4.3 Diversion from the Criminal Justice System
One response to the problem of criminalization is diversion, where a person is identified at some point (early or late) in the criminal justice system and provided with a pathway out of that system. Ideally, the person is shifted to an alternative form of supervision, support or treatment. Referring back to the example of the man in the park presented at the beginning of this chapter, an early “diversion” might have involved a mobile mental health team (rather than police) response to the park, connecting the man with mental health and housing resources – meeting his needs rather than arresting him. Regardless of his responsiveness to help, the man’s escalation might not have occurred, and he would never have had the opportunity to spit on that deputy at jail. He would have been diverted from the criminal justice system.
Diversions are not truly an alternative to or rejection of the criminal justice system. Diversions, instead, are part of that system. Diversion requires a person to have at least a brush and maybe a full engagement with the criminal justice system – whether that is a 911 call from a community member or an arrest or a conviction. Once identified as a person who should be diverted from the criminal justice system, the person is directed to a program more suited to their needs. Thus, diversion relies upon the infrastructure of the criminal justice system to fulfill its purpose, and in this sense, diversion is not a true “solution” to criminalization; it is only a response to that problem.
Most diversions seem imperfect, and that is at least in part because they are responses to the unfolding problem of a person in the criminal justice system. There is already a problem, and the diversion is just intercepting that problem and ideally lessening it – not fixing it. For example, the man in the park may be in contact with police again soon; perhaps he won’t want services; perhaps he will be emboldened by lack of punishment. On the other hand, perhaps he will respond to help; he definitely will not spend months in jail (or the hospital) for a minor offense; the financial cost of diversion is negligible. Alongside that is the certainty that no violent confrontation occurs where he or officers are injured.
4.3.1 Diversion Options
Diversion can occur at different points during a person’s involvement in the criminal justice system. Diversion may occur very early, allowing a person to fully avoid engagement in the system, in which case the diversion might be as simple yet powerful as outreach from a community mental health resource to a person who is experiencing a crisis, or the decision of a law enforcement officer to refer a houseless community member to a shelter – much as described in our example of the man in the park (figure 4.4).
Figure 4.4. This photo shows a young police officer and an older man sitting and standing companionably on the sidewalk. Police officers have great discretion to offer resources and create an early diversion opportunity.
Diversion can also come later, as in the form of alternative courts for those with mental disorders. In this case, a person has likely faced arrest and been referred to the district attorney for charges. A referral to a specialized court may give this person the opportunity to fulfill treatment or supervision requirements to avoid conviction on those charges. Further on, a person may be in the deep end of the criminal justice process, and diversion may present as planning that helps a person entering the community after incarceration find treatment and achieve stability.
Which moment is “best” to divert a person away from the criminal justice system is a point of much discussion and disagreement. Many contend that early diversion is crucial to avoid or minimize the risk, trauma and stigma of engagement in the criminal justice system; others wonder whether accountability may increase likelihood of successful diversion once a person has become engaged in the criminal justice system. Clearly there are risks and benefits to various approaches to diversion, but it is safe to say that diversion at any point is a likely improvement over diversion at no point, which only makes certain the person will remain in and often return to the criminal justice system.
4.3.2 SPOTLIGHT: Youth Issues
Disciplinary actions in our K-12 schools are meant to curb bad behavior, and hopefully deter future incidents of disruption. Unfortunately, certain kinds of school discipline wind up pushing students down a path that sets them up for failure, even feeding them directly into the juvenile or adult justice systems. This is referred to as the school-to-prison pipeline – and it is a source of anger and frustration for many communities (figure 4.5).
Figure 4.5 shows a community march in 2014, opposing school punishments that are part of the school-to-prison pipeline.
Take, for example, a young student who frequently loses his temper during class and becomes destructive. The rest of his classmates are ushered from the room while support staff are called in to handle the youngster’s behavior. After too many incidents like this, the student is suspended for several days. Because of his suspension, he falls behind his classmates on his schoolwork and his academic progress. This turns into more frustration, more outbursts, and more disciplinary action. His classmates now perceive that something is “wrong” with the student, and he is further isolated from his peers, leading to even more behavioral problems. And, eventually, the student’s behavior gets him involved with the juvenile justice system (figure 4.6).
Figure 4.6. A young woman holds a sign questioning why it takes commission of a crime for a child to mental health treatment
Scenarios like this happen all too often. The most vulnerable students to fall into this trap are students of color, those who have disabilities, and those with a history of poverty, abuse and neglect.
The Substance Abuse and Mental Health Services Administration (SAMHSA) reports that between 50% and 70% of incarcerated juveniles meet the criteria for a mental illness. Those numbers seem shocking, but researchers Ian Lambie and Isabel Randell found that the numbers are more realistically much higher – between 70% and 95% (Ojukwu, 2021)!
You may be thinking, judging from the numbers, that all of these school children with behavioral problems must also have mental health issues. While that may be true for many of these children, going to jail can itself traumatize and create mental health issues for these kids. Incarceration for youth is one of many Adverse Childhood Experiences (ACEs) that contribute to trauma-based mental health illnesses. Thus, it would seem that feeding children into this pipeline is serving only to exacerbate the problem.
The question is, then, what else can we do? A veteran special education teacher from Baltimore, Marietta English, believes the answer lies in better mental health services and other social supports for children in our K-12 schools (Collins, 2015). When she saw the problems with her school district’s discipline policies, she avoided office referrals as much as possible. The approach she took with her students was instead to talk to them and seek out the source of their anger. What English found was that these kids, more often than not, showed signs of depression and other mental health issues.
Research shows that approximately 20% of children have a diagnosable mental health disorder, and yet only 30% of those children go on to receive any sort of mental health services. Mental health problems bring with them a myriad of consequences, both short- and long-term. Examples are lower academic performance, increased rates of school dropout, increased rates of dysfunctional interpersonal relationships, increased likelihood of bullying peers, higher rates of incarceration, and even future adult unemployment..
Think about it:
If our K-12 schools focused largely on mental health and wellness and provided these services for troubled children from an early age, do you think we would see fewer violent incidents, as well as other bad outcomes? Would these diversions help avoid putting children into the juvenile or criminal justice systems?
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4446139/
Collins, S. (2015). Why mental health services could be the key to fixing the school-to-prison pipeline. Retrieved on June 17, 2022 from https://archive.thinkprogress.org/why-mental-health-services-could-be-the-key-to-fixing-the-school-to-prison-pipeline-ffc47b66cfac/
Ojukwu, O. (2021). The mental health impacts of the school-to-prison pipeline. Retrieved June 17, 2022, from https://www.eqcollective.org/news/the-mental-health-impacts-of-the-school-to-prison-pipeline
https://ncyoj.policyresearchinc.org/img/resources/Breaking_the_School_to_Prison_Pipeline-407058.pdf
Intsection_between_mental_health_and_the_juvenile_justice_system.pdf
https://www.eqcollective.org/news/the-mental-health-impacts-of-the-school-to-prison-pipeline
4.3.3 Licenses and Attributions for Diversion from the Criminal Justice System
“Diversion from the Criminal Justice System” by Anne Nichol is licensed under CC BY 4.0.
“SPOTLIGHT: Youth Issues” by Monica McKirdy is licensed under CC BY 4.0.
Figure 4.3. Photo by Elvert Barnes is licensed under CC BY-SA 2.0.
Figure 4.4. Photo of homeless man and police officer, by Ivaan Kotulsky via Toronto History from Toronto, Canada, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons.
Figure 4.5. Photo of march is licensed under CC BY-NC-ND 2.0.
Figure 4.6. Photo of a young woman is licensed under CC BY-NC-SA 2.0.