Under Chesa Boudin, the San Francisco District Attorney’s Office resolved an increasing number of criminal cases through diversion programs, according to an analysis of data by the San Francisco Chronicle.
The analysis revealed that the most common types of cases accounting for the increase in diversions were petty theft, misdemeanor assault and battery, and driving under the influence. Overall, clearance rates for cases through diversion increased from eight percent in 2017 to over 30 percent in 2021. Diversion programs that focused on people with mental health and drug addictions grew the fastest.
“For some of these individuals, they may just need therapy. And I don’t know that incarcerating them endless amounts of times is going to actually be therapy that they need,” Jason Williams, an associate professor of justice studies at Montclair State University, told the Chronicle.
Recently enacted laws supporting diversion programs in California:
2021—Assembly Bill 3234
Allows judges to seek alternatives to jail or prison sentences for first-time offenders charged with most misdemeanors.
2019—Senate Bill 394 Requires counties to create diversion programs for primary caregivers of children charged with misdemeanors and some felonies.
2018—Assembly Bill 991
Allows diversion for people with certain mental disorders, even if facing felony charges.
Diversion programs, which serve as an alternative to incarceration, are expanding nationwide and have been used in San Francisco since the 1970s. They typically focus on misdemeanor charges but can include certain felony charges as well.
Boudin, who was recalled in a special election in June, faced accusations for being “light on crime,” and his use of diversion programs was part of the reason for that criticism.
Don Du Bain, a former San Francisco prosecutor, told the Chronicle that “Diversion has … historically, under both Kamala Harris and George Gascón, been reserved for lower-level-type felonies: Property crimes, drug possession crimes, that sort of thing. Robbery and felony assaults have not typically been diverted.”
However, diversions began increasing most rapidly in 2018, two years before Boudin took office, and the biggest increases under Boudin were for misdemeanors and lower-level felonies. According the Chronicle, “the city has long been unusual in how many felony crimes it diverts.”
Notably, other jurisdictions, such as Seattle’s King County, have had success with community-supported felony-level diversion programs, as reported by SQNews.
San Francisco has over 20 diversion programs, including pre-trial, drug, mental health, youth, neighborhood, and behavioral health diversion programs. In 2019, under a new state law, a primary caregiver diversion program was created specifically for parents who are the documented, primary caregiver of a child.
It’s likely the main reasons for the increased diversion rates are a slate of new, diversion-friendly state laws, as well as a COVID-created backlog of court cases needing clearance, according to both Boudin and criminal justice experts.
People can be referred to diversion by the DA’s Office or the Public Defender’s Office, with approval by a judge. Judges can also order someone to diversion without a referral.
David Mauroff, CEO of the non-profit San Francisco Pretrial Diversion Project, said “The district attorney is one piece of a much larger system.”
Participants in diversion programs are assigned a case manager and a tailored treatment plan. Once the treatment plan is completed, their case is dismissed. In the event someone fails to complete the program successfully, their case returns to court, which can result in their incarceration.
“Participating in diversion isn’t easy,” said Johanna Lacoe of the nonpartisan California Policy Lab and co-author of a study on felony diversion in San Francisco. “It often takes a long time, [and] it can be very intensive. It’s not a free ride through the criminal justice system, which I think gets misinterpreted.”
Williams agreed, noting his research showed that some people would rather do their time locked up because diversion program requirements can seem too daunting.
Lacoe’s study found reduced recidivism rates for diversion program participants compared to traditional court, even when accounting for the potential lower risk levels associated with people that qualify for such programs.
“We meet them were they are. We develop a plan that sets them up for success,” said Mauroff, whose San Francisco Pretrial Diversion Project had a 97% completion rate in 2021.
