San Francisco Chronicle - (Sunday)
D.A.’s alternative focus for lower-level crimes
Boudin increasingly emphasizes diversion rather than imprisonment for some offenders
The San Francisco District Attorney’s Office under Chesa Boudin is resolving a significantly greater share of criminal cases via diversion programs.
Among the types of cases seeing the largest increase in diversion are driving under the influence, petty theft and misdemeanor assault and battery. Some of the diversion programs that have grown fastest include those for people facing mental health issues and drug addiction, according to a Chronicle analysis of data from the D.A.’s Office.
Diversion programs serve as alternatives to traditional responses to crime like extended time in jail or prison, in some cases allowing people to move forward without a conviction on their record. The increased focus on diverting people into such programs aligns with Boudin’s stated goal of reducing jail and prison populations and focusing on services and rehabilitation.
The District Attorney’s Office provided detailed data on a handful of the city’s diversion programs and courts, including demographics of diversion participants and number of people enrolled in certain programs. The data show that young Black and Hispanic men are the demographic groups most likely to be referred to diversion programs.
It’s likely that the increase in diversion rates is due more to diversion-friendly changes to statewide law than to Boudin’s policies specifically, according to criminal justice experts and Boudin himself. The use of diversion programs dates to the 1970s in San Francisco and has been on the rise since 2017, and the city has long been unusual in how many felony crimes it diverts.
The Chronicle examined data from the District Attorney’s Office available on San Francisco’s open data portal showing the number of cases that were resolved through diversion programs. According to this data, the share of resolved cases ending in “successful diversion,” meaning the person in
volved in the case completed a diversion program, has increased to about a third of all resolved cases in 2021, up from about 16% in 2019 and less than 8% in 2017.
While most criminal justice researchers agree that diversion programs for lower-level offenses are positive, some prosecutors, including former employees of the District Attorney’s Office, are less sold on the research showing diversion’s impact on people charged with felony crimes, particularly serious crimes like assaults.
“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,” Don Du Bain, a former prosecutor for Boudin’s predecessor George Gascón, previously told The Chronicle. “Robbery and felony assaults have not typically been diverted.”
In San Francisco, increased diversion rates can be seen across crime types, though lower-level misdemeanor offenses saw the largest increases. The diversion rate of cases involving DUI, petty theft and vandalism charges, for instance, increased most significantly from 2018-19 to 2020-21 — the two years before and after Boudin took office. Assault and battery, a category that tends to be charged as a misdemeanor offense and refers to a person using unwanted force on another but without serious injury (a punch or shove, for example), also saw its diversion rates soar in 2020 and 2021.
Boudin’s administration was not the first to increasingly turn to diversion programs as alternatives to traditional prosecution. Diversion was already beginning to increase under Gascón, going from 9% of all cases resolved in 2011 to 16% in 2019.
Because criminal cases can take years to resolve, especially when they are diverted, it’s possible many cases closed during Boudin’s tenure were originally referred to diversion programs under Gascón. But The Chronicle’s analysis also showed that diversion rates are up significantly for cases referred starting in 2020, when Boudin took office.
Diversion has also expanded in popularity nationwide. In a 2018 study of 11 major metropolitan counties, researchers noted that “a growing number of prosecutors have established pretrial diversion programs” in recent years.
In California, legislators passed several statewide laws that increased counties’ ability to rely on diversion programs in many cases, a factor that Boudin previously described to The Chronicle as having a major impact on his office’s conviction and diversion rates. Assembly Bill 3234, which took effect in 2021, made it possible for judges to seek alternatives to jail or prison time for first-time offenders charged with most misdemeanors. AB 991, which was enacted in 2018, made people experiencing certain mental disorders eligible for diversion, even if they faced felony charges.
The San Francisco District Attorney’s Office also created a primary caregiver diversion program in February 2020 in response to Senate Bill 394, which Gov. Gavin Newsom signed in October 2019 and required counties to create a program for parents who can show that they are the primary caregiver for a child. People charged with all misdemeanors are eligible, as well as some charged with felonies. Through supervision and programming, which can include parenting classes, participants can earn a dismissal of their case.
Alternatives to incarceration are important to keep people from avoidable interactions with the criminal court system, said Jason Williams, an associate professor of justice studies at Montclair State University in New Jersey.
“For some of these individuals, they may just need therapy,” Williams said. “And I don’t know that incarcerating them endless amounts of times is going to actually be therapy that they need.”
In all, San Francisco uses more than 20 diversion programs and courts that offer a range of supervision, from light to intensive, according to the D.A.’s Office. There’s a program for people on parole, for people who can’t afford court fines, and for people who struggle with mental illness that contributed to their crime. There’s even a program for graffiti artists to pay their penance by scrubbing off tags around town.
The programs are administered by the San Francisco Pretrial Diversion Project and the San Francisco Superior Court, as well as the nonprofit Community Works West. People typically end up in diversion programs through referrals by the San Francisco Public Defender’s Office or the District Attorney’s Office, with a judge’s approval.
A judge can also order someone to diversion over the wishes of a prosecutor and defense attorney.
“The district attorney is one piece of a much larger system,” said David Mauroff, CEO of the San Francisco Pretrial Diversion Project.
If a person fails to complete a diversion program, their case is sent back to traditional court and proceeds as normal.
Williams said that in his own research he has heard from people in the system that they would rather do their time behind bars because the requirements of some programs seem too daunting.
“The presumption is that it’s harder,” he said.
Johanna Lacoe, research director at the nonpartisan California Policy Lab and coauthor of a recent study on the impact of felony diversions in San Francisco, added that “participating in diversion isn’t easy. 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.”
Lacoe’s study, which examined the impact of diversion referral in San Francisco on people charged with felony crimes from 2009 to 2017, found that people sent through diversion programs were less likely to be re-arrested and convicted than people sent through the traditional court process. The effects were strongest for people charged with drug offenses and “offenses against a person” like assaults and robberies, along with women, young people and first-time offenders. The researchers found this positive impact on recidivism even after using a statistical model to account for the possibility that the kinds of people referred to diversion programs may be less likely to re-offend.
The impact of statewide changes is clear when looking at which types of diversion programs are seeing the biggest increases. The District Attorney’s Office shared data with The Chronicle via a public records request on seven of the city’s more than 20 diversion programs. Notably, the data excludes the high-volume Community Justice Center and several other popular programs because they could not provide complete, well-structured data in the office’s time frame.
Of the seven diversion programs in the data, more cases were resolved through Primary Caregiver Diversion, Drug Court, Pretrial Diversion and Mental Health Diversion in 2020-21 compared with 201819, while fewer were resolved through Behavioral Health Court, Young Adult Court and Neighborhood Court.
Based on the programs included in the data, the increase in diversion programs has primarily impacted Hispanic and Black men, who are most likely to be imprisoned relative to their share of the population at the state level.
Black and Hispanic people consistently make up over 50% of diversion cases each year in the data provided by the District Attorney’s Office, despite representing 21% of San Francisco’s population. Men consistently make up about 80% of diverted cases, according to the data.
The data also shows increasing use of the Pretrial Diversion program, which is the flagship program offered by the San Francisco Pretrial Diversion Project. In 2021, 318 people completed the Pretrial Diversion program — more than in any year during Gascón’s tenure, according to data from the District Attorney’s Office.
The program started in 1976 and is geared toward people facing misdemeanor charges, though some with felonies are found to be suitable.
Before someone enters any program at the nonprofit, staffers look over the person’s criminal history, any prior missed court hearings and other factors to help guide the person into the right programming with the necessary guidelines.
“We meet them where they are,” CEO Mauroff said. “We develop a plan that sets them up for success.”
People in the programs are assigned to a case manager and a treatment plan, which could include various types of counseling, employment requirements or myriad other conditions. Once the plan is complete, the case is dismissed.
The nonprofit says 97% of people finished the program in 2021 without picking up a new charge or being accused of violating their probation or parole.
San Francisco Deputy Public Defender Andrea Lindsay said the increased use of the Pretrial Diversion program could partly be symptomatic of COVID’s impact on the courts.
“Cases are moving through the court at an incredibly slow pace,” she said, “because the courts were shut down, and then were only partially open.”
Lindsay said she’s seen “all sides” pushing to find ways to reduce the court backlog.