Recognizing that people with behavioral health needs are overrepresented in the criminal justice system, many communities have developed alternatives to incarceration that connect eligible people to community-based treatment and supports. While efforts around preventing people from entering the criminal justice system and developing law enforcement diversion interventions are critical to connecting people to treatment community wide, this brief focuses on diversion efforts led by those working in courts, such as judges, prosecutors, defense attorneys, and court administrators. For information on other diversion opportunities, see Behavioral Health Diversion Interventions: Moving from Individual Programs to a Systems-Wide Strategy, and other associated resources.
Why set up court-based behavioral health diversion interventions?
Court-based behavioral health diversion interventions focus on connecting people with needed community-based care, usually after someone with mental illnesses, substance use disorders, or both, is booked into jail. These connections, which may be provided at a person’s initial court appearance or at subsequent court appearances, can be done through programs operating in a court or prosecutor’s office or as a pre-plea component of an existing problem-solving court (e.g., drug courts, mental health courts, opioids courts). While the diversity of diversion programs across the U.S. makes conclusive statements about outcomes difficult, research has shown that court-based diversion can shorten average length of jail stays and increase connections to treatment and supports without additional risk to public safety. Some programs have also been shown to reduce future criminal justice involvement. There are also studies showing how diversion programs can potentially save the criminal justice and behavioral health systems money.
Who can implement them?
Leadership of court-based diversion usually stems from judges and prosecutors, who drive the development of diversion policies and bring partners together. But they cannot do it alone. Other critical stakeholders in the court system include:
Pretrial services staff to identify potential candidates for diversion by adding behavioral health screening and assessments to pretrial intake processes; they may also play an important role in providing consistent monitoring and feedback to the court while people are on community supervision, which can help alleviate judges’ and prosecutors’ public safety concerns.
Defense counsel, including public defenders, who can partner with social workers or clinicians to screen and assess potentially eligible defendants advocate that eligible clients be referred to a court-based diversion intervention, and assist social workers in developing a case plan that features service linkage recommendations.
Behavioral health providers, who can make recommendations for services and facilitate connections to community-based organizations that link people to housing, substance use disorder treatment, and access to employment services, among others.
Prosecutors to determine who might be eligible for behavioral health diversion programs and connect people to the most appropriate services; these decisions can be made by individual prosecutors or on a larger scale by the elected prosecutor. Prosecutors, like defense attorneys, may also partner with social workers on their diversion efforts.
Judges, in addition to their potential role as system leaders, to recognize when a defendant is displaying signs of potential behavioral health needs and should be assessed and diverted from standard criminal court proceedings. Judges may also order a diversion, receive reports on progress, and oversee the dismissal of charges or resumption of a criminal case based on the participant’s completion of the program.
Court administrators to operationalize diversion programs by developing policies and procedures, assigning calendars, facilitating accessibility for participants and program partners, and potentially ensuring ongoing training and program sustainability.
Court-based clinicians or court liaisons to screen for eligible diversion program candidates, determine service needs, make referrals, and enroll people in diversion programs.
Jail-based staff to share information from screening and assessments that take place at booking or to identify people who might be eligible for services and then pass this information along to the court-based diversion lead.
Outreach specialists (also sometimes known as navigators, liaisons, or discharge planners) to identify relevant resources for veterans, individuals experiencing homelessness, and other sub-populations who may be diversion program participants.
What are some common best practices?
Every community is different, but court-based professionals can look to other jurisdictions that have demonstrated success for guidance when designing and refining their diversion interventions. Many jurisdictions will also adapt or expand upon what is already working in their drug courts, mental health courts, or other problem-solving dockets for a pre-plea context. Some best practices include:
Developing formalized, written cooperative agreements between the key diversion program stakeholders to ensure collaboration, program continuity, and consistency.
Adjusting traditional criminal justice proceedings to facilitate court-based diversion. This may take the form of a decision by a prosecutor to delay filing charges or suspend prosecution or a court order diverting the case.
Developing clear specifications for how “success” or “failure” is determined and how the results translate to a case proceeding or being dismissed.
Administering screening and assessments as early as possible in criminal justice proceedings; screening is the first step to ensuring that all people with behavioral health needs are identified and assessed to determine whether they are eligible candidates for diversion.
Establishing information-sharing protocols18 to ensure that decision-makers have access to needed health information while protecting individual privacy in compliance with federal (including both the Health Insurance Portability and Protection Act and 42 C.F.R. Part 2) and state privacy law. This may include obtaining authorizations to share information and determining what information can be kept out of public court files and open court hearings.
Determining appropriate adaptations to court operations, such as designated calendars for diversion cases.
Initiating relationships with behavioral health treatment providers and support services in the community to establish processes for referrals to quality care and supports and for reporting appropriate information back to the court on participant progress.
Developing engaging relationships with diversion participants in the courtroom that are based on transparency and accountability. Attention should also be paid to developing a role for people interested and trained in the impacts of mental illnesses and trauma and people with lived experience as trainers, peer resource specialists, or court navigators.
Tailoring supervision and services to the specific person’s needs for supervision and treatment; this should also include matching people with gender and culturally appropriate services, as well as minimizing any barriers to accessing these services (e.g., ability to pay, transportation, and child care).
Where and what can people be diverted to?
The exact treatment services provided once someone has been diverted will vary based on individually assessed needs and each community’s resources. However, once eligible people are identified through screening and assessment, they should be connected to a clinically appropriate level of care, needed supports (such as education and housing), and case management. Some examples include:
Community-based behavioral health treatment centers that offer case management, peer services, group therapy, and/or individualized services
Recovery community and outreach centers
Holistic interventions to address whole health, which involve multi-disciplinary teams in health care settings such as Federally Qualified Health Centers, connections to health homes, Assertive Community Treatment (ACT) teams and Forensic ACT teams, and Forensic Intensive Case Management
Supportive housing that offers affordable housing with wraparound services
In-patient or residential treatment or partial hospitalization
Community corrections centers operated by probation and/or parole agencies—an emerging model meant to couple community supervision with services and programs that help ensure people are sufficiently supported during their transition to the community
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