Perspectives on Diversion in the Criminal Justice and Health care Systems

Diversion is simple in concept in criminal justice and health care but difficult to absolutely define. In practice, however, the objectives for diversion programs within and across the criminal justice and health care systems are distinct. From institutionalized mental health programming in detention facilities to social workers and officers on the front lines, the criminal justice and health care systems have attempted to decrease recidivism among justice-involved individuals with mental illness through a myriad of programs and services offered across multiple jurisdictions. Diversion programs are conceptually linked to the wider debate concerning retributive and restorative justice seen in the United States, but seen in the world writ large as well, ranging from informal decisions by street-level officials to prevent individuals from entering one or the other of the systems to official programs designed to alter the traditional flow of justice-involved individuals with mental illness into jails. The juxtaposed system of criminal justice and health care (mental health) services is then viewed as being most capable of achieving diversion.

Diversion programs in practice are often holistic, localized approaches designed to engage justice-involved individuals with mental illness with the resources and services they are most in need of. The plethora of programs serve means of providing pre-arrest, pre-booking, post-booking, post-charge, and post-adjudication opportunities for both individual and societal success. Working to explore these new possibilities the authors included in this special issue is an important part of that discourse.

Discussions of bridging health care and criminal justice systems are not new. Rather than institutional monoliths immune to reform, the underlying logic of treatment for justice-involved individuals with mental health issues have changed repeatedly over the years in and across both systems. An outdated but still prevalent belief persists that mental illness puts individuals at a higher propensity for crime and creates perceptions where the belief is individuals with mental illness should be managed differently than average citizens. This leads to a misguided conceptualization of justice as a diversion that is premised on myth and symbolism as well as being defined by well-intentioned public policies (Schneider & Ingram, 1993). The seemingly unintended consequence is that instead of receiving the assistance they truly need, people with “mental illness get treated as criminals, arrested, charged, and jailed for a longer time in jail compared to the general population” (Ghiasi et al., 2023). The raison d’être of diversion is, therefore, the knowledge that mental illness places an individual at greater risk of the revolving door of recidivism not only with the criminal justice system but equally so with the health care system.

Societal conceptions of mental illness and the management of individuals with mental illness have changed substantially over time and continue to evolve with new treatments, medications, and ongoing revision of the Diagnostic and Statistical Manual of Mental Disorders (5th ed., text rev.; American Psychiatric Association, 2022). French philosopher Michel Foucault saw modern (1970s) psychiatry as treating not illness but deviations from societal expectations and “conventional bourgeois morality” (Gutting & Oksala, 2022). In addition, Foucault (1975) saw this system in tandem with schools, hospitals, armies, and criminal justice as a means to create “docile bodies” (p. 135). These docile bodies were meant not to serve as the best citizen or patient but as pieces of the larger machinery of society. The strict adherence to sentencing guidelines and regulations from this view is part of the creation of docility, a system in which mental health and its needs are ill-suited to incarceration. As systems have changed in the past, they remain open to change now. Foucault believed that “rationalism, concepts, and knowledge need not be a closed system; a priori assumptions are subject to change” (Joranger, 2016, p. 42). Diversion programs and practices are a means to change a very rigid caste-like system, allowing people in need of assistance to receive the aid they deserve rather than simply being made “docile” conformists.

The academic study of diversion spans many disciplines. Approaches to this study explore diversion from many different perspectives. The articles in this special issue demonstrate this diversity with contributions from criminology and criminal justice, law, economics, political science, public policy, public health, psychiatry, and social work. The following summaries discuss the articles in this special issue, examining theory, practice, and evaluation of diversion.

The first article is Gittner, Dennis, and Forbis’s theoretical contribution on bridging the fields of criminal justice and health care. Their work, “Diversion: A Systems Theory Perspective,” presents the necessary framework to begin creating a unified theory of diversion that aims to bring cohesion to scholars and practitioners. A challenge of diversion is the myriad approaches that often work from vastly differing backgrounds and methodological approaches. While diversity should never be chased away from any field, a unified set of definitions and theoretical framework could help the field of diversion more easily communicate and coordinate those scholarly efforts. In bringing works from both criminal justice and health care, the authors present useful applications from both fields while endeavoring to create new context in which conversations can take place. In addition, the call for a normative theory places diversion as an inherently beneficial service to steer it away from the negative connotations and politicalization found both in detention centers and health care facilities. Thoroughly examining the micro-, meso-, and macro-levels of the field, the authors cover many of the aspects of diversion in a way that can be repurposed toward a more unified transdisciplinary lens of inquiry.

The second article serves as a reminder to scholars and practitioners that mental health context and outcomes often exclude critical analysis of the nuances of psychiatric diagnoses. Berryessa’s “Exploring the Impact of Remorse on Recommendations for Sentencing Diversion for Defendants with Psychiatric Diagnoses” uses interview data from a sample of probation officers to offer insight into the micro-level perceptions of those working closest with justice-involved individuals. Probation officers are often included in discussions of sentencing. This study focuses on the theme of offender remorse through the lens of the probation officers’ perceptions and physical manifestations of remorse (e.g., crying, body language, verbal apologies, and other behavior). She finds expression of remorse, however, can differ drastically when individuals are impacted by psychiatric diagnoses such as autism, schizophrenia, bipolar disorder, addiction, and so on. Berryessa also finds that probation officers evaluate these types of diagnoses in three unique ways prior to offering suggestions for sentencing diversion. Berryessa’s inclusion of probation officer’s remorse assessments in the diversion process offers a glimpse into how individual perceptions and expressions of emotion are understood and processed by both street-level officials and the justice system as a whole.

Attention to probation officers and their role in diversion efforts takes center stage in the third article. In “Identifying Multilevel Community Supervision Challenges to Inform Diversion Approaches for People with Mental Illnesses,” Waters, Mercier, Disbennett, Ziaii, Cuddeback, Velazquez, and Van Deinse challenge existing understandings of treatment as an isolated concept and mental health as the sole concern of diversion. What Waters et al. accomplish in their work is a bridge between the theory of social ecology and the praxis of health care-based diversion efforts. Through analysis of in-depth interviews with probation agency representatives, they find four crucial social elements that are necessary for appropriately managing justice-involved individuals with a mental illness. The authors advocate development of micro-level support for individuals involved with the criminal justice system. The support must focus on material resources, probationary capacity, interorganizational relationships, and community engagement. Macro-level policy and meso-level program reforms are then necessary to implement the changes highlighted in Waters et al.’s article.

The fourth article moves from probation officers and micro-level perception of those working with clients to an analysis of the police social worker (PSW) model. Ban and Riordan’s “Re-Envisioning Public Safety through an Embedded Police Social Worker (PSW) Model: A Promising Approach for Multidisciplinary Resource Delivery and Diversion” showcases a promising U.S. policing policy reform. For many individuals, interaction with police and the criminal justice system is the most available pathway to mental health treatment. Diversion programs serve as a link between justice-involved individuals with mental illness and community, health, and social services. Successful diversion hinges on allocating resources and assisting individuals in efficient and effective ways. The PSW model advocates for the inclusion of social workers in police and sheriff’s departments for the purpose of starting diversion and mental health care immediately. Through qualitative coding of case notes, the authors find that embedded social workers within police departments can positively impact experiences and outcomes of individuals with mental illness and their communities. As such, social workers on the front lines are able to offer resources and referrals by working directly with high-need individuals and more directly bridging the gap between health care and criminal justice systems.

Diversion, across the varied methods of implementation, must be evaluated as well. The fifth article details the aspect of diversion from a programmatic perspective. Roddy, Nighswander, Roddy, and Ray evaluate the efficacy of diversion programs in regard to substance use disorders (SUD). In “Outcomes of a Court-Based Substance Use Disorder Diversion Pilot Program: A Cost Analysis,” the authors use a large sample of SUD diversion program participants to illustrate impacts on re-arrest and cost-effectiveness. Roddy et al.’s findings show SUD diversion efforts hold promise with a quantitative analysis indicating reduction in re-arrest for participants. However, their much-needed addition to the field also calls for more attention to levels of treatment associated with diversion. Diverting those with SUD without proper attention to the spectrum of needs of those individuals falls short of the objective of reducing an individuals’ recidivism.

The sixth article proposes a new look at an existing form of diversion. In “Who Deserves Diversion? A Theoretical Critique of Mitigation, Consequentialism, and the Juvenile Court,” Zane and Mears challenge assumptions of who is deserving of diversion. Juvenile justice is and continues to be a form of diversion from traditional criminal justice processes. The goal of juvenile justice for youths, who are seen as deserving of less punitive forms of justice, seeks to avoid traditional forms of adult-based, punitive-oriented forms of justice. They find this form of diversion as effective because youths are more likely to be rehabilitated if they are provided help, guidance, treatment, and support, rather than punishment. Diversion as a concept is, at its core, a diversion from one or more established systems to another. However, as Zane and Mears bring to our attention, the form of diversion for juveniles hinges on deservedness. How do the systems, then, rationalize who is and is not deserving of this form of diversion? The theoretical contribution of this article extends our understanding of consequentialism and its role in diversion of justice-involved juveniles with and without mental health issues. Zane and Mears address interventionist and non-interventionist conceptualizations of juvenile-based diversion and underscore the complexity of the current criminal justice and health care systems.

While many studies on diversion face the lens outward to better understand the ways in which justice-involved individuals are impacted by mental health resources and sentencing, the seventh article offers a unique look at the challenges faced by those implementing diversion. Lawson and Grommon’s work, “Occupational Stress Associated with Technological Diversion among Pretrial Services Officers: A Qualitative Case Study of GPS Supervision for Intimate Partner and Domestic Violence Cases,” uses semi-structured interviews with corrections officers to study the impact on officers tasked with carrying out diversion. Global Positioning System (GPS) supervision, implemented as a form of diversion from traditional pre-trial detention, is found to produce far more occupational stress on corrections officers. Lawson and Grommon interviewed correction officers who noted drastic changes in their roles following the implementation of the GPS diversion program. New tasks such as being educator, analyst, advocate, and engineer placed increased responsibilities on an already stressful workload. The additional roles and subsequent stress represent an unintended consequence of a well-intentioned diversion program.

The final article provides a usable, tactful, and generalizable tool with which diversion outcomes can be reported. Gittner and Dennis address one of the most salient challenges in diversion—evaluation. The differing meanings held between criminal justice and health care systems and the varied objectives sought by diversion programs are addressed in “A Standardized Matrix for Mental Health Diversion Program Reporting.” Gittner and Dennis propose their matrix as a solution to the all-too-difficult process of comparing and assessing diversion programs. The proposed matrix uses contextual and program-specific variables complete enough to offer detailed evaluation while general enough to be applied to any of the thousands of diversion programs across the United States. Showcasing the potential usefulness of the matrix for reporting, they offer two exemplars, Lubbock and Miami-Dade counties, to illustrate the real-world application of their evaluation reporting tool. Practitioners and scholars alike will, hopefully, find this work to provide an enriching standardization to evaluate diversion programs.

This special edition issue of Contemporary Criminal Justice provides a snapshot of diversion as it stands in the 2020s. Diversion addresses one of society’s wicked problems: the care and treatment of vulnerable populations, individuals with mental illness. Diversion programs can help to reduce recidivism rates, improve the function and well-being of justice-involved individuals with mental illness, and make the criminal justice system more just. However, good intentions do not automatically lead to good outcomes. The future of diversion depends on collaboration and information sharing of all practices across multiple jurisdictions so that we can learn from each other as in this special issue on diversion. Our hope is that the articles published here will spark further research that seeks greater understanding of and resolution to the challenges created by the juxtaposition, some might even say entanglement, of the justice system and the mental health system.