Diverting people who use drugs from the criminal justice system: A systematic review of police-based diversion measures

Highlights

• Police-based diversion measures offer an alternative to the criminalization of drug use.

• Police-based diversion measures seek to prevent criminal offenses and other harms related to drug use.

• Police-based diversion measures are effective to prevent criminal offending.

• Police-based diversion measures are promising to improve the health of people who use drugs and lower social costs associated with drug use.

• Program acceptance by police officers, intersectoral collaboration, clear eligibility criteria, and timely access to services are conditions for a successful implementation and program delivery.

Abstract

Background

Previous reviews of the effectiveness of measures to divert those who use drugs from the criminal justice system have focused mainly on post-conviction or post-sentence programs and report mixed results. The present systematic review synthesizes evidence on the effectiveness of police-based diversion measures in reducing criminal offenses and other harms related to drug use and then summarizes evidence from qualitative studies to identify facilitators and barriers associated with the implementation of such measures.

Methods

Eight databases were searched to find evaluations of police-based diversion measures for drug-related offenders. Twenty-seven studies were identified. The vote-count method and the Maryland Scientific Method Scale were used to assess the impact of police-based diversion measures. Themes related to barriers or conditions facilitating the implementation of these measures were extracted from qualitative studies.

Results

Evidence from quantitative studies indicates that in general police-based diversion measures are effective in preventing criminal offending and show promising results for improving participants’ health and diminishing social costs as well as costs associated with processing drug-related offenses. There was insufficient evidence to draw conclusions about the effect of police-based diversion measures on drug use, drug accessibility, or changes in participants’ socioeconomic conditions. Findings from qualitative studies suggest that program acceptance by police officers, constructive intersectoral collaboration, clear eligibility criteria, and timely access to services seem to facilitate the implementation and delivery of police-based diversion measures.

Conclusion

Police-based diversion measures can be effective in preventing drug-related criminal offenses and harm. Additional research is needed to evaluate their effect on participants’ socioeconomic conditions and drug use as well as drug accessibility.

Introduction

Drug use creates an important economic burden for the criminal justice and public health systems (Mazerolle et al., 2006; Rehm et al., 2006). While most jurisdictions have implemented prohibition and deterrence-based programs, evidence for the effectiveness of the “get tough on crime” approach is scarce at best. Reviews suggest that police operations have limited success in restricting illicit drug sales and markets (Mazerolle et al., 2006; Sherman, 1990) and some studies have suggested that intensifying law enforcement activities to limit drug use may have harmful health and social impacts (Kerr et al., 2005; Wood et al., 2004). Several experts have questioned the effectiveness of the prosecution-incarceration-supervision nexus in preventing drug use, the criminal recidivism of those convicted of drug offenses, or health-related problems associated with drug use (Green & Winik, 2010; Werb et al., 2011).

The calls, for initiatives to divert those who use drugs to social services rather than dealing with them within the criminal justice system, are increasing (Rouhani et al., 2019). Previous reviews have, however, focused mainly on post-conviction or post-sentence measures (e.g., Brown, 2010; Hayhurst et al., 2015), and therefore provide limited insights into the potential of diversion programs initiated at the police-level.

The present study synthesizes the evidence presented in evaluation studies of diversion measures initiated at the police-level and aimed at preventing criminalization and other harms associated with drug use. Our systematic review summarizes evidence found in quantitative and qualitative studies to respectively report the impact of these programs and to identify the barriers and facilitators associated with their implementation and delivery.

The call for alternatives to traditional sentencing emerged in the 1990s in the wake of a growing number of offenders being prosecuted and incarcerated for drug-related offenses (Harrison & Scarpitti, 2002) and increasing recognition that drug use and possession was not only a law enforcement problem but a public health issue (Warner & Kramer, 2009). Diversion measures were designed to provide appropriate treatment, offer alternative means of managing drug-use offenses, and prevent drug-use and related criminal offenses (Goetz & Mitchell, 2006).

Drug treatment courts appear to be the most common type of diversion measures. Individuals who have a substance-related problem associated with criminal activities are offered the choice of entering a judicially supervised treatment programs rather than being incarcerated and charges are often dismissed upon completion of the program (Gottfredson et al., 2003; Wilson et al., 2006). However, the effectiveness of such diversion measures is not clear (Brown, 2010; Hayhurst et al., 2015, Stevens et al., 2022; Wilson et al., 2006; Wittouck et al., 2013).

While diversion can take place at several levels of the criminal justice system, previous reviews have mainly focused on post-conviction (e.g., drug courts, and other treatment alternatives to imprisonment) or post-sentence (e.g., California Proposition 36 or other services for probationers) alternatives (Hayhurst et al., 2015; Brown, 2010). According to the Sequential Intercept Model, diversion can take place at five intercept points: “(1) law enforcement and emergency services; (2) initial detention and initial hearings; (3) jail, courts, forensic evaluations, and forensic commitments; (4) reentry from jails, state prisons, and forensic hospitalization, and (5) community corrections and community support services” (Munetz & Griffin, 2006: 545). While the Sequential Intercept Model was initially developed to divert people with mental illness from the criminal justice system, it also applies to people who use drugs, especially since several “clients” from the criminal justice system have co-occurring disorders (e.g., alcohol and drug addiction as well as mental health problems).

Diversion measures at the first point of intercept – during encounters between police and people who use drugs – have been implemented in a growing number of jurisdictions (Stevens et al., 2022). Commissions for the Dissuasion of Drug Addiction (CDDA) are one example of police-based diversion measures articulated mainly around prevention and harm reduction (Hughes & Stevens, 2010). Portugal has drastically changed its approach to dealing with people who use drugs, to decrease drug-related offenses and the consequences associated with drug use. In July 2001, possession of any drug for personal use was decriminalized (de jure decriminalization), making drug use an administrative infringement rather than a criminal offense (Hughes & Stevens, 2010). Rather than arresting and charging individuals for using drugs, police officers direct them to one of the 18 local CDDAs, where their drug use problems and needs are assessed and the appropriate administrative sanction (e.g., community services, fine, interdiction against being places or with some people) if required, is determined, and contact with relevant services facilitated (Félix et al., 2017).

Police-based diversion programs have also been implemented in jurisdictions where drug use is still a criminal offense. Inspired by the harm reduction approach, Law Enforcement Assisted Diversion (LEAD), which creates a de facto decriminalization of drug use, has been introduced in Los Angeles, Atlanta, New Orleans, and other cities in the United States¹ to improve public safety by meeting the different needs of people who use drugs. Police officers in participating jurisdictions can offer individuals suspected of low-level drug and prostitution offenses the opportunity to participate in LEAD (Clifasefi et al., 2017). If they agree, after arrest, but prior to booking, eligible participants take part in a one-time diversion program. They are then referred to a case manager who connects them to services that help meet their stated goals and basic needs (e.g., shelter, food, housing, clothing) (Collins et al., 2019). Abstinence is not a condition for remaining in the program. LEAD involves a high level of coordination between program leaders, case managers, and the Office of the District Attorney to ensure that “all contacts with LEAD participants going forward, including new criminal prosecutions for other offenses, are coordinated with the service plan for the participant to maximize the opportunity to achieve behavioral change” (LEAD National Support Bureau, 2021: no pagination).

In Australia, police-based diversion programs rest on a mixture of de jure and de facto decriminalization (Hughes et al., 2016). Since the introduction of a national agreement to offer diversion to minor drug offenders in 1999, the number of police-based diversion programs has significantly increased in Australia (Hughes & Ritter, 2008), The most common type of police diversion programs is “cannabis cautioning”, where minor cannabis offenders are diverted away from the criminal justice system into education or treatment programs (Shanahan et al., 2017).

While several studies have found positive outcomes associated with initiatives such as LEAD and CDDAs (Collins et al., 2017, 2019; Félix et al., 2017; Félix & Portugal, 2017; Shanahan et al., 2017), concerns have also been expressed. First, these programs involve a coordinated collaboration between community partners and legal authorities, and it has been suggested that police officers may be reluctant to participate in activities seen as social work (Skogan & Hartnett, 1999; Worden & McLean, 2018). Second, citizens and other stakeholders may also be reluctant to participate in such programs if police officers are not seen as the legitimate “brokers” of such services (Goetz & Mitchell, 2006). Third, some studies have found that those involved in the operation of diversion programs, especially police officers, think that diversion measures trivialize drug use and could lead to increases in drug consumption (Worden & McLean, 2018), especially if alternatives to prosecution are not supported by campaigns promoting health and responsible drug use (Hughes & Stevens, 2007). At last, some concerns have been expressed about a possible net-widening effect (Stevens et al., 2022). The diversion measure could bring more people into contact with the criminal justice system than the “treatment as usual” condition. In fact, Christie and Ali (2009) reported a significant increase in people being prosecuted by the court following the introduction of the Cannabis Expiation Notice Scheme in South Australia.

As emphasized by Munetz and Griffin (2006), diversion can take place at various stages. Their Sequential Intercept Model shows the importance of conducting a systematic review of diversion alternatives offered by law enforcement agencies. Previous systematic reviews not only provide mixed evidence about the effects of diversion programs, but they have mainly focused on post-conviction or post-sentence measures (Brown, 2010; Hayhurst et al., 2015; Wittouck et al., 2013).

One exception is the work of Stevens et al. (2022) who have conducted a realist review of alternatives to criminalization for simple drug possession. Their review focused on contexts in which alternatives to criminalization operate, mechanisms likely to be triggered by these alternatives and their potential outcomes. Their main objective was not to critically appraise the quality of the evidence nor to conclude about the effects of these programs, but to propose a program theory by addressing issues relevant to end users (Stevens et al., 2022).

To complement the findings of previous reviews, we conducted a systematic review of police-based alternatives to the criminalization of drug use or possession. Our contribution to the actual literature is twofold. First, we synthesized the evidence about the effect of police-based measures for six categories of outcome: (1) health-related harms, (2) drug use, (3) criminal recidivism, (4) socioeconomic conditions, (5) drug availability, and (6) social costs and costs associated with the implementation of alternatives. Second, we reviewed results from qualitative and descriptive evaluations to identify barriers and facilitators associated with the implementation of diversion initiatives. The combination of both types of finding permits to determine if effective measures were successful at addressing barriers and facilitators associated with program implementation and service delivery.