Commentary: Diversion is Good, but Yolo DA Should Start Looking Toward Declination

By David M. Greenwald

This week, DA Jeff Reisig belatedly announced—a year after his attack on Public Defender Tracie Olson—that he is changing his policy on diversions to no longer “automatically disqualify an individual from being referred to a diversion program based on their criminal history.”  His office estimates that will increase the number of diversions by 15 to 20 percent.

Public Defender Tracie Olson called it a welcome change.

But she also pointed out: “We still have an over-representation of Black men and women in our local jail. While the county is 3% Black, on May 3, 2021, 21.5% of our jail population was Black. We simply haven’t made much progress since I talked about this last June. However, I have reason to hope that this policy change is one of many more to come from the county’s criminal legal system.”

On Wednesday, I caught a screening of the film Racially Charged: America’s Misdemeanor Problem.  The film by Robert Greenwald (no relation) and based on Harvard Law Professor Alexandra Natapoff’s book on misdemeanors (see above to watch the film) focused on the impact of misdemeanors in the system.

One discussion that caught my attention was Professor Natapoff discussing a recent empirical study out of NYU.

The study, “Misdemeanor Prosecution” is by Amanda Agan, Jennifer Doleac, and Anna Harvey.  The professor pointed out that this was the first extensive empirical study of the public safety benefits of declination.

These are decisions by prosecutors to “leave the arrest as an arrest and not convert it into a full fledged criminal case.”

What the study showed, the professor said, was “higher declination rates led to lower criminal contact for the individuals who pass through the system. In other words, it promoted public safety, to refrain
from bringing down the hammer on even more than diversion program and I know we turned to diversion programs so often because they are more lenient.”

But the empirical research out of Suffolk County “has shown us that even the decision to leave the arrest as it is and not convert it into a case itself has benefits for those individuals, those families and those communities.”

“Law enforcement has historically pursued punitive policies directed at these ‘quality of life’ offenses in the belief that those policies enhance public safety,” explains New York University Professor Anna Harvey, director of NYU’s Public Safety Lab and a coauthor on the paper. “But we’re now starting to learn that such policies don’t always produce more public safety. This study indicates they may make us less safe.”

They found that defendants prosecuted for nonviolent misdemeanors had significantly higher risks of subsequent arrest and prosecution than those not prosecuted. These later arrests included arrests for violent and felony offenses.

“Surprisingly, prosecuting these nonviolent misdemeanor cases actually increased the likelihood of a later arrest, including later arrests for violent and felony offenses,” Harvey observes.

This is not insignificant.  Misdemeanor cases make up more than 80 percent of the cases processed by the U.S. criminal justice system, with more than 13 million Americans charged with such offenses each year.

What their research shows is that not filing cases at all when they are low level misdemeanors is actually better than even diversion.

That is why you are seeing, all over the country, progressive prosecutors releasing declination policies—a list of offenses that will simply not be charged.

In a policy released shortly after he took office, Los Angeles DA George Gascón noted “the consequences of a misdemeanor conviction are life-long and grave, even for those who avoid incarceration.

“Misdemeanor convictions create difficulties with employment, housing, education, government benefits, and immigration for non-citizens and citizens alike,” he said.  “Despite the immense social costs, studies show that prosecution of the offenses driving the bulk of misdemeanor cases have minimal, or even negative, long-term impacts on public safety.”

Among the charges on the list: trespass, disturbing the peace, driving without a valid or suspended license, criminal threats, drug possession or paraphernalia, minor in possession, drinking in public, public intoxication or under influence of controlled substance, loitering, and misdemeanor resisting arrest (without the use of force against the officer).

For most of these, they have exceptions built in when the offense is repeated or more serious than a simple offense.

Gascón said at the discussion on Wednesday that “we came out publicly and said, we are no longer going to prosecute most first-time misdemeanor offenses and we’re going to look for diversion opportunities.”

He noted that, with trespassing, “I think is just a gateway, a vehicle to arrest Black and Brown people.”

One result of this policy is “we (are) increasing our capacity to deal with more serious crimes.”

Gascón noted there has been a lot pushback around the concept of Broken Windows Theory.

“There is a belief amongst many people in our community and certainly many people in law enforcement, that attending to these issues through the criminal justice system is a good thing.  It will make you safer.”

However, he said, citing the study out of NY, “We know in recent research that has shown in studies that the contrary is truth.  Actually the people that get prosecuted for a misdemeanor are more likely to then be criminalized in (the future) and often actually create more (problems) for themselves and those around them.”

Instead, he said, “when we don’t prosecute these cases, actually we enhance public safety.”

He acknowledged that by going this route, “we’re pushing against a deeply held belief by many that actually this (prosecuting misdemeanors) is a pathway to law and order and security in our community.”

Further, he added, there is value “in educating the public and being able to walk people through not only the consequences of this process in terms of the systemic racism on the impact of that. But quite frankly, even for the fact that it doesn’t make them any safer to the contrary, I argue and I believe that there’s data to support this.”

One of my concerns with the Yolo DA’s policy is that it is being enacted on the back end.

His acknowledgement is limited,  He says the “new public data tool reveals racial disparity in cases sent to prosecutor’s office.”  Not that they have created disparate prosecution tools.  Not that by prosecuting these low level offenses to begin with—they are ensnaring people in the legal system, even when they ultimately do not result in jail time.

“Overall, the researchers found that nonviolent misdemeanor cases that were not prosecuted were clearly different from nonviolent misdemeanor cases that were. Nonviolent misdemeanor defendants who were not prosecuted were issued criminal complaints that included fewer counts, fewer misdemeanor counts, and fewer ‘serious’ misdemeanor counts,” the NYU research found.

More importantly, “Moreover, defendants who were not prosecuted were significantly less likely to receive a new criminal complaint, to be prosecuted, and to receive a new criminal record within two years post-arraignment, relative to defendants who were prosecuted. “

These results held even for those who ultimately were not incarcerated.

Opening more people to diversion is a good first step, but declining prosecution at all for these cases is actually the better course.

—David M. Greenwald reporting

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