Pre-arrest diversion

Pre-arrest diversion requires contact with police before someone can be connected with services – a requirement that can place people experiencing mental health symptoms at greater risk of danger.

  • 8 Minute Read

DC is exploring expanding pre-arrest diversion as a pathway to connect people with mental health diagnoses to treatment and services and avoid the negative impact of justice system involvement. Pre-arrest diversion programs are police-led diversion programs where law enforcement may choose not to arrest people in certain situations and instead refer them to treatment.  While some kinds of pre-arrest diversion can have a role in the continuum needed to break the cycle of addiction and safety, efforts in DC will not reach a large number of people who need treatment because of the limitations of law enforcement involvement in the process. People experiencing mental health or behavioral health symptoms have a higher rate of experiencing police violence, which disproportionately impacts Black residents navigating a health crisis. If the District expands diversion, it should ensure decisions are free from officer bias and eligibility regardless of criminal record. Instead of simply focusing on pre-arrest diversion, DC should develop extensive mental health, substance use treatment, and harm reduction programs alongside community outreach systems to connect individuals to these services without interaction with police.

What you need to know

Diversion can occur at several points before or during criminal legal system involvement

A diversion program is a broad term used to describe any pathway that provides people with an alternative to the formal justice system processing and allows them to exit the criminal justice system without an arrest or criminal conviction on their record. The benefits of diversion are that it costs less than incarceration, can connect a person to treatment for a mental health or drug use issue, which is a core driver of their justice system involvement, and can yield better public safety outcomes because individuals avoid exposure to conditions in the criminal justice system that make it more likely they will continue to be involved in the justice system.  

 

While leading organizations, such as the Vera Institute for Justice, the Prison Policy Initiative, and the Center for Effective Policy, do not agree on how to name and categorize different types of diversion, there are five general types of diversion referred to in the literature:

The Metropolitan Police Department’s Pre-Arrest Pilot Came Nowhere Near Addressing Community Needs.

Sources: 2019 The Metropolitan Police Department;  2023 National Alliance on Mental Illness.

As soon as 911 is called, a community-based organization—not the police —works with an individual to address the underlying challenge leading to a police encounter, such as homelessness, mental health challenges, or a substance use disorder. The process avoids an arrest.  

Pre-arrest diversion programs are police-led diversion programs that allow police officers to choose not to arrest people in certain situations. Under the Co-Responder Program, in Fairfax County, a police officer may not formally arrest someone but may instead take them to a treatment program or a hospital. 

Pre-charge diversion programs are available before the trial begins, either before or after the prosecutor chooses to file charges. Under pre-file diversion, as in the Neighborhood Court in San Francisco, California, the charges against the defendant are never filed if the defendant completes the requirements. Under post-filing (sometimes known as deferred prosecution), the prosecutor has filed formal charges but diverts the individual before the defendant goes to trial, as in the case of the Cook County deferred prosecution program.

Some states give judges (and sometimes prosecutors) the discretion to divert people from the criminal justice system before they are formally convicted of a crime.  There are problem-solving courts where a specially trained judge, prosecutor, and defense counsel focus on addressing mental health or treatment issues.   A post-charge, pre-conviction diversion can include deferred adjudication, where a judge defers a defendant’s guilt until the defendant has a chance to complete certain requirements or programs, like in the Deferred Adjudication Community Supervision Program in Brazos County, Texas. 

A defendant may be offered post-conviction diversion as an alternative to incarceration, such as probation, community service, or a restorative justice program.  Because some post-conviction programs only allow defendants to avoid prison or jail, and the criminal charges remain on their record, the Prison Policy Initiative says, alternatives to incarceration in and of themselves are not a true diversion “exit ramp.”

Secure DC led the establishment of a pre-arrest diversion task force.

In 2024, the Council of the District of Columbia enacted Secure DC, a law designed to respond to an increase in crime following the pandemic that was largely focused on sentencing enhancements and changes to the statute to hold more individuals in pretrial detention.  As part of that law, the DC Council created a permanent pre-arrest diversion task force to do the following:  

Review and assess best practices for prearrest diversion;

Make recommendations for prearrest diversion of certain misdemeanor offenses and certain categories of persons;

Make recommendations regarding the programs, facilities, personnel, and funding that are necessary to implement prearrest diversion; 

Make recommendations for any legislative changes that are necessary to enable prearrest diversion; 

Implement pre-arrest diversion of certain misdemeanor offenses, and categories of persons identified by the Task Force as being appropriate for diversion; 

Identify any potential improvements in police training or procedures relating to police interactions with individuals impacted by homelessness, mental or behavioral health issues, or substance abuse;

Identify individuals who frequently interact with police, are frequent mental health consumers, or have suffered from chronic homelessness, and ensure that those individuals are connected to social services.   The Task Force is expected to offer recommendations in August 2026. 

All forms of pre-arrest diversion require some level of contact with law enforcement.

The National Association of Counties identifies the following types of pre-arrest diversion, all of which require the individual to have a connection point to law enforcement:

Self-referral: a community member can initiate contact with law enforcement or other first responders without fear of arrest and receive an immediate referral to services;

Active outreach: community members in need of services are identified by law enforcement or other first responders and subsequently contacted by qualified behavioral health or peer support specialists;

Post-overdose outreach: community members who have recently survived an overdose are identified by law enforcement or other first responders, contacted by behavioral health or peer support specialists, and offered naloxone and linkage to services;

Prevention referral: a law enforcement officer or other first responder refers any community member to case management and services in order to improve that person’s well-being and prevent future criminal justice involvement 

Intervention referral: law enforcement officers respond to a chargeable offense committed by a community member by referring that person to case management and services while declining to file charges or holding charges in abeyance. 

Pre-arrest diversion can be a misleading name. While an arrest may never occur, individuals generally must first interact with police before they can access services.

Police contact can carry negative consequences.

Studies show that contact with police can lead to worse mental health outcomes and erode community trust in police. The negative consequences of police contact are even more significant for someone already experiencing a mental health challenge. All of these factors taken together indicate that even brief police contact that does not result in arrest can increase the severity of mental health conditions in individuals, as well as on a community level. Requiring police contact before someone can receive treatment may undermine the very purpose of diversion. 

Black residents experiencing a health crisis have reason to fear police contact.

Black residents and people experiencing mental health crises are more likely to experience harmful encounters with law enforcement. People with mental illness are ten times more likely to experience use of force during a police encounter, which makes approaching police for mental health care potentially unsafe. Nationally, Black people experience police misconduct at six times the rate of white people, and according to the Office of Police Complaints, Black DC residents made up 71 percent of complaints in 2025. The latest data show complaints against police rose 25 percent through March 2026, coinciding with the “federal surge.”  As one advocate who works with individuals who are navigating health crises and drug use issues said,  “[police officers] show up with weapons, and they can be scary. And who you get is the luck of the draw….You don’t know if you’re going to get Officer Friendly or you’re going to get Officer Ready to Shoot.”  Another advocate said, “so the police come into a space where there’s already a person who’s experiencing a mental health crisis….There’s probably already some anxiety….some fear in the situation, and then to have armed officers show up[.] It creates more anxiety.”

Pre-arrest diversion that excludes individuals for certain offenses or prior convictions can keep the people most in need from receiving treatment.

The Task Force was charged with making recommendations for prearrest diversion of certain misdemeanor offenses and certain categories of persons.  This instruction significantly narrows the pool of eligible candidates based on their alleged offenses.  Based on the final report, the Task Force went a step further than the instruction by further limiting eligibility based on prior convictions for felony offenses.   Narrowing of eligibility can prevent people whose untreated addiction or illness has led to the very behaviors that brought them into the justice system. By way of example, Howard County, Maryland’s Law Enforcement Assisted Diversion program is only available to people suspected of a narrow range of low-level offenses. In the state of Maryland, assault on a police officer is a felony-level offense; a person experiencing a psychiatric episode who, as a result of their mental health crisis, assaults a police officer would not be eligible for diversion to receive mental health treatment due to the nature of their offense. In DC, there are tens of thousands of individuals who are still navigating a mental health challenge or substance use issue, and still cycling in and out of the justice system.  CSOSA has said that among the more than 12,352 people they supervised over a year, as many as 37 percent had a self-identified or diagnosed mental health issue, and as many as 6 percent have a mental health diagnosis requiring specialized supervision. As many as 70 percent of individuals had an identified mental health issue at intake when they entered the DC jail.  If these individuals come into police contact for new behavior, because of their prior offense record or open cases, they could be excluded from a pre-arrest diversion program.

Police officers do not necessarily believe they should be involved in behavioral health interventions.

The organization Just Safe surveyed sworn officers, including police officers, corrections officers, and other law enforcement, and put the following question to them:  “Some communities have implemented programs intended to assist law enforcement officers and reduce their workload. Please indicate how strongly you agree or disagree with the following statements.” Nine out of 10  agreed with the statement that police are not equipped to handle substance use disorder, homelessness, or mental health crises on their own. Eight out of 10 agreed with the statement that, professional mental health workers trained in de-escalation techniques and crisis intervention would make their job safer and easier in situations where someone is experiencing a psychiatric crisis.” In DC, former police officer and the former head of crime analysis at MPD Dan Kornfield said “police do their best, but don’t have the time or training to do interpersonal counseling, nor to fully follow up on the most serious calls.”

DC had a pilot pre-arrest diversion program that never addressed the needs required to scale before it ended.

In 2018, DC’s Department of Behavioral Health (DBH), Department of Health and Human Services (DHHS), and the Metropolitan Police Department (MPD) launched a pre-arrest diversion pilot program. The program included all of the methods of diversion outlined above and ran from September 2018, when the program was fully staffed, until December 2018. In that time, the program enrolled a total of 82 participants, though an additional 228 people were identified as needing assistance but were not enrolled.   To put the number of individuals served by the pilot in context, according to the National Alliance on Mental Health, 27,000 adults in the District have a serious mental illness, but the pilot program was only able to serve 0.84 percent of that population.  The pilot program ended in 2019.  The Task Force report said, “the pilot program staff from DBH were absorbed by the Community Response Team during a reorganization. There was no opportunity for a formal evaluation of the pilot program.” In subsequent years, MPD made efforts to increase the number of sworn officers who received Crisis Intervention Officer training. As late as 2023, the Jails and Justice Task Force said,  “[B]ased on publicly available information, DBH and MPD have expanded the number of MPD officers who receive Crisis Intervention Officer (CIO) training, but there is no evidence that Pre-Arrest Diversion (PAD) trainings exist or have increased.”

The pre-arrest diversion task force may have missed opportunities for community input to develop the best approach.

When the 2018 pilot diversion program was underway, the Office of the Auditor for the District of Columbia recommended that, “DBH develop a long-term pre-arrest diversion program beyond its initial FY 2018 pilot…..[and] [t]hat, in developing its diversion program(s), DBH actively pursues input from community stakeholders and diversion program experts. The input should be formal, such as through town hall-style meetings.”  The pre-arrest diversion task force membership included representatives from the Metropolitan Police Department, the Department of Behavioral Health, the Department of Health of the District of Columbia, the United States Attorney for the District of Columbia, DC Superior Courts, the Office of the Attorney General, as well as representatives from community organizations who provide behavioral health treatment services to DC residents. Of the eighteen individuals listed in the Appendix of the pre-arrest diversion taskforce report, fourteen were government officials, and four represented three service providers – all of which are current contractors with the DC government for health and supportive services. The membership did not include any community representation outside of service providers. The task force convened a roundtable of six community members, but, at the request of community organizations to provide more community feedback on the proposed recommendations in April 2026, the task force voted to proceed without further community involvement. The task force membership or the process they used to seek input only included people with lived experience of substance use disorder or mental health disorders; the report is unclear on whether the participants of the round table also possessed lived experience with the criminal legal system.  The membership of the task force did not include community members with lived experience or organizations representing the people with criminal legal system involvement. 

DC needs more treatment pathways for justice-involved individuals that do not require police involvement.

Experts who work with justice-involved individuals who are navigating mental health, substance use, housing insecurity, and who cycle in and out of the justice system have proposals for a more robust approach than the one offered by the pre-arrest diversion task force. In 2026, a coalition of DC organizations came together to develop an agenda of over seventy recommendations to increase public safety.  The recommendations for behavioral and mental health programming seek to break the cycle for people experiencing addiction or mental health crises to incarceration, and to include and fund pathways to healthcare that do not involve police. Another recommendation expands and funds harm reduction initiatives, or programs that make drug use less lethal for DC residents by offering safe needle exchange and drug checking services. One effective pathway of diversion is alternative crisis response, in which health care and social work professionals are dispatched to crisis calls involving mental health or substance use emergencies instead of police.

WHERE TO LEARN MORE

Solutions

DC should:

  • Broadly fund and legislate extensive mental health, substance use treatment, and harm reduction programs alongside community outreach systems to connect individuals to these services without having to interact with police.
 
  • If the Council of the District of Columbia seeks to develop legislative proposals on diversion, it should be offered to people regardless of their criminal record and be done via a process free from officer bias.

special thanks

Mary Zenger

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