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San Francisco has pretrial diversion programs that are the most ineffective in the state. What’s up?

Diversion Programs for Criminals are a Disaster

Frank Noto
Frank Noto

We all know something about the importance of the SFPD, DA, Public Defender and Superior Court in the criminal justice system. But few know much about the role played by the City of San Francisco’s Collaborative Courts and the non-profit Pretrial Diversion Project or (PTD). These are programs that provide drug treatment, behavioral health treatment and education, and community support to criminal suspects, and also include young adult court.

PTD implementation

PTD implementation is unique to San Francisco, in that it allows individuals with multiple offenses and long criminal records, including felony arrests, to participate in the program. Once the defendant completes the program, criminal charges can be dismissed. Most other jurisdictions implement diversion programs designed to exclude repeat offenders, but not San Francisco.

quotes

Judge Patrick Thompson subsequently denied a motion to detain in jail an alleged drug dealer named Jefferson Arrechaga, despite the fact police found the defendant with over half a kilo of drugs (more than 1.1 lbs.) on him. That haul included 170.8 grams of fentanyl, enough to kill as many as 85,400 people.”

Unfortunately, our diversion programs are a catastrophic failure. Those diverted for felonies have higher rates for re-offending than those who are never diverted and go through the normal court system. That is the exact opposite effect of the intention of the program.

That is the inevitable conclusion after a close read of California Policy Lab’s (CPL) 2020 study entitled “Alternatives to Prosecution: San Francisco’s Collaborative Courts and Pretrial Diversion.” Their analysis reported on the City’s various diversion programs, focusing on recidivism and new arrests during diversion programs. Note that this criticism wasn’t coming from a conservative think tank with an agenda to attack San Francisco values – CPL is a progressive non-profit that supports the goals of San Francisco’s diversion program and is funded by the same foundation.

According to a 2019 law review article by Jessica McCauley and especially an article by journalist Susan Reynolds, from which much of this piece is derived, CPL’s study shows that “the program continues to show moderate success” for first-time misdemeanor arrestees given referrals. “Where it fails in reducing recidivism is in referrals for repeat offenders and felony cases,” she says.

Although no detailed explanation is provided as to why the diversion program is failing, it does indicate the program is poorly managed and reviewed. PTD programs have low requirements and are often not completed by participants.

The figures for non-enrollment and termination failures for all diversion programs are staggering, ranging from 66% to as high as 89%, according to the study. Additionally, large numbers of participants committed crimes while attending diversion programs. The program clearly does not work for repeat offenders and individuals committing serious crimes. Perhaps that is why other counties have avoided it for those populations.

Assigning traffickers to drug treatment programs is particularly problematic. Since drug gangs typically do not let their dealers sample their own wares, assigning non-addict dealers to drug treatment programs simply introduces them to potential customers, making their lives worse.

Supporters of the PTD program point to diversion resulting in lower conviction rates. But that is true by definition since charges for defendants who complete their rehabilitation program – sometimes as little as one class – are dismissed.

Whereas few other jurisdictions accept “individuals with prior felony convictions,” many in San Francisco have long criminal histories with multiple felonies. Under former DA Chesa Boudin, for example, the number of those with assault charges increased by 300 percent since such programs allow individuals to continue committing crimes with minimal consequences.

Drug Dealer Released after Arrest with Half a Kilo of Drugs?

But the recall of Boudin has not ended many abuses of the judicial process, because ultimate responsibility lies with the San Francisco Superior Court. For example, Judge Patrick Thompson subsequently denied a motion to detain in jail an alleged drug dealer named Jefferson Arrechaga, despite the fact police found the defendant with over half a kilo of drugs (more than 1.1 lbs.) on him. That haul included 170.8 grams of fentanyl, enough to kill as many as 85,400 people.

Arrechaga, arrested 14 times within a short period for these drug offenses, is a repeat offender, having been prosecuted in 2013 and 2018 for dealing drugs as well. But Judge Thompson refused to detain him pending trial. Instead, he released him to a social service program because the defendant claimed that dealing drugs was his sole form of income. This is despite the fact that the defendant was seized with $3,000 in cash, in addition to the drugs, and allegedly endangered an officer by resisting arrest.

Rather than prohibiting the Oakland resident from coming to San Francisco to traffic in drugs, the judge merely issued an order for him to stay 150 yards away from the Golden Gate and Hyde Street location where he was last arrested. And Judge Thompson concluded: “I’m going to ask that he be referred to assertive case management for assessment of programming to help identify programs that might be beneficial to him for a path forward.”

Said Judge Thompson to the defendant: “The Court was persuaded by the arguments by your defense lawyer that you want to do the right thing … and I want to give you an opportunity to do that by finding programming that will assist you.” There was no explanation why such programming was unable to turn him away from a life of crime after his previous felony convictions.

AND FINALLY, SOME GOOD NEWS ….

For October 2023, San Francisco's crime rate is down a whopping 33% compared to October of last year. This comes after a similar 34% decrease in September from the previous September. Could this be the start of a trend?

For this October, larcenies, motor vehicle thefts and burglaries are all down, among other crimes. Perhaps the combined efforts of the Mayor and SFPD to increase drug arrests (and the District Attorney to prosecute drug dealing) are having some impact, augmented by help from the Sheriff’s Department, CHP, National Guard and the federal Department of Justice.

Frank Noto is president of Stop Crime SF, a grassroots victim’s rights group dedicated to preventing crime in San Francisco and giving victims a voice.

November 27, 2023

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