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How Some Cities Are Helping Drug Offenders Instead of Arresting Them

A genuine alternative to the war on drugs is closer than you might think.

Law Enforcement Assisted Diversion programs in cities like Seattle primarily help low-level offenders, especially the poor and homeless, avoid jail. Photos by the author

A man is stopped by the police. He has seven grams of crack, and is selling it on the street. He's black. The cop asks him a series of questions, ending with, "Would you like some assistance with the problems that led you to selling drugs on the street today?" In this case, "assistance" doesn't mean a jail sentence, but a case manager that can offer help finding the man housing, a job, health care, and substance abuse treatment.

It sounds like some kind of Scandinavian dream, but in some American cities, this is actually happening. Take Seattle, where former public defender Lisa Daugaard wanted to take on racial inequality in the justice system. "But you can't be serious about that if you don't take on drug enforcement," she says. For years, she filed motions accusing the Seattle police of racial profiling, before meeting with cops to work out a way to avoid locking up so many people of color for minor offenses.

The population of King County, where Seattle is located, is only about 8 percent black, but black inmates represent roughly 36 percent of county jail inmates. Nationally, the war on drugs has had a similarly disparate effect on people of color: While America is 13 percent black, black inmates make up 40 percent of the over two million people incarcerated in this country. A black man between the ages of 20 and 34 is nine times more likely to be jailed than his white counterpart. Together, blacks and Hispanics make up just over a quarter of the country's population but nearly 60 percent of those incarcerated.

In July this year, more than 30 jurisdictions were represented at a White House event where Daugaard and others presented on the success of Law Enforcement Assisted Diversion, or LEAD, since it began in Seattle's Belltown neighborhood in 2011. The program is designed to replace some policing practices and divert some low-level drug and sex work offenders from local jails. In Seattle, as in many cities in the US, these offenders are often chronically homeless and struggle with either mental health or substance abuse issues, or both.

Santa Fe, New Mexico, implemented LEAD in April 2014 , targeting heroin and opiate users and subsistence dealers. Albany, New York, has signed a memorandum of understanding between local government entities to get their own program off the ground. City officials in Atlanta are expected to vote this month on the creation of a design committee for their own LEAD pilot, which would be supported by an Open Society Foundation grant also awarded to Los Angeles, Philadelphia, and four others jurisdictions devising their own LEAD program. Baltimore, Chicago, Houston, New Orleans, San Francisco, and others are considering LEAD, too, suggesting a genuine alternative to some of the worst policies of the war on drugs is closer than you might think.

One evaluation of LEAD in Seattle found that participants were 87 percent less likely to be incarcerated after their initial diversion than members of the non-LEAD control group. (Another study found a 58 percent reduction.) The annual cost associated with people in the LEAD group dropped by an average of $2,000, while control group costs rose nearly $6,000. Daugaard argues that a better measure of cost savings could be done after LEAD is implemented to scale—since right now it's limited to Belltown, a notoriously crime-ridden part of downtown—when perhaps a courtroom or wing of a jail could be shut down. But even now, she argues, LEAD "achieves significantly better outcomes and is somewhat less expensive... so there's not much of a case to keep doing the system as usual".

The program is addressing longstanding racial inequality in the city's justice system, one that offers hope for the rest of the country.

"When LEAD came I feel like we managed to identify a whole community of people that we had not been serving, that were mostly African-American," says Chloe Gale, co-director of a program within Evergreen Treatment Services, a local social services nonprofit that houses LEAD. The new clientele had similarly severe mental health and substance abuse issues and medical conditions, but had lacked the same level of access to services as others. "Their constant movement through the criminal justice system was so disruptive to them making any progress in any other service system," Gale argues.

Daugaard and the Defender Association's Racial Disparity Project brought together the American Civil Liberties Union, law enforcement officials, the elected prosecutor, the city attorney, a local social services organization, and the neighborhood business association back in 2011 to spearhead the first known US pre-arrest diversion program for narcotics and sex work charges. Years of litigation during which the ACLU challenged Seattle's alleged "selective enforcement of drug laws against African Americans" did little to resolve the dispute between prosecutors and public defenders, but both sides acknowledged that policing and prosecuting tactics at the time weren't effective, regardless of whether that was a result of racial bias. Ultimately, Steve Brown, the Seattle Police Department's narcotics captain at the time, posed a question that led to LEAD's creation: What do you propose we do instead?

"We were coming at this possibly for different reasons but with the same degree of commitment to ending a stupid—a really stupid—era in American history," Daugaard says.

"In most cities there is a population of very high-rate, low-level repeat offenders," explains David Kennedy, a professor at the John Jay School of Criminal Justice in New York. "There's a heavy overlap between these folks, and drug and alcohol problems, [and] mental illness."

While enforcement-based approaches, such as incarceration and probation, are appropriate for some, Kennedy says, when people seem to become "immune" to punishment, continuing to punish them is ineffective and inefficient. For evidence of this we need look no further than the regularity with which they commit low-level crimes: "If what we were doing was working, they would not be high-rate repeat offenders," he says.

LEAD's success using case management that does not require abstinence to reduce arrests came as no surprise to Ron Jackson who has been in the social services provision field for 30 years*. "I mean if you look around [and] see a homeless, single adult, that typically means that either they're addicted and/or mentally ill, and in many cases it's both of those," he says. "Expecting them to pull themselves up by their own bootstraps is just ludicrous."

Another local man named James, who was sober for 76 days when we met—the longest he'd gone without using in years—could be in a very different place in his life had LEAD existed a decade ago. The black 31-year-old has been homeless in Seattle for over eight years, and addicted to methamphetamine. He was arrested for trespassing years ago, he said, just the kind of homelessness-related offense that can connect individuals to case management today.

Regardless of whether a crime has been committed, LEAD police officers—those in the department who are trained in and implement the program—can refer low-level offenders to case managers before any arrest is made, allowing the individual to evade the barriers that come with an arrest or conviction on their criminal record.

Discretion as to which low-level offenders are offered participation in the diversion program is left to law enforcement officials. There are roughly 320 participants in Seattle's program so far, many of whom are referred not as an alternative to arrest but through "social contact referral," an avenue designed to allow law enforcement officials to refer individuals they think would benefit from the program.

These people are given 30 days from the referral to enroll in the program, after which a warrant is issued for their arrest. (According to Daugaard, over 90 percent of those referred to LEAD in Seattle enroll.) If they do choose to participate, individuals are asked to create a list of goals, which the case manager generally supports, financially and otherwise. Participants' goals range from reconnecting with estranged family members to receiving job training. But unlike many pre-trial diversion programs that take place within drug courts, LEAD participation is not contingent on being—or even aspiring to—abstinence from drugs. Examples of support include housing, meals, clothing, job training, help with civil legal matters such as Medicaid or disability benefits enrollment, rehab and methadone treatment, and a range of recreational activities, like a gym membership or art supplies, that case managers say help quell drug dependency.

"We like to think of it as the bridge you cannot burn," Gale of Evergreen Treatment Services says, referring to the participant–case manager relationship. Once enrolled in LEAD, the participant is eligible indefinitely as long as they don't end up in drug court and aren't sentenced to prison for a year or more. Participants aren't required to meet goals or reduce drug use, but only to engage with caseworkers in some way.

The program's use of a "harm-reduction model," where abstinence is markedly absent from the conditions required to receive services, is a central component of LEAD. Some elements of the public health approach founded in the 80s may sound familiar thanks to needle exchange programs and the use of designated drivers. Harm reduction is centered around acceptance of licit and illicit drug use —"a part of our world," as advocates say—and aims to minimize harmful or negative effects on the individual and the community. Lately, the approach has gained traction as largely white, suburban communities search for ways to reduce heroin overdosing.

"The goal in drug court is, 'Are you drug-free?'" explains Dan Satterberg, Seattle's prosecuting attorney. Treatment programs in drug courts require abstinence and are offered after the arrest and booking has been recorded. If the individual has a "dirty" urine analysis—random testing is often part of the program—they are sent to jail. But public health and criminal justice reform advocates argue that relapse when reducing or eliminating drug use is likely, and "does not mean that treatment has failed," as noted by the government-funded National Institute on Drug Abuse. Satterberg says the emphasis in LEAD is instead placed on getting people off the street and committing fewer crimes, which he believes is working. "If you try to help people on the margins of society, it turns out you have better luck than if you punish them," he says.

A prominent homeless encampment, or village, in Seattle

King County Metro Police Captain Marcus Williams and his colleagues knew a large majority of the "frequent flyers" in the jail system, now LEAD participants, before the diversion program began. The program gave him a chance to offer help for the drug dependency, psychosocial illness, and homelessness issues he saw long ago. "I think it's really changed the attitude of police [downtown] as far as how do you best deploy your resources," he says. "Do you spend your time continuing booking people in jail for small offenses, or do you try and engage them in something different than what you've been doing for a long time that isn't working?"

The culture change hasn't gone unnoticed among Seattle's most vulnerable citizens.

"None of our clients—the people sleeping on the street—had much experience with the cops helping them," Daugaard says. The idea that an officer would ask if you wanted help, and would then take you to a case manager and not a jail cell was, for them, unprecedented, she says. "People were very skeptical of that." So skeptical, in fact, that some who witnessed the police diverting a LEAD participant by opting not to make the arrest suspected they were confidential informants for the cops.

In Santa Fe, New Mexico, LEAD has been ongoing since last spring and primarily targets opioid users. New Mexico has seen one of the highest rates in the nation for unintentional overdose deaths for two decades, about a third of which were caused by heroin. But the state has seen a sharp rise in the number of deaths due to opioid pain relievers such as morphine and oxycodone.

Unlike in Seattle, LEAD participants in Santa Fe are largely Hispanic, the majority of them young women, and "marginally housed," which is to say lacking a stable home of their own but finding places to stay with friends or family, according to Emily Kaltenbach with the Drug Policy Alliance in Santa Fe. Social contact referrals are a crucial avenue for many—nearly half of the participants accessed services this way. An evaluation of the program is underway, but Kaltenbach expects it to show reduced recidivism, which would save the city money since it currently has a contract with the county jail to pay per bed.

Still, it's not what Kaltenbach argues would be best from a public health perspective. "Ideally it would look like Portugal, where all drugs have been decriminalized and problematic drug use is treated as a health issue and not a criminal one," she says, pointing to the policy the country adopted in 2001 when it decided that, after decades of waging a war on drugs, individuals found with any drug would be sent to a team of a doctor, a lawyer, and a social worker for treatment or a minor fine and no penalty otherwise. LEAD, she says, is as close to the Portugal model as American has gotten to date. "Although it still resides in the law enforcement criminal system, it's at least considered to be treated as a health issue pre-booking, so we're eliminating the entry into the criminal justice system."

Albany, too, is set to begin the pre-arrest diversion program after help from Kaltenbach and others at the Drug Policy Alliance. Like those Seattle and Santa Fe, the New York capital's program would be partially funded by private foundations, but will also be supported by the Affordable Care Act, a.k.a. Obamacare.

All three cities implementing LEAD are in states that have expanded Medicaid, critical to the program's affordability. "That is the key in making a lot of this happen," explains Steve Krokoff, former police chief in Albany and chief of police in Milton, Georgia, a suburb of Atlanta. He says that having the insurance in place makes staying on medication for mental illness, for instance, much easier, and the individual in turn is less likely to commit a crime related to their illness.

This month, Atlanta's city council will vote on whether to establish a committee of stakeholders to design a pilot LEAD program of their own. But funding sources remain uncertain. Atlanta Police Department Deputy Chief Joseph Spillane says the best-case scenario is one where a non-profit organization "takes the lead" and secures funding for the social service resources and case management support.

"The resources have to be there for us to divert them to," he says. And with state leadership historically opposed to Medicaid expansion, the poor, homeless, mentally ill and/or substance addicted population LEAD advocates want to target in the city will be hard-pressed to secure the support the diversion program is based on.

Some things change faster than others.

Follow Camille Pendley on Twitter.

*Correction 12/2: An earlier version of this story said Ron Jackson had been receiving rather than provisioning social services.