Bar News Masthead

April 30, 2021

By John M. Bassett

 

Court diversion advocates across the country say diversion saves money and reduces crime. But in New Hampshire, and nationally, the data to support this claim is hard to find.

Without more data collection and analysis, experts warn that it will be difficult to prove to funders and the public that diversion is as effective as advocates say.

In NH, data not the top priority

How many adults and juveniles go through New Hampshire’s court diversion programs each year, and how effective are these programs at reducing crime? Even though New Hampshire’s first diversion program was started more than 40 years ago, these questions are still difficult to answer.

Over the last four months, the Granite State News Collaborative looked for data regarding pre-trial court diversion programs for juveniles and adults in New Hampshire, focusing on basic statistics such as the number of participants handled annually and how many of each programs’ participants stayed arrest-free after finishing diversion. But for both adult and juvenile programs, there were no comprehensive datasets available.

Currently, diversion programs in New Hampshire are not required to track or publicly report data about their services or outcomes.

Gathering data on adult diversion is especially difficult because there is no formal accreditation process for these programs. This made it difficult for local officials in some parts of the state to say with certainty whether specific programs should be considered diversion, as was the case in Manchester.

While some recognized adult diversion programs do keep records – for example, the Merrimack County Diversion Center shared data covering some 9,600 participants and 11,100 diversion cases going back to the late 2000s –  this was the exception, rather than the rule. Some parts of the state, like Nashua, do not offer adult diversion at all, while programs in other parts of the state, like Coos and Cheshire counties, say their programs are too new to have collected any meaningful data at this time.

Even some established programs don’t yet have meaningful statistics. Strafford County Attorney Tom Velardi says that his county offers adult diversion, but that these cases are currently underreported in his office’s database. He and his staff are now manually adding old diversion cases to the system.

Velardi added that even if all the cases were added, it would be difficult to figure out who on average was actually using diversion – for example, in terms of race, ethnicity, or age. “We don’t track that kind of data,” he said, “so I would have to go into each case and pull offender identifiers.”

For juvenile diversion, more comprehensive and standardized data is available, but only for a handful of recent years.

Data requests from the Granite State News Collaborative to individual diversion programs and to DHHS were re-routed to the New Hampshire Juvenile Court Diversion Network, a Concord-based nonprofit that oversees juvenile program accreditation across the state and collects data from its member programs. In recent years, the Diversion Network received most of its revenue from government grants, including from NH DHHS.

When it comes to accreditation for juvenile diversion, each state sets its own standards. But practitioners trying to formalize their programs have many existing models to draw from, including those recommended by national advocacy groups like the National Association of Pretrial Service Agencies, or NAPSA, a professional association for diversion practitioners. Diversion Network Board Chair Nicole Rodler, says that her organization took the national standards into account when designing New Hampshire’s accreditation process.

Even though data on juvenile justice in New Hampshire is protected by confidentiality laws, the main reason why it’s difficult to know how many juveniles use these programs is that the Diversion Network’s data collection policies are still evolving.

Currently, the Network requires each of its member programs to report how many participants it serves who have been formally charged, including those who are facing juvenile delinquency charges. But it does not require its programs to report the number of participants who were referred without formal charges. This could happen for many reasons, but often it’s because the individual committed a low-level offense, like a violation.

As a result of this policy, which was instituted a few years ago, Rodler says that her organization does not know the exact number of juveniles that its programs serve. Rodler did say that since 2012 an average of at least 290 juveniles facing delinquency charges have completed the programs each year.

Rodler says the Network instituted the new policy to help the Network standardize its data. The previous policy of lumping delinquency and non-delinquency cases together had made it difficult to assess which services were working well and which were not. Rodler also says that the change brings their data more in line with the statute that originally established diversion, RSA 169:B-10, which focuses on delinquency.

Diversion Network Coordinator Alissa Cannon added that the top-line results of a 2017 recidivism study that they commissioned show that offenders who went through diversion between 2012 and 2017 were less likely to re-offend in the years after diversion, as compared to offenders who went through the traditional court process.

“The data indicate that the NH Accredited Diversion Program reduces recidivism rates by more than 50%, saving taxpayer dollars and improving the prospects that a young person who completes the program is able to be redirected and given the tools they need to make better choices in the future,” Rodler and Cannon said in a letter to the GSNC.

The Diversion Network does not have recidivism rates for the years since 2017, but according to Cannon they have recently begun the process of calculating them.

The Diversion Network is currently reviewing its data collection policies as it goes through the NH Center for Excellence’s Service to Science Program, which helps local substance use intervention programs improve how they evaluate their own effectiveness. Service to Science is based on guidelines developed by the US Department of Health and Human Services.

 

Lack of organized data reflects national trends

Even though many diversion programs across the country collect data, NAPSA President-Elect Spurgeon Kennedy says much of what’s collected is not useful.

“Data collection is a problem throughout criminal justice, not just with diversion programs,” Kennedy explains. “Can I take that information, create a data set, give it to someone who knows what they’re doing and have them tell me whether or not we’re meeting our outcomes? The answer for most jurisdictions, unfortunately, is no.”

To varying degrees, this seems to be the case with New Hampshire’s neighbors as well.

Diversion experts in Maine and Massachusetts say their states both have small pockets of data but no comprehensive data or analysis available.

According to Michael O’Keefe, Massachusetts District Attorney for the Cape and Islands, the vast majority of district attorneys run court diversion programs, but collecting data on those programs is frequently an afterthought.

“Now this whole business of what kind of data is generated from those programs is also a big issue today, but the majority of Mass. district attorney’s don’t keep a lot of data. We’re interested in helping these kids, not generating data.”

In Maine, district attorney Jonathan Sahrbeck from Cumberland County described a similar situation in his state.

“Quite frankly I don’t know if there’s any data that’s collected on a statewide basis,” Sahrbeck said.

Deputy Director Shawn LaGrega from Maine Pretrial Services, Inc., which provides diversion services throughout Maine, agreed that no statewide data sets exist, adding that this lack of standardized collection is the primary reason why data is currently not considered during the policymaking process, even though he thinks it should be.

“There’s no single cohesive data dashboard that allows the different justice system partners to input that data and to provide any sort of meaningful output to be used in policy decisions,” LaGrega says. “There are a lot of really neat little pockets of data that are individually housed within different organizations, but there’s no central repository to allow for what I think is a need for comprehensive data analysis to drive policy decisions at the state level.”

Sahrbeck also noted that Maine has a related program called deferred dispositions that addresses some of the same problems as diversion. Sahrbeck explained that these deferred dispositions, which are known in Massachusetts as continuations without a finding, allow the defendant to plead guilty and “take responsibility for [the offense] but then if they get through their probationary period, the conviction will be dismissed from their record.”

Last month, the Muskie School of Public Service at the University of Maine published a report that describes how deferred dispositions are used across the state.

In northern New England, Vermont is an outlier. The state’s Attorney General does collect basic data about diversion services, including the number of people that enter and complete diversion in each county every year. This data is publicly reported to the General Assembly, and was most recently submitted on January 5th.

But Derek Miodownik, Restorative and Community Justice Executive at the Vermont Department of Corrections, says that even though Vermont’s programs generate a lot of data, there is still room for improvement.

Miodownik breaks down Vermont’s data into three types – describing how much programs do, how well they do it, and how much better off people are as a result.

“I’d say that we generate a lot of data about ‘how much,’ but we really don’t have a system per se that quantifies the ‘how well’ and the ‘better off’ measures. That’s probably the single biggest priority among our 18 community justice centers. We need that systemic capacity,” he says.

 

Achieving their mission

Several national organizations are helping local diversion programs address this type of issue. In 2015, NAPSA and the National Institute of Corrections published a guide suggesting a wide range of data measures that diversion programs could focus on to measure their performance and demonstrate their value to the public. The Center for Effective Public Policy, a Maryland-based think tank, has also published guidance for diversion programs on what data to collect.

While experts agree that more rigorous data collection is needed in many states, they also caution against prescribing one-size-fits-all solutions.

“That idea of being able to identify effectiveness is really, really a complex question,” says Mary West-Smith, a Professor of Criminology at the University of Northern Colorado. “A lot of it depends on what the goals are.”

For example, many programs – like those in the NH Diversion Network – focus on reducing crime. So recidivism becomes the standard outcome variable, even though this may be too narrow to accurately measure diversion’s impact.

“It’s a really clumsy measure,” West-Smith says.

Instead, she says the focus shouldn’t be on whether someone re-offends, but on whether their level of offense is going down over time – for example, dropping from delinquency to a violation-level offense.

“Are they [getting worse] or are they [getting better] in terms of their offending? That is actually a much more interesting question to ask,” West-Smith says.

This is especially true because programs today are offering an increasingly broad range of services under the banner of diversion.

According to Mark C. Stafford, Professor of Criminology at Texas State, the ever-growing list of services associated with diversion has caused a lot of confusion over the last forty years about what “diversion” actually means – and this confusion is only getting worse.

As a result, he says that systematically assessing diversion programs today is difficult, if not impossible.

Experts agree the solution to this problem is more careful and rigorous research.

“We absolutely need more research into this stuff,” West-Smith says. “We really need to identify what are those program components that seem to be most effective.”

Until then, in New Hampshire and in many other states around the country, NAPSA warns that programs will struggle to achieve their mission, improve their business decisions, and illustrate pretrial diversion’s value to the public.

 

This article is part of a multiyear project exploring race and equity in New Hampshire produced by the partners of The Granite State News Collaborative. For more information visit collaborativenh.org. Articles in this series are being published as a public service for NHBA members to keep them informed of important issues in the state. Any opinions discussed in these articles are those of the author, and not those of the NHBA.