This is part 2 of a multipart series. Read part 1 here.
The California Policy Lab study we examined in our last article showed that San Francisco’s Pretrial Diversion Program (PTD) had lower conviction rates but greater rates of contact with the criminal justice system — the opposite of the intended outcomes. It also showed that diversion participants were committing an alarming number of new offenses even during the period in which they were enrolled in a diversion program. The authors wrote, “Defendants enrolled in Collaborative Court programs have more arrests during the pretrial period on average than defendants who are not diverted.” Table 10 of the study reveals that defendants who had been diverted multiple times to Behavioral Health Court were averaging 3.9 new arrests during the program. In the Community Support Court, single referrals averaged 3.1 new arrests, while those referred multiple times averaged 4.4 new arrests.
Even lower-level offenders in the original PTD program who were given multiple referrals averaged 4.4 new arrests while enrolled — seven times higher than those who received single referrals. The fact that diverted defendants were regularly allowed to commit three or four new crimes while out of custody raises serious public safety concerns.
Worsening attendance and success rates
Tables 16 through 22 illustrate the success and failure rates for the various programs, measured by completion rates. Although the study barely discusses these findings, they suggest that many individuals referred to diversion either never showed up or failed to meet the minimum enrollment requirements. In addition, many were terminated by the Court.
Combining figures for nonenrollment and termination failures (and excluding active diversions) during the last year of the study (2018), the failure rate for Young Adult Court was 84 percent, for Veterans Justice Court 66 percent, for Misdemeanor Behavioral Health Court 79 percent, for Drug Court 84 percent, for Community Justice Center 83 percent, and for Felony Behavioral Health Court 89 percent. Even the failure rate for the more successful low-level offender PTD increased steadily, from a recorded low of 11 percent in 2009 to a high of 51 percent in 2018.
In conclusion, the authors say, “This report demonstrates that many of San Francisco’s diversion programs target a high-risk sub-group of the justice-involved population. Participants in these programs experience lower conviction rates than non-diverted counterparts, on average, but continue to have high rates of contact with the criminal justice system — both during and following diversion.”
The fact that diverted defendants were regularly allowed to commit three or four new crimes while out of custody raises serious public safety concerns.
Stating that participants in diversion had “lower conviction rates” simply means that charges were dismissed for those who completed the program. In theory, these dismissals were a reward, while withholding dismissals for failed participants was meant as a deterrent. “Public defenders could say, ‘Here’s your only chance. If you screw it up, you’re going to jail,’” one former attorney explained.
The numbers in the study suggest that while this approach may have worked for low-level offenders given one chance at PTD, it was not an effective approach for the “high risk sub-groups” enrolled in felony diversion or for those with multiple program referrals. Defendants who committed more serious offenses, the study says, continued to have “high rates of contact with the criminal justice system, both during and following diversion.”
Update: In part 3, we’ll delve into how the California Policy Lab tried to do damage control with the 2020 study’s findings, as well as into the case of Patrick Thompson, who threatened violent acts while in diversion, and then stabbed two women after being declared a “successful” diversion graduate.
THE STUDIES:
July 2020, California Policy Lab, Alternatives to Prosecution: San Francisco’s Collaborative Courts and Pretrial Diversion
June 2021, California Policy Lab, The Impact of Felony Diversion in San Francisco