Data show a large increase in ‘diversion’ under Chesa Boudin. Here’s how it works

The District Attorney’s Office provided detailed data on a handful of the city’s diversion programs and courts, including demographics of diversion participants and number of people enrolled in certain programs. The data show that young Black and Hispanic men are the demographic groups most likely to be referred to diversion programs.

It’s likely that the increase in diversion rates is due more to diversion-friendly changes to statewide law than to Boudin’s policies specifically, according to criminal justice experts and Boudin himself. The use of diversion programs dates back to the 1970s in San Francisco and has been on the rise since 2017, and the city has long been unusual in how many felony crimes it diverts.

The Chronicle examined data from the District Attorney’s Office available on San Francisco’s open data portal showing the number of cases that were resolved through diversion programs. According to this data, the share of resolved cases ending in “successful diversion,” meaning the person involved in the case completed a diversion program, has increased to about a third of all resolved cases in 2021, up from about 16% in 2019 and less than 8% in 2017.

While most criminal justice researchers agree that diversion programs for lower-level offenses are positive, some prosecutors, including former employees of the District Attorney’s Office, are less sold on the research showing diversion’s impact on people charged with felony crimes, particularly serious crimes like assaults.

“Diversion has … historically, under both Kamala Harris and George Gascón, been reserved for lower-level-type felonies: Property crimes, drug possession crimes, that sort of thing,” Don Du Bain, a former prosecutor for Boudin’s predecessor George Gascón, previously told The Chronicle. “Robbery and felony assaults have not typically been diverted.”

In San Francisco, increased diversion rates can be seen across crime types, though lower-level misdemeanor offenses saw the largest increases. The diversion rate of cases involving DUI, petty theft and vandalism charges, for instance, increased most significantly from 2018-2019 to 2020-2021 — the two years before and after Boudin took office. Assault and battery, a category that tends to be charged as a misdemeanor offense and refers to a person using unwanted force on another but without serious injury (a punch or shove, for example), also saw its diversion rates soar in 2020 and 2021.

Boudin’s administration was not the first to increasingly turn to diversion programs as alternatives to traditional prosecution. Diversion was already beginning to increase under Gascón, going from 9% of all cases resolved in 2011 to 16% in 2019.

Because criminal cases can take years to resolve, especially when they are diverted, it’s possible many cases closed during Boudin’s tenure were originally referred to diversion programs under Gascón. But the Chronicle’s analysis also showed that diversion rates are up significantly for cases referred starting in 2020, when Boudin took office.

Diversion has also expanded in popularity nationwide. In a 2018 study of 11 major metropolitan counties, researchers noted that “a growing number of prosecutors have established pretrial diversion programs” in recent years.

In California, legislators passed several statewide laws that increased counties’ ability to rely on diversion programs in many cases, a factor that Boudin previously described to The Chronicle as having a major impact on his office’s conviction and diversion rates. Assembly Bill 3234, which took effect in 2021, made it possible for judges to seek alternatives to jail or prison time for first-time offenders charged with most misdemeanors. AB 991, which was enacted in 2018, made people experiencing certain mental disorders eligible for diversion, even if they faced felony charges.

The San Francisco District Attorney’s Office also created a primary caregiver diversion program in February 2020 in response to Senate Bill 394, which Newsom signed in October 2019 and required counties to create a program for parents who can show that they are the primary caregiver for a child. People charged with all misdemeanors are eligible, as well as some charged with felonies. Through supervision and programming, which can include parenting classes, participants can earn a dismissal of their case.

Alternatives to incarceration are important to keep people from avoidable interactions with the criminal court system, said Jason Williams, an associate professor of justice studies at Montclair State University in New Jersey.

“For some of these individuals, they may just need therapy,” Williams said. “And I don’t know that incarcerating them endless amounts of times is going to actually be therapy that they need.”

In all, San Francisco uses more than 20 diversion programs and courts that offer a range of supervision, from light to intensive, according to the D.A.’s Office. There’s a program for people on parole, for people who can’t afford court fines, and for people who struggle with mental illness that contributed to their crime. There’s even a program for graffiti artists to pay their penance by scrubbing off tags around town.

The programs are administered by the San Francisco Pretrial Diversion Project and the San Francisco Superior Court as well as the nonprofit Community Works West. People typically end up in diversion programs through referrals by the San Francisco Public Defender’s Office or the District Attorney’s Office, with a judge’s approval. A judge can also order someone to diversion over the wishes of a prosecutor and defense attorney.

“The district attorney is one piece of a much larger system,” said David Mauroff, CEO of the San Francisco Pretrial Diversion Project.

If a person fails to complete a diversion program, their case is sent back to traditional court and proceeds as normal.

Williams said in his own research he has heard from people in the system that they would rather do their time behind bars because the requirements of some programs seem too daunting.

“The presumption is that it’s harder,” he said.