Diversion Division: A Remedy for Racially Disproportionate Drug Enforcement

02/09/2011 03:21 pm ET | Updated May 25, 2011
  • Katy Welter Attorney, Chicago Appleseed Fund for Justice

In Illinois last week, a statutorily mandated, unbiased committee, the Disproportionate Justice Impact Study (DJIS) Commission, reported the latest evidence confirming a long-held suspicion -- that the war on drugs undermines African Americans and their communities, to devastating end. As one remedy, the report (PDF) recommends that Illinois allocate a greater portion of the correctional budget to incarceration alternatives, such as probation, supervision, or community-based treatment, for non-violent drug offenders. Chicago Appleseed advocates for this recommendation because diversionary programs increase justice while reducing costs.

Drug crimes are the single greatest cause of the extraordinary increase in incarceration rates over the past several decades. 72% of Cook County, Illinois's charges were drug-related in 2005 (the most recent year for which data was available), the vast majority of which were non-violent Class 4 Felonies -- the lowest level drug felony. As of 2009, the Bureau of Justice Statistics reports, over 2.3 million Americans were behind bars, while nearly 7 million people -- that is, 3.1% of the US population, or 1 in 32 Americans -- were under supervision of the correctional system. By contrast, China, which has a population four times that of the United States, has the second-highest number of inmates worldwide, at 1.5 million.

Mass incarceration destroys communities where a high proportion of its members are imprisoned or formerly imprisoned. Communities with high rates of incarceration experience dramatically higher rates of all of the following: HIV-infection rates, unemployment, domestic abuse, less-than-high school education, below-average life span, single-parent homes, and poverty-level income. And these communities are predominantly nonwhite: in Illinois, African-Americans comprise 15% of the general population, and 61% of the prison population.

Incarceration also incurs enormous costs to the state as a whole. Housing one inmate for one year in Illinois costs an estimated $40,000. And Illinois, a state notoriously flirting with bankruptcy, devoted nearly $1 billion to drug-related corrections -- over 80% of its total correctional budget. Illinois spends one out of every 20 tax-revenue dollars on its correctional system. It spends just two out of every 20 dollars on education. Of course, imprisoned individuals are unable to work, buy goods, pay taxes, or otherwise contribute to the economy.

It is easy to assume that high rates of drug-related incarceration correspond neatly with higher rates of drug use. But numerous studies have shown that they don't: drug use remains consistent across race and ethnicity. In fact, some studies indicate that whites are twice as likely as nonwhites to consume non-cannabis drugs.

Despite rates of drug use comparable with whites, the DJIS report shows that black males in Illinois are much more likely to be arrested, prosecuted, and ultimately incarcerated for low-level drug crimes than their white counterparts. Here are a few highlights from the report:

• In Cook County, nearly three quarters of arrests are for Class 4 drug possession felonies. In cases where possession is the only charge, blacks are eight times more likely to face incarceration than whites.
• Among individuals with zero or one prior conviction, blacks were three times more likely than whites to be incarcerated for Class 4 drug possession. Among first-time offenders, whites are also more likely to be offered rehabilitation services than non-whites.
• Controlling for all major factors, whites are twice as likely as blacks to be diverted from traditional criminal court and, instead, sentenced to court supervision or probation.

The last bullet refers to a collection of services sparingly offered to defendants suffering from drug addiction and mental illness -- a population that comprises as much as half of arrestees in Illinois. Data-keeping methods make it impossible to know what percentage of eligible arrestees is currently diverted to probation, supervision, and/or rehabilitation services. However, the number is known to be well below its potential, despite the fact that diversion can drastically reduce incarceration rates and the insidious collateral damage to defendants' communities.

Chicago Appleseed and the Chicago Council of Lawyers are working with several criminal justice advocates toward creating a Diversion Division within the Cook County Criminal Court System. Under the proposal, select non-violent defendants with underlying addiction and mental health-related issues will be assigned to an assessment center. After a treatment assessment, the defendants will be diverted to a courtroom where a judge and staff will be devoted to diversion cases. Then, defendants will be assigned to community-based treatment centers and/or supervisory or probationary terms. Finally, a regularly scheduled probation call will allow judges to assess the progress of defendants and provide positive or negative feedback.

Chicago Appleseed has already argued that a Diversion Division is cost-effective, saving as much as $1,850 per diverted defendant in court-processing costs alone. The Center for Health and Justice at Treatment Alternatives for Safe Communities (TASC) estimates a total savings of $167 million a year to Illinois, were it to divert eligible candidates to community-based treatment -- rather than correctional -- facilities. The benefits to the defendants and their communities are undoubtedly far more significant.

The message is clear: unless we divert non-violent, low-level drug offenders from prison to more productive programs, the current drug-enforcement policy will continue to ravage African Americans and their communities, at extraordinary cost to everyone.

Note: Chicago Appleseed Executive Director, Malcolm Rich, served as a policy advisor to the Disproportionate Justice Impact Study Committee.

Unless otherwise cited, all information was obtained from the Disproportionate Justice Impact Study (PDF).