By Lars Trautman and Jonathan Haggerty
Handcuffs close about a person’s wrists and the few, simple words “you are under arrest” are spoken as the individual is placed in the back of a police car. It is a scene that plays out once every three seconds in the United States and sets into motion a criminal process that exhibits at times all of the control and potential for damage of a runaway locomotive. Indeed, regardless of whether a murder indictment or an ordinance violation spurred the arrest, the immediate aftermath is the same. The individual loses their freedom and gains a new entry in their criminal history, while the officer must spend hours transporting and processing the individual with the specter of additional court time hanging over the future. And, while arrest is warranted for many of the more serious transgressions, it is an ill-fitting and disproportionate response to myriad other situations. Yet, traditionally, the only other option officially available to officers is to do nothing.
The shortcomings of this approach have not been lost on many law enforcement leaders and other crisis first responders, and in recent years, police departments from Seattle, Washington to Gloucester, Massachusetts have instituted new strategies and initiatives meant to break this old paradigm and present their officers with options beyond the binary choice to arrest or take no action. Operating under a variety of labels that usually reference ‘diversion’ in some form, these efforts have ranged from actively searching out vulnerable members of the community and connecting them with services to de-escalating potentially criminal encounters through citations or treatment opportunities. Often, it has meant law enforcement officers working in concert with other first responders; in some instances, non-law enforcement personnel may direct a response themselves—indeed, for crises without a criminal justice component, this can represent the optimal response. It has also involved turning to a set of independent crisis response procedures, such as protective custody or citations in lieu of arrest, that entail a noncriminal or deescalated enforcement response and can operate as part—or instead—of a more comprehensive diversion program. Although these strategies are often locally designed and implemented, they do not operate in a legal or political vacuum. Instead, localities are subject to a web of state laws and regulations that directly bear on their ability to institute pre-arrest diversion and other crisis response strategies effectively. Laws that grant local officials noncriminal responses to crises can propel diversion efforts or provide alternative, supplemental crisis responses. Laws that require criminal responses or otherwise circumscribe when and how non-law enforcement responders are able to intervene can impede them. In light of this, the present study dives into these problems by reviewing and analyzing the primary statewide barriers to and accelerants of pre-arrest diversion and crisis response strategies. It begins by providing an overview of pre-arrest diversion strategies. It then delves into five categories of law or regulation that most directly affect these strategies and often serve as the basis of fully-fledged crisis responses in their own right: emergency mental health hold laws, protective custody statutes, citation authority, substance abuse Good Samaritan laws and ambulance transport destination rules.
R STREET POLICY STUDY NO. 187 November 2019
Washington, DC: R Street, 2019. 34p.