Mary Fan, Street Diversion and Decarceration, 50 Am. Crim. L. Rev. 165 (2014), https://digitalcommons.law.uw.edu/faculty-articles/108
American Criminal Law Review
deferred prosecution, drug courts, police, public health
States seeking more cost-effective approaches than imprisoning drug offenders have explored innovations such as drug courts and deferred prosecution. These treatment-based programs generally involve giving diversion discretion to prosecutors and judges, actors further down the criminal processing chain than police. The important vantage of police at the gateway of entry into the criminal system has been underutilized. [para] The article explores developing the capacity of police to take a public health approach to drug offending by engaging in street diversion to treatment rather than criminal processing. This approach entails giving police therapeutic discretion—the power to sort who gets treatment rather than enters the criminal justice system. [para] The article draws insights from medicine and the experience of treatment courts about how to guide therapeutic discretion, mitigate the risk of racial disparities in selection of beneficiaries, and offer checks and balances on power.