The future of drug diversion programs could leave the courts out entirely

Beth McCann and Helen Morgan, the two candidates for Denver District Attorney, both said they support more money and new approaches for diversion programs.
7 min. read

The kids who come to Angell Perez after being caught with drugs at school get a second chance to avoid a criminal conviction and keep their lives on track. But before that second chance, there's the arrest, the handcuffs, the ride in the back of a police car, the booking, the court appearance.

"That carries a lot of trauma and negative outcomes," Perez said. "We're saying, 'Let's avoid all that.'"

Perez is the executive director of the Victim Offender Reconciliation Program, which uses restorative justice practices to work with young people. Her organization is trying to get schools to agree to a new approach, calling them first and leaving the police and courts out of the picture.

It speaks to how broad the consensus is that the War on Drugs has failed that both of the women running to be the next Denver district attorney largely agreed with Perez, at least in theory.

Perez, Dr. Mike Nerenberg of Access Point Pueblo, state Rep. Beth McCann and Chief Deputy District Attorney Helen Morgan participated in a panel discussion Friday on diversion programs as part of the Art& event. It was a daylong series of performances, exhibits, lectures and discussions that combined art and civic and social issues.

The discussion was moderated by Art Way of the Drug Policy Alliance, which works to change drug laws in ways that are "grounded in science, compassion, health and human rights."

"Diversion" covers a range of programs that allow nonviolent offenders to go through treatment instead of going to prison, but most diversion programs hold the threat of more serious charges and sentences over offenders' heads to encourage compliance. That approach was once considered ground-breaking, but now it's coming under more scrutiny.

Nobody on the panel wanted to stand behind a drug policy based on criminalization.

"Just so you're clear, we're both very supportive of this program," Morgan said in response to a challenging question from Nerenberg about whether she or McCann have heard of programs as effective at reducing drug-related crime as the Angel Program in Gloucester, Massachusetts. That city reported a 30 percent decrease in property crimes, according to Nerenberg, when the police department started offering treatment to any person who came into the police station, handed over their drugs and paraphernalia and asked for help.

If anything, Gloucester doesn't go far enough, Morgan said, because it's not open to people with open warrants. That would exclude too many people in Denver who would benefit.

Morgan is running for Denver district attorney as an independent. McCann, a former deputy attorney general and manager of safety under Mayor Wellington Webb, won the three-way Democratic primary in June.

Both have said they would make increasing diversion, particularly for juveniles, a top priority.

Morgan started one of the first drug courts in the nation in the 1990s during a time when possession of a small amount of heroin was a class three felony, on par with aggravated assault, attempted second degree murder and sexual assault.

At the time, drug cases represented 30 to 40 percent of all felony filings, Morgan said. And despite 20 years of evolving views on drugs, crime and public health, that's still the case.

"We are the least equipped, most expensive system to deal with addiction, and yet we have most of the addicts," Morgan said. "Because I'm criminally justice involved, I can get people into treatment because I have better funding than people who are not criminally justice involved. ... The good news is we're collaborating with agencies. The bad news is: Why do you have to come through our door to get the treatment we should be able to access anyway?"

People who participate in drug court but make mistakes along the way can still end up with a record, and that can have lifelong consequences that keep them in the system, the participants said.

Perez said the issue is deeply personal for her. Both of her parents served time in prison related to being drug addicts. She was able to overcome the fallout of their incarceration because other adults invested in her, but some of her siblings were not as fortunate. Her parents also continue to suffer decades later.

"My mother was arrested in the 1980s for her heroin addiction and to this day she struggles financially because she cannot get a job," Perez said. "She should be on the verge of retirement, and she lives in poverty."

Nerenberg pointed to the Law Enforcement Assisted Diversion or LEAD program in Seattle, which essentially created a controlled study by declaring certain "green" days and connecting people found with drugs on those days to services instead of prosecuting them. Four years later, the people connected with services had a 60 percent lower re-arrest rate than those who were charged. And that was without the threat of a deferred judgement hanging over them.

"That's the future of drug diversion. That's hopefully where we're going," Way said. "You have to recognize there is a certain amount of de facto decriminalization that goes on with these programs because the person is not charged for what they have in their pocket."

Some cities are starting to follow this model, but there continues to be resistance.

McCann said that when she was Manager of Safety during the Summer of Violence, she helped create programs that took teenagers out after curfew to recreation centers and connected them to social workers instead of arresting them. Those programs reduced juvenile crime 20 percent in a year.

"I remain hopeful that if we put commitments and resources into these efforts, we can make a difference," she said.

In Denver, Perez said brown and black teenagers continue to feel a disproportionate impact despite marijuana legalization. Possession charges for people of color who are younger than 21 are much higher than they were before full legalization.

"People of color continue to carry the burden of inequity and capitalism," she said. "... I was all on board (with legalization) because it meant decriminalizing marijuana for a lot of brown and black young men who are still locked up for the same thing that now rich, white men are coming to my city and benefiting from. We didn't think about some of the consequences that were going to come."

Nerenberg said most diversion programs still rely on an abstinence model that works only for a small minority of addicts. At the same time, many people charged with possession are not addicts but have to go through treatment to avoid more serious charges.

"People have always done drugs," he said. "We've done drugs since we lived in the caves. The idea of harm reduction is what can we do to mitigate the harms."

Way said the Drug Policy Alliance wants to see treatment focus on the people who are on the "chaotic" end of the spectrum, hurting others and committing crimes due to their addiction, while offering education to other users.

"Upper middle-class white people have enjoyed a public health approach to addiction forever," he said. "It's only the poor white and the black and brown communities that experienced the drug war ... We just want to level the playing field."

Assistant Editor Erica Meltzer can be reached via email at [email protected] or

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