Ask an expert: Meghan Nayak on how to get diversion right

The Economic Mobility Catalog’s strategy guide, Diversion Programs and Incarceration Alternatives, provides guidance for local governments seeking to implement diversion programs and incarceration reforms. It was created in partnership with experts and practitioners in the criminal justice field, including Meghan Nayak, associate director of Reshaping Prosecution at the Vera Institute of Justice.

In this edited interview, Meghan shares best practices for designing a community-driven diversion program and highlights exciting innovations in the field.

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Can you share a little about what diversion programs are?

Diversion programs are proven methods of accountability that allow participants to avoid the harms of incarceration. I like to think of them as an off-ramp for people before many of the consequences of the criminal legal system come into force. Diversion programs can intervene at several stages of the criminal legal process: before someone is arrested, before someone is charged with a crime, or before someone goes to trial. Diversion programs run by a district attorney’s (DA) office often allow people to have pending charges dismissed if they complete the requirements of the program—this is sometimes called conditional dismissal, although the terms vary based on jurisdiction and program type. Regardless of location, diversion programs typically include substance use or mental health counseling, education, or employment services that address the root causes of crime in a way that incarceration can’t. Many diversion programs focus on specific populations such as children, people with substance use issues, or people at risk of receiving their first conviction. At the Vera Institute of Justice (Vera), we have a great explanation of diversion programs that goes deeper on their structure and benefits.

One thing I want to clarify is how diversion programs differ from other alternatives to incarceration. Most alternatives to incarceration are more focused on replacing traditional custodial sentences with services that address why people are arrested. For example, problem-solving courts focus on specific areas like substance use. Unlike with problem-solving courts, where if you don't succeed you’re exposed to incarceration, unsuccessful diversion participants just start at the beginning of the judicial process. Even more effective are pretrial diversion programs that intervene before someone is in front of a judge, allowing people to avoid a guilty plea and a conviction history.

What are the most crucial design elements for an effective diversion program?

First, when it comes to eligibility, it’s crucial not to automatically exclude people based on their conviction history or their ability to pay fines or fees from diversion programs. It’s also important to examine how a prosecutor’s office decides who enters a diversion program. To minimize the risk of bias, a single, centralized diversion coordinator should be assigned to handle all diversion decisions, rather than leaving the decision with individual prosecutors or police officers. This approach allows for clear, consistent, and fair guidelines for diversion eligibility.

Second, it’s ideal if services are housed in the community and staffed by system-impacted individuals. Folks with lived experience know how to navigate the criminal legal system, and it’s easier for them to build trust with participants. These individuals are crucial allies and can serve as a bridge to other services in their community such as housing, food, or employment assistance. In interviews, diversion program participants have also shared that working with staff who have been in similar situations was a component of their success.

Third, when it comes to engaging participants and providing services, the most successful diversion plans are individualized, narrowly tailored, and flexible. Vera provided technical assistance and support to a program in Hawai`i for teenagers. Each participant is asked to explain their circumstances, and then an individualized plan is created with services based on each teen’s situation. Programs should plan for setbacks and understand that success is different for each participant—and that progress is success.

What key partners are essential to create an effective diversion program?

Primarily, leaders should engage system-impacted community members who have lived experience that can help shape diversion programs. These individuals can also work as mentors to program participants.

Next, it’s important to engage community-based service providers who offer a range of services related to diversion. These include treatment, therapy, support for housing, education, and employment opportunities. These services are what build successful diversion programs. Oftentimes we see service providers bringing everyone together to develop a diversion program.

Prosecutors are crucial because they often make the initial decision to divert a case and are also usually responsible for developing and managing diversion programs. Most importantly, prosecutors can exercise their discretion and decide whether or not to divert someone’s case.

In some jurisdictions, diversion comes into play after someone sees a judge. In these cases, judges and court staff play an important role. The judiciary ensures accountability in diversion programs, monitors people’s progress, and oversees the redirecting of people away from the traditional criminal justice system. In some cases, judges may set eligibility for diversion programs; other times, court staff may screen people for diversion programs and make recommendations to judges. Court staff also handle a lot of the administrative tasks around diversion and track a case as it progresses.

In the same vein, both private counsel and the public defender’s office, including the defense bar, are important for a diversion program. The defense bar plays a vital role in advocating for their clients’ eligibility for diversion and helping them navigate the criminal legal system.

How can local leaders make sure that diversion programs meet the specific needs of their communities?

The best way to meet the needs of a community is to include them in the process. We worked with the DA in Wyandotte County, Kansas, to implement a Participatory Action Research campaign that trained community members on research methods so they could gather data on what people experiencing poverty in Wyandotte County need to feel safe. They helped unlock a wealth of information on how the criminal legal system is failing low-income people, especially around pretrial services and pressure from the DA to take plea deals.

It’s also important to learn what’s working from those who have been through these programs—what did they find valuable about the program that helped prevent rearrest? Equally important is being in touch with the larger community’s needs regarding public safety. For instance, if a community has concerns around theft, a program designed to address the root causes of theft should include steps that connect people with jobs or other resources to create a better pathway to economic stability, while also incorporating practices that individuals who have completed diversion programs reported to be helpful, such as group counseling.

How do you measure success for a diversion program?

Typically, metrics for success look at recidivism—how many people are rearrested within a certain time frame, such as a year, after completion of the program. It’s also common to look at how many people are assigned to diversion programs or the program completion rates. But with diversion, especially when working with system-impacted people, you often need to take a harm reduction approach to measuring success. For example, if someone with a substance use disorder is using substances less than they were before entering the program, that’s a successful outcome. Progress should be viewed as success.

A big part of our work at Vera is looking at measures beyond recidivism. We do this by learning what success meant from diversion participants as they went through a program—this can range from fewer positive drug tests to job training or getting a GED. Vera recently published a report that includes 18 of these community-informed metrics for diversion programs. Some examples include acquiring life skills through classes and vocational training, opportunities for emotional and social learning, or developing a support network. These allow us to measure the quality of a diversion program for participants, which ultimately informs the likelihood of success.

What’s something in the diversion field happening now (or recently) that you’re excited about?

One thing I’m excited about is the increase in contingency management practices in the diversion field. What that looks like is using positive incentives to encourage better behavior. Traditionally, diversion programs have relied on deterrence—the threat of prosecution and possible incarceration for noncompliance. Instead, there’s a shift toward increasing participation in substance use disorder treatment with incentives. This approach aligns with existing practices in the criminal legal system, such as reduced sentences for plea agreements or less incarceration time for good behavior. It only seems logical we should extend it to diversion and treatment. It’s refreshing to see programs providing people with a carrot rather than a stick!