Lots of people these days are calling for more diversion and alternatives to incarceration.
I am one of them.
Around the country, you can find references to police diversion, prosecutor-led diversion, judicial diversion, alternatives to bail, alternatives to detention, alternatives to incarceration, and alternatives to fines and fees.
A few examples:
There are plenty of reasons for this phenomenon.
Diversion and alternatives to incarceration have been shown to increase public safety and reduce prison and jail populations. They have been important tools to address what research has shown to be the criminal justice system’s disproportionate harm to Black and brown people.
And they are supported by public opinion. A recent national survey found that most voters prefer diversion and alternatives to confinement and conviction, echoing the findings of a 2016 national survey of victims.
Properly designed, diversion or alternatives can not only reduce unfairness but actually increase fairness and perceptions of fairness, enabling us to glimpse an affirming path forward for criminal justice―as paradoxical as that may sound.
So, it’s safe to say that diversion and alternatives are gaining traction. And with the Biden administration, we can expect to see more.
But there’s one major problem: the names we call them are not only terrible, but counterproductive.
After all, a “diversion” is a deviation from the norm: we divert drivers off the main road; we divert water away from the main stream. A diversion is a mere trifle.
An “alternative,” may be worse than a deviation; it practically has the allure of deviance thrown in. “Alternative lifestyles?” We’ve moved past that phrase: Many of us accept any lifestyle as normal and fine!
For example, “alternative medicine,” is now, “integrative medicine.”
Does it really matter what we call these programs, whether it’s “diversion,” “alternatives,” or anything else? Who cares, if they do the job?
Why It Matters
Well, indeed, it does matter, as Lucy Lang, the former head of the Institute for Innovation in Prosecution at John Jay College, has forcefully pointed out.
These justice responses can be more appropriate, more proportionate, more effective, more meaningful, and more fair than traditional, retributive responses. Don’t we want our justice system to embody such qualities?
Don’t we want these outcomes to be the norm, not the alternative; the mainstream, not the diversion?
These terms may even buttress the idea that maximalist retribution is normative, making it seem more appropriate as a counterpoint to an “alternative,” and an acceptable default.
And, in fact, these programs rely on the discretion of prosecutors and judges. You won’t find their use written in a state’s penal law, because community-based services mostly are the product of the criminal justice system’s monster work-around to avoid trials: plea bargaining. A prosecutor and a judge must choose to allow the defendant the chance to participate in such a program, rather than seek the legislated criminal penalty.
How can we convince prosecutors, part of a norm-following, straight-arrow bureaucracy to use their discretion? Or judges, who seek to follow―not deviate from―precedent? It certainly isn’t by calling such programs “alternatives” or “diversions.”
We need a different name; one that evokes values and principles that can act as a North Star. We could accurately call these justice system responses, “community-based services and supervision.”
But it’s a mouthful; and it’s not euphonic.
So, how about “Community First”?
Community First would make it clear that diversion and alternatives will no longer be either “diversion” or “alternatives.” Framed this way, we will be declaring that
(1) community-based providers are best suited to address underlying problems affecting defendants;
(2) wherever possible, obligations and sentences should take place in a community setting, as opposed to an institution like jail or prison; and
(3) a justice system must dedicate itself to serving the needs of its communities (including victims, residents and defendants) and not merely the demands of the state.
In her inaugural speech, new Westchester County (NY) District Attorney, Mimi Rocah, announced that she will take a “Community First approach” to expanding diversion and alternatives.
By using this term, DA Rocah sent a powerful message to victims, communities, defendants, and even system actors that criminal justice in her jurisdiction will respond with more than punishment, more than preserving order for the benefit of the state.
Instead, criminal justice will be about community, first.
Let’s hope that other public officials, as well, show leadership by embracing this approach. And soon.
Adam Mansky is the former Director of Criminal Justice at the Center for Court Innovation, where he launched the Red Hook Community Justice Center and managed the Center’s many criminal justice operating programs across New York City and in Newark, N.J. Adam chaired Westchester DA Mimi Rocah’s Transition Committee on Restorative Justice, Alternatives to Incarceration, Diversion, Reentry, Mental Health, Addiction & Youth. His twitter handle is @urbansdad; and he can also be reached at his email, firstname.lastname@example.org.