Diversion is a Win for Public Safety: Stop Prosecuting Petty Crimes

Diversion is a Win for Public Safety: Stop Prosecuting Petty Crimes

As a former community prosecutor in Oakland, and as a retired sergeant with the San Francisco Police Department, we are deeply invested in community safety. That requires that we identify and foster solutions to the criminal justice system’s many fundamental issues and flaws. From our experiences on the front lines, continuing to prosecute certain drug crimes and crimes of poverty are clearly failed strategies. We should instead divert people to resources and non-carceral support systems.

Community-based support and compassion, therefore, are a necessity of life, helping us grow so we can become a better version of ourselves. Fundamentally, prosecuting petty crime wastes our scarce resources. Convictions and incarceration drive people further down a self-destructive path that makes them more likely to continue committing crimes, compromising public safety. Our justice system should follow the data and divert people who are better served by community and health-based support systems.

Low-level drug arrests are an instructive example of how carceral approaches cause more harm than good. Prior to Oakland’s decriminalization of cannabis in 2004, thousands of residents had their lives destroyed by minor arrests for cannabis possession. This strategy ultimately failed to reduce cannabis use. It did, however, leave people with criminal records that made it hard for them to find gainful employment, access student loans, receive food assistance or find stable housing.

The consequences of over enforcement of low-level nonviolent crimes forced people to get by with under-the-table work, including selling drugs. Their children were forced to deal with the destabilization of their family lives and the ensuing poverty, increasing the likelihood that they themselves would turn to crime as one of the only viable options to survive. As a result of these prosecutions, the individuals charged and incarcerated for petty crimes were more likely to turn to crime to make ends meet.

Critics of diversion often voice concerns about public safety. However, evidence shows that prosecuting petty crimes is counterproductive to public safety. An analysis of almost 70,000 nonviolent misdemeanor cases across Greater Boston — such as drug possession, sex work, or loitering — showed that when Suffolk County District Attorney Rachael Rollins declined to prosecute low-level misdemeanors, the arrested individuals were 58 percent less likely to commit another crime in the following two years than comparable individuals who were prosecuted. Researchers concluded that the time spent in the criminal justice system likely disrupted the person’s work and family lives, making the individuals more likely to commit crimes.

In Baltimore, States Attorney Marilyn Mosby enacted a policy to not prosecute offenses such as drug possession and sex work. Over an 18-month period, the policy led to fewer new low-level drug and sex work arrests, almost no re-arrests for serious crimes for those who had charges dropped, and fewer 911 calls. These new, compassionate policies did not result in increased reported crime or public complaints.

Prosecuting low-level offenses also wastes time and resources that could be used to address legitimate threats to public safety in an evidence-based way. After all, almost eight in every 10 arrests made are for nonviolent misdemeanors, and a single case takes on average almost six months to prosecute. Putting people who use drugs or who are experiencing poverty through the criminal justice system for non-violent offenses has not been shown to transform their conditions – in fact, criminalization itself often worsens them.

Countless people who end up with petty misdemeanors are often struggling with an unmet need, from substance use disorders to lack of housing. That is why district attorneys in cities beyond Boston — such as Manhattan, Philadelphia, and Baltimore — are declining to prosecute many low-level offenses in the name of steering these individuals toward better outcomes without criminal charges and the life-long collateral consequences that come with them.

District Attorney Pamela Y. Price has the opportunity to do the same for Alameda County. Rather than perpetuating punitive measures, we should connect people to evidence-based rehabilitation programs and community-based services that address the underlying causes of nonviolent misdemeanor offenses. By providing individuals with the necessary tools and resources to overcome their challenges, we empower them to become productive members of our community.

Giving people meaningful opportunities for employment, education, and healing encourages them to move upwards and onwards with their lives, reducing the frequency or likelihood of recidivism. Declining to prosecute low-level offenses, therefore, can be a monumental win for the justice system and public safety by freeing up prosecutorial resources to seek justice for the victims of violent crimes in our communities.

Sgt. Carl Tennenbaum (Ret.) served for 32 years with the San Francisco Police Department, including roles as an undercover narcotics officer. James Anthony was an award-winning Neighborhood Law Corps Attorney in the City of Oakland.