Philadelphia District Attorney Larry Krasner has long argued that people should not be incarcerated for drug addiction.
Now he’s putting that philosophy into action. His office has quietly launched an interim version of an unprecedented “diversion” program, in which prosecutors simply withdraw charges for those who show proof they’re in drug treatment.
“We’re on the cusp of sending every single case involving mere possession of drugs to diversion,” Krasner said in an interview. “We want to get people into treatment to get at underlying problems to stop criminal behavior. This is what all experts are telling us is the better way to go about this ... under a public-health analysis and, frankly, a public-safety analysis.”
That’s been Krasner’s vision for some time. But the move to actually begin diverting almost all drug-possession cases from the criminal justice system received a jump-start from a surprising source: the Philadelphia Police Department, whose forensics lab was, as of July, overwhelmed by a backlog of 37,000 unfulfilled orders for analysis of seized drugs. That presented a big obstacle to the prosecution of major drug crimes, let alone low-level possession cases.
The district attorney’s effort is a low-tech but radical shift from previous approaches in Philadelphia, where diversion programs have been selective, and limited to those with few or no previous convictions; have exposed defendants who fail out of treatment to consequences including criminal convictions and jail or prison time; and have often required the payment of hundreds of dollars in court costs.
Since Krasner took office, drug-possession convictions excluding diversion programs are down 45%, or about a thousand cases a year. Going forward, the broader diversion effort could impact about 230 people each month who are arrested for drug possession, according to Mike Lee, supervisor of the diversion unit. Many of these cases would have been ineligible for diversion previously because of criminal records. “It allows us to correct some of these inequities,” Lee said.
Krasner’s diversion plan seems destined to draw criticism from both those who believe the justice system must hold people accountable and those who argue that further criminalizing those in addiction does vast harm and little good.
But on Monday morning at Philadelphia’s Stout Center for Criminal Justice, George Myers, 60, of Germantown, sighed with relief as his minor drug case was withdrawn. “A whole lot of relief,” Myers said, leaving the courtroom.
In May, Myers was arrested after police said they saw him making a purchase and found a few pills in his pocket. With a decades-long record of drug cases and other convictions, he would never have qualified for other diversion programs. Instead, he would have expected a couple of years’ probation. He was already in a treatment and job readiness program at the time of his arrest, he said. “This is better — much better" than the old way of doing things, he said. "They give you another chance to get it right.”
Under the initiative, only those who refuse to go into treatment would face prosecution. According to the district attorney’s public data dashboard, 71% of the more than 3,600 drug-possession cases resolved this year have been withdrawn, diverted or dismissed.
The Defender Association of Philadelphia has welcomed the public-health approach. But the ad hoc rollout has resulted in some frustrations, as prosecutors’ offers vary from one case to the next, according to John Gross, the association’s director of policy and practice. In some cases, he said, prosecutors have offered to allow drug defendants who refuse treatment to plead guilty to disorderly conduct, deals some judges have rejected as “legal fictions.”
Krasner acknowledged that process is a stopgap, accelerated by the inability to get the analysis necessary to prove in court that any seized substances are in fact illegal narcotics.
The backlog in drug tests, first reported by WHYY in August, had been exacerbated by increased demand for testing associated with the opioid crisis and the prevalence of synthetic drugs like fentanyl that can’t be identified with field tests. That coincided with a sharp reduction in funding for the overtime work previously covered by proceeds from civil asset forfeitures. The practice of seizing and selling off property connected to drug arrests was dramatically curtailed as a result of a civil rights lawsuit settled in 2018.
Dr. Michael Garvey, who heads the police Office of Forensic Science, said newly improved communication protocols with the District Attorney’s Office have helped his lab prioritize its work. Currently, Garvey said, there are 1,142 cases pending or in process, 884 of which are considered “backlogged” at 30 days or older.
Under the district attorney’s plan, the need for testing should decline dramatically. The end goal is to start all possession cases on a diversionary track, connecting defendants to court-accredited treatment providers.
But the logistics of formalizing that shift have been challenging, said Lyandra Retacco, supervisor of the charging unit.
“What we’re going for here is a real structural change," she said. “We just have to build it.”
The initiative follows the rollout of a pilot Police-Assisted Diversion program, which is now running out of three police districts, including areas of North Philadelphia, Nicetown, and Kensington, as well as the Citywide Vice unit. Since December 2017, 478 people have been diverted from arrest for drug use, prostitution, and other low-level offenses and connected to peer specialists, who help them access community-based treatment and other services.
The program is still being evaluated, but Kurt August, the program manager, said it’s shown early success — and if it can be scaled up would likely provide a better alternative to diversion months later in the courthouse.
“Diversion leads to an immediate service connection, instead of sitting in handcuffs in the back of a police wagon, waiting several hours, and potentially going through early onset withdrawal that may complicate their willingness to go into treatment,” August said. “We’re able to capitalize on that motivational moment.”
Some are skeptical of these diversion efforts.
“If someone’s been in and out of treatment 10 times and been arrested 20 times on drug possession, that’s probably not going to work," said Stephen Belenko, a Temple University criminal justice and psychology professor. “The coercion of the court can actually help people get through treatment and recover, with the incentive of having charges dismissed."
But given that many people in diversion programs, such as drug-treatment court, fail and then face severe consequences, Northeastern University law and health sciences professor Leo Beletsky said, a better approach would be to not arrest people for drug use in the first place.
“If you’re addicted, going to jail is a known disruptive event that leads to all kinds of harm, including, most notably, a really high risk of overdose,” he said.
He said prosecutors around the country are experimenting with such options at arrest, at charging, or in jails.
“They are trying to figure out ways they can expand these kinds of programs while also minimizing the public-relations damage," Beletsky said. “We need to meet the system where it’s at, and where it’s at is, a lot of people now are entering the system, and we need to create off-ramps to get them out as harmlessly as possible.”