Op-Ed: Alabama’s Diversion Programs Are In Trouble. We Must Do Better.

Op-Ed: Alabama’s Diversion Programs Are In Trouble. We Must Do Better.

By Leah Nelson and Carla Crowder, Alabama Appleseed Center for Law & Justice.

Alabama faces two distinct yet intimately intertwined crises that affect thousands of families, many of whom lack wealth and influence, so their voices are rarely heard where decisions are made.

First, a public health crisis that is devastating communities across the state, where at least 717 people died from drug overdoses in 2019. Second, a crisis in our prisons, where, following a multiyear investigation, the United States Department of Justice found the entire state prison system for men in violation of the Constitution’s prohibition against cruel and unusual punishment. Alabama’s prisons are the deadliest in the nation and are infested with illegal drugs. 

No single innovation, investment, or reform will be adequate to solve such persistent, systemic dysfunction. But there are approaches that can help. Among them are diversion programs like pretrial diversion, drug courts, court referral, and community corrections that help low-level offenders, particularly those whose behavior is linked to addiction, get the treatment they need and avoid convictions or incarceration. 

In a new report, In Trouble: How the Promise of Diversion Clashes with the Reality of Poverty, Addiction, and Structural Racism in Alabama’s Justice System, Alabama Appleseed examined diversion in detail. Our priority was reaching people most impacted by the system.

We surveyed hundreds of Alabamians who had participated in diversion programs and conducted in-depth interviews with dozens. We observed drug courts across the state, met with current and former administrators of drug courts, pretrial programs, community corrections, and court referral, and sought data about the operation of pretrial diversion run by district attorneys.

What we learned is that these programs are too expensive for people who lack wealth to participate in them without making outrageous sacrifices. Worse, they are not designed to accommodate the everyday realities of folks who have jobs, children, or other obligations they must attend to.

Most programs entail random drug tests. Some require people to drop everything several times a week to drive to another county to leave a urine sample. Most programs require frequent court appearances during business hours, and also require participants to work – sometimes, full time. 

How many of us could get most of a day off once every couple of weeks to spend hours in a courtroom waiting for our chance to speak with a judge? Now imagine doing that if you were a single mom, if you worked at a job that paid by the hour and had an unpredictable schedule, or if you didn’t have a car.

In Shelby County, we encountered a father named Ryan whose experience exemplifies the system’s shortcomings. In 2017, Ryan was convicted of unauthorized possession of a controlled substance and put on probation in Chilton County. In early 2019, he reoffended in Shelby County and was accepted into Shelby’s drug court, widely acknowledged to be one of the toughest in the state. 

Ryan excelled in rehab and got his life back together, but he didn’t understand he was supposed to still be checking in with his probation officer in Chilton. He thought his supervision had been consolidated in Shelby. When he learned there was a warrant out for his arrest, he turned himself in. He sat in jail for three months while much of the work he had done to rebuild his life disintegrated. He’s out now, but he’s struggling. He earns $400 a week to support himself and his young son. Between drug tests, supervision fees, drug court fees, and fines, he pays about $700 a month. That’s almost half of his income. 

In Madison County, we met a mother named Amber who was released from Tutwiler into community corrections in fall 2019. Amber was relieved to be home and supporting her two teenaged sons. She received job training and multiple certifications while she was in Tutwiler. 

She couldn’t wait to get to work. And she had to work, because community corrections required her to pay $290/month for electronic monitoring plus another $20/week for drug tests. She had to bring them the first installment within 24 hours of her release or she’d be taken straight back to prison. 

Amber found a job that pays about $250 per week through a staffing agency takes part of her paycheck. About a third of her monthly income goes toward electronic monitoring and drug tests alone. That’s unsustainable.

Amber and Ryan are far from alone in struggling with the financial and operational obligations of diversion programs. In 2018, Appleseed worked with partners to survey nearly 900 Alabamians about their experience with the courts. About 20% of the people we surveyed reported they were turned down for a diversion program like drug court because they could not afford it. About 15% had been kicked out of a diversion program because they were unable to keep up with payments. Disturbingly, it’s not always clear where the payments go, particularly in the case of District Attorney Pretrial Diversion because data is not collected and shared.

In 2019, we followed up with a survey of a smaller group of people, all of whom had participated in some form of diversion program. 

Most of the people we surveyed were poor. Yet they were still required to pay a median amount of $1600, more than a tenth of their total income. Only one in 10 had ever had their payments reduced due to inability to pay. 

Without that relief, the overwhelming majority gave up a basic necessity like food, rent, or car payments to keep up with their payments. More than a third took out a payday loan. And about four in ten admitted they had committed a crime to keep up with their payments.

Even so, many could not keep up. One-fifth of people who were unable to complete their diversion program for structural or financial reasons found themselves incarcerated as a result. Prosecutors and judges deemed these Alabamians well-suited for a second chance. They were trying to improve their circumstances, to support and care for their families. But because they were poor, lacked driver’s licenses, had to care for their children or go to work, they found themselves locked away in prisons that the Department of Justice has determined are “rife with violence, extortion, drugs, and weapons. Prisoner-on-prisoner homicide and sexual abuse are common.”

As the Alabama Legislature grapples with these crises in the coming months, it is our hope they will hear the voices of Alabamians closest to these intertwined problems, the public health crisis and the prison crisis. 

If diversion programs are to serve their purpose of giving Alabamians who have made mistakes a second chance and keeping families together, they must account for the everyday realities of the people who participate in them. 

There is a lot of promise in diversion, but these programs are not accessible to people who lack wealth. If we don’t take steps to correct this, Alabama will continue to have one form of justice for the rich and a very different one for the poor.

 

Leah Nelson serves as Research Director at Alabama Appleseed Center for Law & Justice. Carla Crowder is Appleseed’s Executive Director.  Alabama Appleseed is a nonprofit, nonpartisan research and advocacy organization that works to achieve justice and equity for all Alabamians.