Pre-booking diversion: an alternative to conviction and incarceration

Gregg Bernestein: Baltimore is an ideal city for a pilot Law Enforcement Assisted Diversion program.

In Baltimore City, approximately 20,000 people were arrested for drug-related offenses annually in 2012 and 2013; nearly three quarters for simple possession. And while there has been a great deal of discussion over the last few years regarding the incarceration of individuals for drug crimes, particularly in minority communities, the fact is that most drug cases in Baltimore do not result in confinement, except for those unfortunate enough not to have the funds to post bail while awaiting trial. Instead, defendants' cases are either dismissed for various reasons or defendants are placed on some form of post-conviction supervision. Notably, the re-arrest rate for many of these individuals is high.

People may make their own choices whether to use and/or sell drugs, but independent decision-making is steadily reduced as factors such as addiction and economic disadvantage come into play. Given the failure of the so-called "war on drugs" to stop illegal drug use and the violent crime that often flows from it, the question becomes how to end this cycle of arrest and re-arrest and the concomitant expenditure of resources to deal with these cases in ways that will meaningfully reduce crime.

The city of Seattle has tried a different approach. Under Seattle's Law Enforcement Assisted Diversion program (LEAD), eligible low-level drug and prostitution offenders are diverted to community-based treatment and support services at the time of arrest, thereby avoiding prosecution and incarceration. Here's how it works: When an eligible individual is arrested for a drug or prostitution offense, a trained police officer has the discretion to refer the arrestee to a designated case worker in lieu of booking the individual into jail to await trial. The LEAD case worker conducts an assessment of the individual at the police precinct and connects him or her with services that most address their needs, which may include drug treatment, housing, education, job placement, transportation, child care and other services. If the individual does not take advantage of the assistance offered or is re-arrested, he or she may ultimately be prosecuted for the arrested offense. Significantly, unlike traditional drug courts in which the defendant must first plead guilty and be subject to incarceration if he or she does not abstain from drug use or does not otherwise comply with the conditions of supervision, there is a recognition that the process of changing the individual's destructive behavior is a long and difficult one, and the person may continue in the program even if complete abstinence from drug use is not immediately achieved.

LEAD has been operating in a downtown Seattle neighborhood for the past two years, and the results have been positive. The recidivism rate of individuals participating in the program has been substantially reduced compared to a control group, resulting in a cost reduction in judicial resources and crime generally, not to mention the positive impact in providing important services for those affected and eliminating their destructive behavior caused by addiction. Officials are now discussing expanding the LEAD formula city-wide. The city of Santa Fe, N.M., recently started a similar program modeled on LEAD, and the Open Society Institute is looking to expand the LEAD model internationally.

Equally significant has been the impact on the relationship between the community and the police. Citizens who live in the neighborhoods where LEAD has been operating have been uniform in noting the improvement in police-citizen interactions. Police officers are no longer viewed as simply government agents who arrest people, often during emotionally and physically confrontational circumstances, but as community officers assisting individuals with drug-related problems and other debilitating issues like homelessness and mental illness. Indeed, officers participating in LEAD are also permitted to refer individuals to LEAD-based services through "social contacts" when engaging people in situations that do not involve arrest, which has the added benefit of helping police officers understand the range of problems confronting citizens living in disadvantaged neighborhoods who struggle to sustain basic needs. The result is a re-evaluation by both officers and citizens of entrenched biases and prejudices.

One other important lesson learned from Seattle's LEAD is that cooperation and collaboration is possible among different agencies with diverse priorities which often are in adversarial relationships. In order for a program like LEAD to work, there must be buy-in from the entire spectrum of criminal justice and social agencies including police, prosecutors, social services, community leaders, elected officials and others. Baltimore is an ideal city for a pilot program, provided these diverse groups have the collective will to devote the human resources and police training necessary to provide meaningful services to some of our most distressed citizens. We have heard much of the distrust and animosity that exists between police and citizens. A LEAD-based program could go a long way toward rebuilding that trust and serving the dual goal of both breaking the cycle of addiction and destructive behavior that negatively impacts our communities and forging strong, cooperative and mutually respectful relationships between the police and the citizens they have sworn to protect.

Gregg Bernstein is a partner at Zuckerman Spaeder LLP and a former Baltimore City state's attorney. His email is

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