Recent calls for prosecutors in cities across the country to use their discretionary power to stop the mass incarceration crisis has resulted in programs called “alternatives to incarceration” and “diversion.” These programs are, for the most part, a good thing, but the terminology shows that we are thinking about the problem all wrong. Words matter, especially when defining our collective goals, expectations, and values.
The names of these efforts reinforce the undesirable fact that imprisonment has become the presumptive end result for large swaths of the population. And worse yet, these terms are rapidly expanding into the overall American criminal justice lexicon. In order to both assure public safety and respond to the underlying conditions that contribute to crime, Americans should begin to instead think about “responsive sentencing.”
Efforts to identify appropriate non-incarceratory responses to particular conduct are not new to prosecutors. As early as the 1970s, reformers called upon law enforcement to expand the use of “diversion,” and all prosecutors have stories about the teenager to whom they gave a lucky break, or a substance abuse sufferer to whom they repeatedly afforded the opportunity to attend a drug program. In some instances, the current movement towards “diversion” essentially involves the codification and standardization of practices that prosecutors have long employed in ad hoc ways: “diverting” a person charged with drug crimes into a treatment program, finding an “alternative” residential mental health facility, or using the threat of jail time to get someone to pay their victim back for a theft, to name just a few.
Public opinion has increasingly highlighted that this sort of inconsistent exercise of discretion, while sometimes merciful, results in vastly unequal outcomes. Current efforts to expand and systematize such outcomes include ensuring that in any given jurisdiction, people in similar situations have the opportunity to access the same options.
Prosecutors are also rightly making efforts to see that the service providers of these “alternatives” consistently deliver high quality, needs-responsive care. Meek Mills and others have recently pointed to the potential for funding such programming by re-allocating the vast resources traditionally used for incarceration.
But the names of these initiatives fundamentally reflect that the system is mired in the past and thinking too narrowly. “Diversion,” by definition, is a deviation from a pre-determined path, or, even more ironically in this context, a pleasurable pastime. An “alternative to incarceration” casts incarceration as the norm. We ought not be bound by the antiquated notion that contact with the criminal justice system equals prison, or the heartbreaking feeling that certain populations’ incarceration is inevitable. The field of criminal justice has a chance, right now, to develop a language consistent with its own evolving values.
Undoubtedly, in the current landscape, the terminology is accurately descriptive in many cases. “John” is charged with a crime that carries with it a 2-year sentence, but he is given the opportunity to fulfill various conditions explicitly in order to avoid that prison term. Should he fail at those conditions, he will go to prison. In these cases, in the truest sense the outcomes are “alternatives to incarceration.” But if reformers prevail in decreasing the nation’s prison population, such cases will be fewer and fewer, and incarceration will become one in a series of tools used by prosecutors. Getting to that goal may be a little bit easier if we avoid names that reek of earlier, excessively punitive times.
Defense attorneys and advocates raise reasonable concerns that “diversion” efforts have a potential “net widening” effect on the criminal justice systems – if there are more outcome options available, more people will have contact with the system for ever-increasing kinds of conduct. Law enforcement would be wise to guard against that, but the concern does not counsel against creating appropriately responsive sentences that consider and address both the problematic conduct and its harm to others, and the underlying causes that led to it.
If criminal justice officials want to find ways to send fewer people to jail and prison, and to ultimately have fewer people incarcerated, then they might well consider removing the term from all aspects of the criminal justice system. The names of courtrooms, prosecutorial units, training protocols and beyond should not presuppose that everyone who touches the system will be sent to jail or prison. Words matter. It is time we stop “alternatives to incarceration” and start “responsive sentencing.”
Lucy Lang is the executive director of the Institute for Innovation in Prosecution (IIP) and served as an assistant district attorney in Manhattan for 12 years, most recently as special counsel for policy.