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  • Alexandra Perona

Diversion in the time of COVID-19

Updated: Oct 20, 2023

The criminal justice system has various purposes, with incapacitation, otherwise referred to as incarceration, being the most common. However, courts around the country have begun taking a more holistic approach to dealing with criminal defendants, especially those who face mental health challenges and drug addiction. This shift in philosophy is best displayed through diversion programs like Mental Health Court and Drug Court. Seeking rehabilitative programs other than incarceration is key, especially with the COVID-19 pandemic.

The purpose behind diversion programs is to provide individuals with methods to “control their mental health” and have a stable, productive life outside of traditional incarceration methods. Understanding the surrounding circumstances leading to the alleged crime and tailoring a treatment program for an individual facing mental health or drug problems is critical to a criminal defendant’s potential for rehabilitation. Incarcerating individuals who are struggling neither helps them nor society. This is particularly concerning with the pandemic. While some inmates have started to receive the COVID-19 vaccine, it is dependent on whether inmates are incarcerated in a “federal prison, state prison, or county jail.” Those who struggle with mental illness may face worsen symptoms in prison and could contract COVID-19.

Furthermore, Prisons tend to “exacerbate mental illness,” which leads to additional incarceration time. Thus, criminal defendants who struggle with mental illness tend to be stuck in a vicious cycle. A 2010 study found that the “severely mentally ill” are three times as likely to be incarcerated rather than allowed to seek treatment. Mental health court seeks to divert cases so individuals can receive community-based mental health treatment and get connected to social services agencies. Additionally, diversion allows the prosecutor’s office to focus more on serious offenses, rather than non-violent crimes, and prevent further overcrowding of prison populations. Finally, victims may not want the offender to face jail time, but rather seek “restitution for expenses like medical bills or a statement of apology.”

Various jurisdictions around the country have mechanisms that help identify potential candidates, such as screening for a mental health disorder upon arrest. In one county in Pennsylvania, its Mental Health Court was created after a “rise in the number of people with mental health issues entered the court system.” Diversion programs are critical for defendants, as they can avoid incarceration and get probation so long as they complete the program requirements. Former public defender turned prosecutor, Julia Fogelberg, notes the long-term consequences and “trickle-effect” of a conviction, such as listing a felony conviction on a job or housing application. Melissa Braham, a young mother, was convicted of misdemeanor marijuana and paraphernalia possession. These seemingly minute charges resulted in a one-month jail sentence, a lost job, and her kid’s placement in foster care. All of this occurred because she was not provided with diversion court as an alternative.

Additionally, the pandemic has impacted court operations in a variety of ways. At the start of the pandemic, court administrators shifted diversion programs to remote and online meetings, rather than the typical face-to-face interactions. In Colorado, state funding for its diversion program caused prosecutors to redistribute funds to keep the program running. Despite this, the pandemic has caused prosecutors to become more open to diverting cases to “focus limited resources on violent crimes.” In Hays County, Texas, its Mental Health Court has been delayed in its launch and was “hoping to start its first docket in March or April 2020 until the pandemic hit.” In contrast, in Maryland, one benefit of the pandemic was the elimination of transportation and “reduction in missed time from work” because the docket and related proceedings are now conducted virtually.

It is unclear what the full impact the pandemic has had on diversion programs, given differences in various jurisdictions. However, providing community support and assistance is key rather than simply punishing individuals suffering with mental health disorders and drug addiction.


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