Abstract
Prosecutors’ offices are a critical site for criminal legal reform and decarceration efforts. Prosecutor-led diversion programs (PLDPs) are a prosecutorial innovation that process cases away from punitive prosecution and, instead, offer various services and supports. Successfully completing a PLDP results in the dismissal of the charge, which helps participants to avoid formal entry into the criminal legal system and a range of collateral consequences. This paper reports findings from over 11,000 participants in six PLDPs in three Midwestern jurisdictions, and examines race/ethnicity and charge characteristics associated with successful program completion and case dismissal. Findings indicate that PLDPs have the capacity to provide alternative processing to a large volume of defendants with high completion rates, although the likelihood of racial/ethnic minorities to successfully complete the program is mixed. PLDPs are discussed as a promising policy and programmatic innovation that can help to move away from an era of mass incarceration.
Introduction
The United States incarcerates a greater number and proportion of its population than any other country in the world (Wagner & Sawyer, 2018). At year-end 2020, over 5.5 million people were supervised by the U.S. adult criminal legal system and of those, approximately 1.7 million were incarcerated (Kluckow & Zeng, 2022). Previous estimates indicate that people charged with nonviolent offenses make up over 60% of the prison and jail population, while drug charges account for approximately 25% of all incarcerated persons (Schmitt et al., 2010). Meanwhile, the system of mass incarceration costs local, state, and federal governments and the families of incarcerated people over $180 billion annually (Wagner & Rabuy, 2017).
An overly punitive approach to prosecution is increasingly recognized as a driving force in mass incarceration. In recent years, the notion of “progressive prosecutors” has gained traction, in recognition that prosecutors have significant power to repair much of the damage that has been perpetuated on people involved in the criminal legal system. At the same time, prosecutors are tasked with responding to a variety of urgent issues that impact public safety, most notably gun violence and other forms of violence. However, jurisdictions throughout the country grapple with an overwhelming number of low-priority or nonviolent misdemeanor and felony cases that overburden local court systems (Labriola et al., 2018; Rempel et al., 2018). As a result, some prosecutors have embraced a re-envisioning of their role within the criminal legal system and are rethinking the meaning of a successful prosecutorial outcome.
Coupled with the growing national interest to reduce the overuse of mass incarceration and also minimize the impact of the collateral consequences associated with a criminal conviction, a growing number of prosecutors are turning to pretrial diversion programming to divert select types of cases away from the court system. While the traditional role of a prosecutor is to prosecute those charged with engaging in criminalized behaviors, some jurisdictions have implemented prosecutor-led diversion programs (PLDPs) in recent years. PLDPs are defined as a type of front-end diversion program specially designed to redirect eligible defendants away from traditional court proceedings and into community-based programming. Upon completion of PLDP requirements, a defendant’s case is dismissed, thus terminating the criminal legal process for that particular case and avoiding future collateral consequences (Orwat et al., 2019; Rempel et al., 2018). However, little is known about these emerging PLDPs, especially their potential to substantially and safely reduce the numbers of individuals cycling through the criminal legal system via jails and prisons.
This study entails an examination of six PLDPs across three large Midwestern U.S. prosecutors’ offices. The first purpose of the study is to examine the volume, demographic, and charge characteristics of PLDP participants—in other words, who is gaining access to these programs and what is their programmatic capacity? Next, we examine the critically important client outcome of case dismissal and assess to what extent PLDP completion and case dismissal is predicted by participant demographics and charge characteristics. We discuss the implications of these findings in the context of developing decarceration policies and practices, and the potential role of prosecutors’ offices in this endeavor.
Moving From Mass Incarceration to Decarceration
The United States is the world’s leading jailer, incarcerating a greater number and proportion of its population than any other country (Alexander, 2012). Beginning in the early 1970s, over a period of nearly four decades, the incarcerated population grew sevenfold, reaching its peak in 2008. In that year, over 2.3 million adults were incarcerated in U.S. jails and prisons on any given day (Travis et al., 2014). While this number is historically unprecedented, it does not fully capture the totality of incarceration. Taking into consideration that more than 11.5 million individuals are detained in local jails each year, an estimated 13 million adults, which equates to one in 20, experience incarceration annually in the United States (Epperson & Pettus-Davis, 2017; Minton & Zeng, 2015).
The gross inequities in the use of incarceration make the phenomenon of mass incarceration all the more troubling; incarceration disproportionately affects people of color, people living in poverty, and people with mental health and substance use disorders (National Center on Addiction and Substance Abuse, Columbia University, 2010; Wheelock & Uggen, 2006). Incarceration’s racial disparities, in particular, have been clearly linked to unequally punitive treatment by the criminal legal system. African Americans are arrested at double the rate of the national average and, when arrested and convicted, African Americans face more severe charges and receive longer sentences than white defendants with similar characteristics (Mauer, 2011; Snyder, 2012). It is therefore concerning, but not surprising, that African Americans make up about 13% of the U.S. population, but represent 40% of the incarcerated population (Pew Center on the States, 2008).
Initially fueled by punitive and severe sentencing policy changes in the 1970s, the dramatic rise in incarceration continued into the 21st century despite a steady and significant reduction in crime rates that began in the early 1990s. Though, at the time, many supported the notion that increased incarceration was the cause of decreased crime, research demonstrates that mass incarceration in the United States surpassed a point of diminishing returns nearly two decades before the incarceration rate began to level off (Gainsborough & Mauer, 2000; King et al., 2005; Travis et al., 2014). Criminologists Clear and Frost (2015) attribute the persistent and ineffective use of incarceration to a deliberately punitive policy agenda developed in response to shared public and political concerns regarding rising social problems. However, these criminologists, along with scholars from fields such as social work and public health, have noted a confluence of changing fiscal, political, and social factors that mark a potential opportunity to reduce the use of incarceration (Drucker, 2018; Pettus-Davis & Epperson, 2015).
Decarceration, or the substantial reduction of the use of incarceration, is a concept that has gained considerable traction over the past decade. Fueled by a growing response to the multilayered and catastrophic consequences of mass incarceration, contemporary calls for decarceration are emerging from a diverse and somewhat unlikely group of advocates, people and communities directly impacted by mass incarceration, and political leaders from both conservative and liberal/progressive perspectives (Epperson & Pettus-Davis, 2017). For example, The American Academy of Social Work and Social Welfare has selected “Promote Smart Decarceration” as one of the grand challenges for the social work profession over the next decade (Pettus-Davis & Epperson, 2015). Passage of the First Step Act by the U.S. Congress in 2018 represents a bi-partisan, albeit limited, effort to curtail the use of incarceration at the federal level, and many states and localities are actively engaged in proactive efforts to reduce jail and prison populations (Schrantz et al., 2018; Subramanian et al., 2015).
Given the current social, economic, and political climate, the possibilities for decarceration are encouraging. However, some have noted that decarceration approaches must be mindful of inequities in mass incarceration—namely, race and behavioral health disparities—and intentional efforts must be made to promote policies and practices that reverse these disparities (Pettus-Davis & Epperson, 2015). Austin et al. (2016) highlight another approach to addressing inequities—that justice reinvestment initiatives must be reconfigured to direct the money saved from decarceration toward supporting communities most affected by incarceration rather than further growing the criminal legal system. It is also important to note that comprehensive decarceration efforts will require substantial reform across the criminal legal spectrum, from law enforcement through the court system, and including jails and prisons as well as postincarceration community supervision. Across that criminal legal continuum, perhaps no setting is more critical to decarceration than prosecutors’ offices.
Diversion as an Approach to Decarceration
Over the past 20 years, a range of criminal legal diversion programs has been developed, many of which focus on particular types of cases or service needs. To better meet the needs of those with behavioral health disorders, Crisis Intervention Teams and Law Enforcement Assisted Diversion programs have been developed and implemented in numerous communities throughout the country to shift the role of police officers from primary emergency responders to secondary responders during active mental health crises (Compton et al., 2006). Elsewhere along the criminal legal continuum, problem-solving courts, such as drug treatment courts and mental health courts, were established to better connect those defendants presenting before the court with behavioral health disorders to community-based treatment programs and other needed wraparound supports (Epperson et al., 2014). While recent estimates indicate there are currently over 3,000 drug courts and 350 mental health courts throughout the United States, criminal legal agencies continue to struggle with managing the complex service needs of individuals who enter the system (Lowder et al., 2018). It is important to note that problem-solving courts are not a one-size-fits-all approach for all defendants. Stringent program requirements are not uncommon, and these requirements must be completed successfully before individuals can graduate and end their legal system involvement. However, a recent systematic review evaluating the effectiveness of mental health courts found some evidence to support the effectiveness of mental health courts in reducing recidivism rates (Loong et al., 2019). Although these diversion programs represent innovative strategies at the law enforcement and court level, less attention has been paid to how prosecutors engage in and implement diversion programming. Furthermore, existing diversion programs are often specialized and not sufficient to substantially decarcerate the large volume of individuals entering the criminal legal system. Expanding these types of front-end diversion opportunities is likely to have a greater impact on decarceration than back-end solutions (Garland et al., 2014).
The Importance of Prosecutors in Decarceration
Prosecutors’ offices are a critical site for decarceration, as they have a significant influence on whether and how individuals are processed through the criminal legal system. First, prosecutors serve a gatekeeping function, deciding whether, which and how many criminal charges to file, and the person(s) on whom charges will be filed. Next, prosecutors in the United States are tasked with investigating a case, either independently or in conjunction with law enforcement entities. During the course of an investigation, prosecutors make decisions about whether to offer a plea agreement with a defendant, or whether to take a case to trial. In most jurisdictions, well over 90% of criminal cases are decided by plea agreement, pointing to the tremendous discretionary power of prosecutors to impact the resolution of cases (Devers, 2011). If a case does go to trial, the prosecutor serves in court as a representative of the State to present a case of the defendant’s guilt and responsibility. If a defendant pleads guilty or is convicted, the prosecutor advocates for and recommends a sentence within any existing guidelines. In short, prosecutors have significant and powerful roles in nearly every phase of a person’s adjudication and criminal legal involvement (Worrall & Nugent-Borakove, 2008).
Despite their critically important role in the criminal legal system, prosecutors have not often been the focus of research nor of criminal legal reform efforts. However, in an emerging era of decarceration, prosecutors are beginning to gain attention on scholarly, social, and political fronts. Legal scholars such as Angela J. Davis have outlined the instrumental role that prosecutors play in mass incarceration, and the imperative for prosecutors to be central figures in reversing mass incarceration (Davis, 2007, 2018). In recent years, a growing number of lead prosecutors have campaigned on a platform that moves beyond “tough on crime” and “law and order” rhetoric to an agenda that includes addressing racial disparities and reducing the unnecessary use of incarceration. This “progressive prosecution” approach is gaining traction in multiple large and small jurisdictions across the country, including the sites for the current study (Davis, 2019; Marans, 2018; Toobin, 2015). As the movement toward progressive prosecution and decarceration grows, prosecutors are reexamining long-standing practices, and some offices are developing and implementing programs that aim to lessen punitive prosecution and, instead, develop more responsive and alternative approaches. A primary example of this approach is PLDPs.
Prosecutor-Led Diversion Programs
PLDPs, also known as deferred prosecution agreements, were first developed in the 1930s for juveniles and began to make their way into the adult criminal legal system during the 1970s (Balch, 1974; Garrett, 2014). PLDPs are an innovative “front-end” criminal legal intervention and local policy innovation that provides an opportunity for early exit from traditional judicially driven models and, instead, connects people with supports and services to help them desist from criminalized behaviors and positively engage in their communities and society. PLDPs divert people charged with certain, typically nonviolent, criminal offenses away from traditional court processing if they agree to participate in program requirements in return for dismissal of their charge(s) (Rempel et al., 2018). Many PLDPs were developed to provide eligible defendants with a second chance which, upon successful completion, allows the defendant to avoid the potentially damaging effects and collateral consequences of a criminal conviction (Albonetti & Hepburn, 1996; Colgate-Love, 2009; National Association of Pretrial Services Agencies, 2010; Orwat et al., 2019). PLDPs also help to reduce the volume and cost of cases handled by overburdened court systems, enabling prosecutorial and judicial efforts to focus on those cases deemed most significant to public safety concerns.
Although PLDPs have been in existence for some time, in recent years, these programs have gained more interest as local criminal legal systems work to identify additional ways of providing meaningful services while limiting unnecessarily punitive approaches. Presently, PLDPs are statutorily authorized in only a handful of states, and programs are often reserved for first-time nonviolent offenses. Commonalities among many PLDPs include only admitting those defendants without a prior felony conviction and requiring participants to complete educational programming, abstain from criminal activity, and pay fees for treatment, court costs, and an attorney to negotiate their diversion case. Defendants enter PLDPs either prior to the charge being filed with the court (precharge) or after the charge has been filed with the court (postcharge). In addition, postcharge PLDPs have varying plea requirements; in some PLDPs, if a defendant is accepted into the PLDP, they are not required to enter a plea (preplea). In other jurisdictions, defendants must plead guilty (postplea) and their sentence is deferred while they work to complete PLDP requirements. In either scenario, once a defendant has successfully met the program’s requirements, the originating charge is dismissed (Rempel et al., 2018).
The increasing implementation of PLDPs throughout the United States has provided an expanded programmatic opportunity via local policy change for thousands of individuals to avoid deeper involvement in the criminal legal system. There are several perceived benefits of participation in PLDPs. PLDPs provide a more responsive intervention for individuals who may not need intensive criminal legal supervision, connect defendants with services, and also help defendants to avoid the collateral consequences of a criminal conviction. More recently, some jurisdictions have expanded the reach of their PLDPs to people with repeat offenses and to handle a broader array of charges, including felony offenses. Thus, innovative prosecutorial diversion programs are increasingly being recognized as a critical component of an overall criminal legal reform and decarceration strategy (Chisholm & Altenburg, 2017; Davis, 2016; Pfaff, 2017).
Despite the increased use of PLDPs, there remains limited published research on the effectiveness of PLDPs in preventing entry into the criminal legal system as well as further justice system involvement among program participants. Only a handful of outcome studies have been conducted on adult PLDPs, demonstrating a range of completion rates between 50% and 95% (Boggess & McGregor, 2013; Kixmiller, 1998). However, existing evidence is promising and highlights the need for more rigorous evaluations. For example, research on a prostitution diversion program showed that only 14.5% of participants were rearrested for prostitution within a 12-month follow-up period (Roe-Sepowitz et al., 2011). In an early study of a misdemeanant pretrial diversion program, 9% of those who completed the program were subsequently arrested, compared to 39% of individuals who failed to complete the program altogether (Kixmiller, 1998). However, in a study of a PLDP for people charged with driving while intoxicated, there was little to no reduction of postdeferral alcohol-related traffic violations for program participants (Salzberg & Klingberg, 1983).
A more recent mixed-methods, quasi-experimental evaluation of a 12-month PLDP for first-time nonviolent felony offenses found no statistically significant difference in rearrest rates between PLDP participants and a comparison group of individuals whose cases went through traditional court case processing procedures (Cossyleon et al., 2017). The authors conclude that while successful completion of a PLDP may not significantly reduce the chances of rearrest, successful PLDP completion does significantly reduce the future collateral consequences associated with a criminal conviction (Cossyleon et al., 2017; George et al., 2015; Orwat et al., 2019). The National Institute of Justice recently funded an examination of PLDPs in 11 jurisdictions across the country (Rempel et al., 2018). As part of this study, five well-established, high-volume PLDPs were strategically selected for a quasi-experimental impact evaluation. Among those defendants who participated in these PLDPs, the successful completion was found to reduce the use of a jail sentence and increase the likelihood of a case dismissal for the current offense. However, the findings for recidivism were less conclusive. Four of the programs demonstrated lower rearrest rates than their comparison groups, while one of the five programs actually yielded higher rearrest rates, and another program demonstrated higher use of jail time for its PLDP participants (Rempel et al., 2018).
Although promising but somewhat mixed, existing research on PLDPs point to the importance of successful PLDP completion as a key indicator of future outcomes such as reduced recidivism. In addition, little attention has been paid to the immediate outcome of successful PLDP completion: having one’s criminal case dismissed. For many, particularly those with no prior criminal charges, case dismissal removes the collateral consequences that come with a criminal conviction, such as restrictions from work, housing, and employment opportunities (Pettus-Davis et al., 2017). Although existing research has utilized various sampling techniques to examine the effectiveness of PLDPs on recidivism, little is known about the characteristics of individuals who successfully complete PLDPs and therefore experience the benefits of case dismissal. In particular, no research has examined, on a large scale, whether one’s race or ethnicity is related to successful PLDP completion, and whether individuals charged with certain offenses are more or less likely to have their case dismissed. Decarceration-focused innovations such as PLDPs will be most effective if they also address racial disparities, which requires further exploration into participant-specific characteristics.
Current Study
The current study closely examines the volume, participant and charge characteristics, and completion rates of a near-complete population of individuals who participated in six PLDPs across three jurisdictions. Our analyses are strategically focused on completion rates across programs as successful completion results in the important outcome of charge dismissal and also is predictive of future reduced recidivism. Specifically, the current study consists of two primary research questions: (a) What is the volume of cases at each program, demographic characteristics of participants, charge types for each program, and completion/case dismissal rates? and (b) What race, demographic and charge characteristics are related to program completion and case dismissal? Answering these questions will help to provide foundational information about early adopters of PLDPs which can inform further program development and policy innovation, as PLDPs are still in the early stages of development.
Methods
This study entails an analysis of administrative data from six PLDPs at three different urban sites in the Midwestern United States between 2010 and 2018, with varying years of available data for each of the six programs. These three sites represent a mix of established programs and recently implemented programs. Some programs’ inclusion/exclusion criteria were specific to either a felony or a misdemeanor offense, while programs at one site were designed to accept both types of offenses. The overarching stated goal of each of the PLDPs is to provide individuals with the opportunity to accept responsibility for their actions, engage with needed behavioral health treatment and social service programs, desist from criminalized behavior, and positively engage with their communities. Across all sites, if a defendant declines to participate in a PLDP when offered to them, their case will be traditionally prosecuted; these individuals who declined to participate in the PLDP were not included in the analysis.
Study Sites and Programs
Study Site A—District Attorney’s Office
Study Site A is frequently cited as being one of the first among the emerging “progressive prosecutors” offices in the country that utilize research and evidence to inform nontraditional prosecutorial innovations. Unique from most other PLDPs throughout the country, Study Site A has implemented a universal, risk-informed screening protocol to determine program placement. This District Attorney’s Office uses the validated Level of Service Inventory-Revised (LSI-R) criminogenic risk assessment tool (Andrews & Bonta, 1995), to route low-risk scoring defendants to its brief, precharge, preplea Diversion program and medium-risk scoring defendants to its more intensive, postcharge, postplea Deferred Prosecution Agreement (DPA) program. The Diversion program is generally 6 months in length, and minimal program requirements typically include community service, incurring no new arrests, and restitution payments. This program is unique in that it is precharge, meaning that the individual is not formally charged with a criminal offense; if the defendant successfully completes the Diversion program, their charge is never filed. The DPA is meant for defendants scoring at moderate-to-high risk who must enter a plea of “guilty” to be accepted into the program. DPA lasts from 6 to 12 months, and programming includes one or more of the following: cognitive behavioral therapy (CBT), mental health treatment, anger management, parenting classes, community service, and/or restorative justice.
Study Site B—State’s Attorney’s Office
The State’s Attorney’s Office, which operates in a large urban center, is one of the largest prosecutorial offices in the nation, handling about 250,000 cases per year, including more than 150,000 misdemeanor cases (Labriola et al., 2018). While Study Site B operates numerous PLDPs, in this study, we focused on two programs that were most consistent with the PLDPs at our other study sites. Launched in early 2011, the 12-month Felony Deferred Prosecution Program (Felony DPP) requires regular court appearances, an assessment, monthly meetings with a pretrial services officer, restitution payments if applicable, and no additional offenses while enrolled in the program. Upon successful completion of the program, the felony charge is then dismissed by the State’s Attorney’s Office, and the participant can follow the necessary steps to expunge the arrest record (George et al., 2015). To be eligible for the misdemeanor DPP, defendants must be charged with a nonviolent misdemeanor offense, not have any violent convictions within the previous 10 years, have no felony convictions, and not have any other pending cases. Defendants who are accepted into this light-touch PLDP are required to complete a two-part brief assessment at a community-based social services agency and not be arrested for a new charge during a 90-day period.
Study Site C—Circuit Attorney’s Office
The Study Site C Circuit Attorney’s Office is the most recent adopter of PLDPs in this study, launching its first PLDP in 2015. The two PLDPs examined in Study Site C were the felony redirect program (FRP) and the misdemeanor redirect program (MRP), both of which are postcharge, postplea programs. Defendants will not be considered for either program if they have any history of violent criminal activity or gang affiliation, current signs of drug dependence (in which case they may be referred to drug court), or prior participation in a diversion program. Felony redirect is a 12-month program, during which the defendant must regularly appear before a judge and complete assigned programming and tasks, including behavior modification classes, vocational/educational training such as GED linkage and job application preparation, and/or community service. In addition, felony redirect utilizes a rewards/sanctions approach based on participants’ performance in the program, including credits toward court fees, forgiveness of community service or additional community service requirements, early release from the program, and increased/decreased drug testing and/or reporting requirements. Misdemeanor redirect is a 6-month program that may involve community service, employment/education assistance, anger management classes, and/or parenting classes, and participants must regularly appear for progress checks and pay any restitution costs. Upon completion of either program, the defendant’s case is dismissed, and it becomes confidential and only accessible to law enforcement.
Data
A dataset was compiled for each of the six PLDPs, utilizing administrative data collected by prosecutors’ offices and program staff as part of regular PLDP operations. Our approach to building these datasets was to allow for the maximum units of observation to be included in the analyses. For each program, we obtained the earliest available data up to the most recent complete data at the time of data extraction; those individuals that were still participating in a program at the time of data extraction were not included in these analyses. In total, we analyzed data from 11,215 PLDP participants across the six programs; the programs range in size from under 100 participants to more than 4,000 participants (see Table 1). Individuals with missing data elements were not included in the analyses. For all but one program, these data represent over 95% of the participants in the years examined. However, for the Study Site B misdemeanor DPP, demographic data were not collected for 32% of participants in the programs early years of operation. As a result, our analyses for this program represent 68% of participants in the years examined.
PLDP Program Characteristics and Participant Demographics (N = 11,215).
Note. DPA = deferred prosecution agreement; DPP = deferred prosecution program; FRP = felony redirect program; MRP = misdemeanor redirect program; PLDP = prosecutor-led diversion programs.
The final datasets included the following variables for each program: PLDP start date; current criminal offense (name of charge; felony/misdemeanor); PLDP completion status (successful/unsuccessful); completion date (for those who successfully completed the PLDP); and demographic information, including age, gender, and race/ethnicity. The three study sites differed in how eligible PLDP offenses were named. To make the analyses of offenses consistent across sites, individual offense types were reviewed according to local laws in each of the three jurisdictions examined in the current study. Offense types from each site were then organized into larger categories using the Federal Bureau of Investigation’s Uniform Crime Reporting Part I and Part II offenses list (FBI, 2012) as a general guide for categorizing offenses across sites. As a result of this process, nine charge categories were identified and used across all three sites: (a) Narcotics/Substances (e.g., possession of a controlled substance, possession of alcohol by a minor); (b) Crimes Against Property (e.g., theft, burglary); (c) Motor Vehicle Offenses (e.g., leaving scene of a motor vehicle accident, reckless driving); (d) Battery/Assault (e.g., domestic battery, reckless conduct); (e) Disorderly Conduct (e.g., crimes against public peace, order, and other interests); (f) Sex Offenses (e.g., prostitution, public indecency); (g) Offenses Involving Children (e.g., child endangerment, neglect); (h) Obstructing Justice (e.g., resisting arrest, obstructing identification); and (i) Other (e.g., tampering with evidence, animal abuse).
Data Analysis
Analyses were first conducted separately for each of the six PLDPs. Descriptive statistics were generated to examine PLDP completion type, demographic characteristics, and charge types across the six programs, using SPSS 25.0. We then executed a series of binary multivariate logistic regressions, one for each of the six PLDPs in the study. The outcome variable was defined as completion status, with 1 indicating that an individual successfully completed the program, and 0 indicating that they were unsuccessfully terminated from the program. Each analysis included race/ethnicity, age, gender, and offense type as the predictor variables. For the offense type variable, “crimes against property” was selected as the reference category because it was a highly prevalent offense across all six programs. In addition, because the Study Site A programs were the only two programs to contain a mixture of felony and misdemeanor charges, an additional predictor variable, an indicator for felony offense, was also included for these program-specific analyses, with 1 indicating that an individual committed a felony offense, and 0 indicating that they committed a misdemeanor offense. The log odds point estimates were converted into odds ratios. These odds ratios, their 95% confidence intervals, and the level of significance are presented.
Given the clustered nature of these data (i.e., individuals nested within PLDPs), we next executed a multilevel logistic regression model to examine the association between person-level characteristics and completion/case dismissal status across all six programs, also accounting for variation across PLDPs that may affect completion status. We fit a mixed-effects binomial logistic regression model with a random intercept at the program level, using the “melogit” command in Stata 17 (Hedeker & Gibbons, 2006; StataCorp, 2021). A likelihood-ratio test was performed comparing the multilevel model with the one-level binomial regression model, and the “estat icc” postestimation function was used to estimate intraclass correlations. The resulting intraclass correlation coefficient (ICC) allows us to understand how much of the overall variation in completion/case dismissal outcomes is attributable to program-level (i.e., level two) features.
Results
Table 1 describes the participant demographics of the six PLDPs that were examined as part of this study, and the years for which data were available on each program. Four of the programs have enrolled large numbers of participants, with the Study Site B MDPP holding the largest number of participants (6,215 in the full sample; 4,241 in the analytic sample), which equates to an average of over 1,000 participants per year. The two programs at Study Site C site yielded considerably smaller numbers of participants, which could be the result of several factors. First, Study Site C has the smallest population of the three sites. In addition, the felony redirect and misdemeanor redirect programs are the newest of the six programs, and during the period of study, they were still in the pilot phase and not fully implemented across the jurisdiction.
PLDP participant demographic characteristics are somewhat similar across the six programs. While over half of the participants of every program are male, females comprise between 32% and 47% of PLDP participants, considerably higher than the proportion of women across the criminal legal system nationally, which is approximately 19% (Kaeble & Cowhig, 2018). In all but one program, people of color make up the majority of program participants, and African Americans are the largest race/ethnicity group overall. While the Study Site B programs have substantial numbers of Hispanic participants—20.7% for felony DPP and 18% for misdemeanor DPP—there are relatively few Hispanic participants in the Study Site A PLDPs (4.1% in DPA and 6.4% in Diversion), and no Hispanic participants identified in Study Site C’s programs. This could be partially explained by the smaller Hispanic population in the city of Study Site C (about 4%) (U.S. Census Bureau, 2018). The mean age for PLDP participants is remarkably similar across programs, from 27 to 30 years.
Table 2 details the charges for which participants entered the six PLDPs. The Study Site B and Study Site C programs are designated as either felony or misdemeanor programs, which results in all program participants being in one or the other charge category. Although misdemeanors make up the majority of charges in both Study Site A programs, which base eligibility on risk assessment scores, there is a substantial number of felony charges in both DPA (nearly 37%) and Diversion (42%) programs. Crimes against property and narcotics/substances charges are the most common charge categories across all of the programs. Other categories of charges, such as offenses involving children, disorderly conduct, and battery/assault are rarer, with a few exceptions. Offenses classified in the disorderly conduct category were somewhat more prevalent in the Study Site A DPA (8.2%) and the Study Site C felony redirect (9.1%), and 10.5% of Study Site B FDPP entering charges are classified as a sex offense (e.g., engaging in or soliciting prostitution). In total, the six PLDPs accept participants with a considerable range of both felony and misdemeanor charges
PLDP Program Completion Status and Offense Categories (N = 11,215).
Note. DPA = deferred prosecution agreement; DPP = deferred prosecution program; FRP = felony redirect program; MRP = misdemeanor redirect program; PLDP = prosecutor-led diversion programs.
The majority of PLDP participants across all six programs completed the program successfully, with the lowest completion rate of 68.5% at Study Site A DPA and the highest completion rate at nearly 90% for Study Site C MRP (see Table 2). Looking at site-specific comparisons, more intensive programs with longer duration—the higher-risk Study Site A DPA, and felony programs in Study Site B and Study Site C—yielded relatively lower completion rates, whereas the less intensive and shorter programs demonstrated completion rates over 80%. For those that completed each program, the average length of time to completion ranged from 3 months (Study Site B MDPP) to about 14 months (Study Site A Diversion). These completion times are often shaped by programmatic expectations. For example, Study Site B MDPP is described as a “light-touch” program, with the expectation that program requirements can be completed within a 3-month timeline.
Table 3 presents program-specific multivariate analyses with demographic and charge category variables as predictors of PLDP completion/case dismissal. In most cases, people of color were less likely to successfully complete the program compared to White participants. In the Study Site A Diversion program, and in both Study Site B programs, African American participants were 45%–64% less likely to complete the program, and in the misdemeanor DPP, Hispanic participants were 37% less likely to successfully complete, compared to their White counterparts. One exception to this trend is found in the Study Site A DPA, where African Americans were roughly 28% more likely to successfully complete the program compared to Whites. Female participants were more likely than males to successfully complete Study Site B Felony DPP (odds ratio (OR) = 1.66, 95% confidence interval (CI) = 1.34-2.05) and misdemeanor DPP (OR = 1.54, 95% CI = 1.28-1.85). And while not statistically significant in every program, older age was consistently associated with a greater likelihood of successful PLDP completion.
Program-Specific Logistic Regression Results: Successful PLDP Completion/Case Dismissal on Participant Demographics and Characteristics (ORs and 95% CIs).
Note. CI = confidence interval; DPA = deferred prosecution agreement; DPP = deferred prosecution program; FRP = felony redirect program; MRP = misdemeanor redirect program; OR = odds ratio; PLDP = prosecutor-led diversion programs.
p < .05. **p < .01.
Most programs did not display significantly different odds of successful completion by charge category, with the exception of the two Study Site A programs. In both DPA and Diversion, individuals with a narcotics or substance charge had over twice the odds of successful completion, compared to individuals charged with property crimes. Individuals charged with battery or assault also bore higher odds of successful completion in DPA (OR = 2.07, 95% CI = 1.34-3.19) and Diversion (OR = 8.08, 95% CI = 2.44-26.68). Other DPA charges associated with higher successful completion were disorderly conduct (OR = 3.81, 95% CI = 2.58-5.64) and offenses involving children (OR = 6.32, 95% CI = 3.21-12.44), and Study Site A Diversion charges included sex offenses (OR = 3.44, 95% CI = 1.76-6.74) and obstructing justice (OR = 2.78, 95% CI = 1.01-7.72). Within Study Site B programs, charge categories were not strong predictors of successful PLDP completion, with the exception of motor vehicle offenses in FDPP (OR = .34, 95% CI = .20-.57) and offenses involving children in MDPP (OR = .14, 95% CI = .03-.57).
Study Site A programs were the only PLDPs to include both felony and misdemeanor charges, and program-specific analyses of the Study Site A programs found that individuals charged with felonies fared quite differently in completion status within the two programs. For example, participants in the DPA program charged with felonies were about 43% less likely to complete the PLDP compared to DPA participants charged with misdemeanors (OR = .57, 95% CI = .47-.68). Conversely, participants charged with felonies in the lower-risk diversion program displayed more than five times the odds of successful completion than participants charged with misdemeanors in the same program (OR = 5.38, 95% CI = 3.57-8.10).
Table 4 presents the multilevel regression analyses for participants across all six PLDPs with demographic and charge category variables as predictors of PLDP completion/case dismissal. In these analyses, results were mixed on whether people of color were more or less likely to successfully complete PLDPs compared to white participants. Specifically, compared to white participants, African American participants were 19% less likely to complete the PLDP (p < .01), whereas Hispanic participants were 29% more likely to complete the PLDP (p < .01). PLDP completion among female participants were 44% greater compared to males (p < .01), and older participants had higher PLDP completion rates versus younger participants, with each additional year resulting in a 2% increased likelihood of completion.
Multilevel Logistic Regression Results: Successful PLDP Completion/Case Dismissal on Participant Demographics and Characteristics (ORs and 95% CIs; N = 11,215).
Note. CI = confidence interval; OR = odds ratio; PLDP = prosecutor-led diversion programs.
p < .05. **p < .01.
Most charge categories were not significantly associated with program completion/case dismissal in the multilevel model. However, compared to individuals charged with crimes against property (reference category) individuals charged with battery/assault (OR = 1.54, 95% CI = 1.22-1.94) and disorderly conduct (OR = 1.39, 95% CI = 1.05-1.83) were more likely to complete the PLDP. PLDP participants charged with a felony offense were significantly less likely to complete the program compared to participants charged with a misdemeanor (OR = .74, 95% CI = .67-.81). Our multilevel analyses yielded an intraclass correlation (ICC) of .062 (95% CI = .0083-.3457), indicating that 6.2% of the variation in completion/case dismissal status was attributable to specific program features across the six PLDPs.
Discussion
To date, very little research has been conducted on PLDPs and, to our knowledge, no study has focused its examination on predictors of program completion and case dismissal. Unlike the completion of many other criminal legal interventions, successfully completing PLDP results in an official and meaningful change of legal status—dismissal of the entering charge. The dismissal of a criminal charge is both an immediate response to the completion of programmatic requirements, and it carries long-term significance as the collateral consequences of the criminal charge are avoided. In addition, prior research has demonstrated that successful PLDP completion is related to lower rates of subsequent recidivism (Rempel et al., 2018). In this way, PLDPs as a local policy and programmatic innovation may serve to lessen the harms caused by entanglement in the criminal legal system and hold promise to be more effective at reducing criminalized behaviors.
Our study represents one of the largest and most diverse samples of PLDP participants and program models across three jurisdictions. In our analyses of over 11,000 individuals across six PLDPs ranging in program eligibility and intensity, well over two-thirds of participants in each program successfully completed the PLDPs, with some completion rates approaching 90%. These findings indicate that the PLDPs in the study have articulated program requirements that are realistic and feasible, and findings also suggest that the tangible reward of case dismissal is likely a motivating factor in program participation. These programs also demonstrate the ability to serve a high volume of clients, which creates a larger programmatic impact on the total criminal legal population via decarceration. The high PLDP completion rates are promising compared to other criminal legal interventions such as problem-solving courts where, in most studies, only around half are typically able to successfully complete the often cumbersome program requirements (Marlowe et al., 2016). Notably, longer PLDP terms were associated with lower completion rates, which has high policy significance as it suggests that shorter PLDPs may have better client outcomes when compared to longer programs. Shorter programs with better outcomes could result in more efficient use of resources and the ability for offices to expand capacity for the number of people that can be enrolled.
It is well-documented that African American and Hispanic populations are unequally impacted by punitive criminal legal practices, most notably, incarceration (Sentencing Project, 2018). A promising feature of the PLDPs in this study is the high proportion of participants of color, which suggests that program entry determinations are not overtly restrictive against racial and ethnic minority groups. However, when controlling for other demographic variables and charge characteristics in the program-specific analyses, African American participants were less likely to successfully complete the program than white participants in three of the six PLDPs. In the multilevel analyses, African American participants were less likely to successfully complete the program compared to whites, while Hispanic participants were more likely to complete PLDP compared to whites. Understanding PLDPs as part of an overall “smart decarceration” approach (i.e., reducing incarceration in ways that are effective, sustainable, and socially just) means examining their potential to lessen the use of incarceration while also redressing racial disparities in the criminal legal system (Epperson & Pettus-Davis, 2017). The findings from this study indicate that people of color seem to gain adequate access to PLDPs, but further research is needed to better understand differential completion and case dismissal rates among some racial minority groups in specific programs, to ensure that PLDPs operate in an equitable manner.
While findings on the relationship between offense type and completion/dismissal rates are somewhat varied across the six PLDPs, some findings warrant further analysis. The two Study Site A programs demonstrate significantly higher successful completion rates for people with narcotics/substance charges. This finding suggests future research is warranted to better understand the programmatic elements of these PLDPs and the extent to which they address substance use needs, which may account for positive effects on program completion and case dismissal. In the multilevel analysis, most of the offense categories were not significantly associated with PLDP completion, suggesting that the various charges allowed in the six PLDPs in this study are conducive to programmatic requirements. Although battery/assault represents one of the only charge categories that may involve violence, this charge category was significantly associated with increased odds of program completion in two of the program-specific analyses as well as in the multilevel analysis. As PLDPs continue to expand their eligibility criteria and scope, these findings suggest that some charges classified as “violent” could be good candidates for prosecutorial diversion.
Although the multilevel analyses found that, across programs, individuals charged with a felony were less like to complete the PLDP, perhaps the most remarkable offense-related findings were the different results comparing felony and misdemeanor charges in the two Study Site A programs. Individuals charged with a felony in the Study Site A DPA were significantly less likely to complete the program compared to individuals charged with misdemeanors, where Diversion participants charged with felonies had much greater odds of successful completion and case dismissal compared to individuals charged with misdemeanors. The primary differences between these two programs are that participants in the DPA score at moderate risk for reoffending, whereas participants in the Diversion program score at lower risk and, as a result, the corresponding intensity of program requirements in each program. It is possible that individuals charged with felonies who have higher criminogenic risk scores may have multiple and complex needs that interfere with program participation and completion. On the other hand, people charged with a felony who score at lower-risk levels may be more motivated to complete the Diversion program and have their felony charge dismissed and avoid more serious consequences, compared to Diversion participants charged with misdemeanors. Our findings indicate that risk-based PLDP eligibility criteria (versus exclusive felony or misdemeanor programs) may present meaningful opportunities for people charged with more serious offenses to escape many of the negative long-term effects of a criminal legal conviction. However, criminogenic risk instruments have been found to contain racial bias; future research on PLDPs should be careful to examine whether and how the use of risk assessment tools may contribute to racial disparities (Vincent & Viljoen, 2020).
Several limitations of this study should be noted. Although a strength of the study is that multiple years of data were analyzed from six PLDPs across three sites, the programs were considerably different in terms of length, intensity, and eligibility, thereby limiting our ability to fully examine and compare specific program characteristics and their association with PLDP completion. In addition, because the Study Site C programs were developed more recently, the sample sizes from these two PLDPs were significantly smaller than the other four programs, which may limit the necessary power to detect significant associations. Our analyses were also limited to existing variables in the administrative data; for example, data were not available on participants’ previous criminal history or individuals who declined to participate in the PLDP. Although this lack of data may affect the findings, the prosecutors’ offices at the three study sites indicated that well over 90% of individuals who were offered the PLDP accepted the invitation to participate. In addition, we did not have complete information on reasons for program failure or data on individuals who chose not to participate in the PLDP, which limits our ability to better understand how programs might be modified to improve completion rates. Future research could build upon this study’s findings by delving further into participant and programmatic characteristics to examine the extent to which PLDPs help individuals reduce or eliminate future criminal legal involvement. In addition, qualitative research should be employed to better understand participant experiences, prosecutor perspectives, and programmatic characteristics. Members of our research team are presently conducting this qualitative research, as mixed-methods approaches are likely to provide additional data to glean new insights into the potential of emerging diversionary programs such as PLDPs.
Existing research on PLDPs leaves many issues unaddressed—issues that are critically important to enhance the improvement of PLDPs and their potential for positive impact. Research on PLDPs must move beyond basic evaluations to studies that seek to answer how and for whom PLDPs do (or do not) achieve desired outcomes. Our study highlights the importance of understanding the predictors of successful PLDP completion and case dismissal. Future research should examine whether successful PLDP completion is related to reduced contact with the criminal legal system. One possible explanation for previously modest recidivism reduction findings is that, for some defendants, more may be needed than simply not prosecuting. If PLDPs hope to yield the highest reductions in rearrest, a range of support and treatment needs must be assessed and responded to during PLDP participation. However, research examining the effect of different treatment interventions within the context of PLDPs is essentially nonexistent and should be the focus of future research. As PLDPs expand their eligibility criteria to individuals with more serious charges and complex treatment needs, evidence is needed on how the effectiveness of service provision programming can be maximized within PLDPs to reduce further criminal legal involvement (Rempel et al., 2018). In addition, although PLDP completion results in the dismissal of the entering charge, in most states, the original arrest remains on record, and arrest expungement processes can be cumbersome and difficult to navigate or, in some cases, not allowed for certain charges. If PLDPs truly aim to reduce collateral consequences, efforts must be made to facilitate timely expungement of arrests for those that successfully complete the program (Murray, 2016).
In conclusion, the criminal legal system continues to evolve in attempts to move away from punitive incarceration-based approaches. Prosecutors are a critical component of current criminal legal system reform efforts, and prosecutor-led efforts have significant potential to impact the levels of criminal legal involvement for many. Data-driven prosecutorial innovations are in their infancy but are greatly needed as prosecutors are increasingly aspiring to move away from adversarial approaches when possible. Our study finds that PLDPs hold great promise to involve a high volume of participants, engage them earlier in their criminal legal involvement while preventing unnecessary incarceration, and provide meaningful diversion toward more productive opportunities. Establishing evidence-driven approaches to prosecutorial diversion is an emerging opportunity. As PLDPs expand in number and scope, it will be important to assess their contributions to contemporary criminal legal reform efforts and to understand their impact on the broader field of decarceration.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of thisarticle: This study was suported by a grant from the Laura and John Arnold Foundation.
