not provide enough time for reform: Diversion programs often end around 12 months, which may not be enough time for the offender to reform.
May have inadequate services: It can be difficult to implement diversion programs if there aren't enough services for the diverted individuals. Overestimating the capacity of treatment providers can lead to delayed treatment, case attrition, or failure to provide treatment.
Per the NIH (National Institute of Health),
"A structured review of 21 published jail diversion outcomes studies found that there was very little evidence for a reduction in criminal activity or the rate of recidivism, but solid evidence that the amount of jail time served was reduced as a result of diversion."
"The median point at which arrest has occurred for 50% of participants was 19 months for noncompleters, whereas for completers it was 48 months."
"Among noncompleters, approximately 51% refused services or were noncompliant, another 15% were lost to contact, 6% were deceased, and the remaining 28% were coded by the prosecutor's office as “other” reasons with no further details specified."
"In the first year, 42% of the noncompleters were reincarcerated compared to 14% among the completers. By the five-year mark, 67% of noncompleters had been incarcerated. In contrast, among those who completed the program, 37% had been incarcerated."
"Sixty-eight percent of the noncompleters have a substance abuse diagnosis compared to only 42% of the completers"
"There is evidence supportive of general risk factors that are related to criminal behavior for individuals with and without mental illnesses. Factors such as prior criminal history, criminal thinking patterns, substance abuse, antisocial traits, association with others involved in criminal activities, psychosocial factors, and sociodemographic variables are predictive of criminal behavior regardless of mental illness. It is important to note that substance abuse plays a significant role in criminal behavior among all people but may be of particular importance for people with mental illnesses."
"Consistent with other research findings, prior history contributes to the explanation of jail diversion program outcomes. In this study, the total number of jail admissions in the follow-up period was predicted by three variables in a multiple regression equation. These include (1) number of lifetime jail admissions prior to entering jail diversion: more lifetime admissions prior to diversion predict more postdiversion admissions; (2) whether the individual completed the jail diversion program: completers were incarcerated less after diversion; and (3) age: younger people were more likely to be incarcerated more times after diversion."
"Individuals with a longer length of participation in active treatment had better outcomes. This suggests that a longer length of participation and/or greater continuity of care with other community mental health services are needed."
"The best outcomes were found in the first follow-up year. By the fifth year of follow-up even among “completers” there is an increase in arrests. Thus, there is some question about the sustainability of gains after participation in jail diversion services."
According to reporting by CBS News:
"Judges have limited discretion to deny someone Diversion out of concern for public safety. There must be evidence that a defendant will commit a "super strike" (i.e., rape or murder) within the two-year program period in order for a judge to deny diversion due to public safety concerns.
Critics argue that it's nearly impossible to prove someone will commit a future crime and believe the law should be amended to give judges more discretion to deny diversion due to public safety concerns."
"State law now requires judges to automatically presume that nearly any mental illness is related to nearly any crime. Defendants no longer have to prove their crime was linked to their mental illness. As a result, common disorders (including ADHD, anorexia, marijuana dependency, and erectile disorder) are now considered eligible "mental illnesses" for people accused of felony crimes (including domestic violence, kidnapping, and attempted murder) to have their charges dismissed."
"To expand access and increase participation, Governor Gavin Newsom signed a revised law, which took effect in 2023.
Under the expanded Mental Health Diversion law, defendants no longer have to prove their diagnosed mental illness caused them to commit a crime. The revised law now requires judges to automatically presume that nearly any mental illness was the reason for nearly any crime unless the prosecution can prove otherwise. "
"Folks that shouldn't be in there, because they do pose a threat to public safety are getting admitted," said Rochelle Beardsley, Sacramento County's Assistant Chief Deputy District Attorney.
"Beardsley pointed to the example of Fernando Jimenez who allegedly killed a man while he was in the Mental Health Diversion program."
"Jimenez was previously arrested after violently attacking his elderly female neighbor over a disagreement, investigators say, about dog waste left in the common areas of their apartment complex. Court records reveal he cracked the woman's orbital socket and was charged with "Battery with Serious Bodily Injury"."
Per CBS, "Beardsley said there is little prosecutors or judges can do if they feel someone who is technically eligible for diversion might be a risk to public safety."
"I have to prove that this particular defendant is going to commit a super strike offense within the two years," Beardsley said. "That's impossible for me to be able to prove."
In a recent Placer County case, The People v. Shook, a doctor testified that she had reached an eligible diagnosis in every one of the hundreds of mental health diversion evaluations she had done.