See attached
Instructions
You will develop a paper that addresses the issues below. You are to use the textbook readings, unit lessons, and required unit resources in the unit to complete the assignment. Also, use your personal experience when addressing the issues below.
· Locate and briefly describe a recent police discrimination case in the United States.
· Discuss the meaning of police discretion, why it is necessary, and why it needs to be controlled.
· Identify how implicit bias may affect police discretion.
· Discuss the ways in which discretion may be controlled.
· Discuss the limitations of organizational rules and policies in controlling the discretion of officers.
· Describe the limitations of trying to control police discretion by enhancing the professional judgment of officers.
Your paper should be a minimum of two pages in length, not counting the title or reference pages. Please use APA Style when developing this assignment. In-text citations and references will be required for all sources that are used. Please note that no abstract is needed.
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The Uses and Abuses of Police Discretion:
Toward Harm Reduction Policing
Katherine Beckett*
INTRODUCTION
Although discretion is an unavoidable and ubiquitous feature of police
work, it is also the subject of significant controversy and debate. In this
essay, I first provide a brief overview of the history and evolution of police
discretion from the 1960s to today and explain how its exercise has been
impacted in recent decades by the war on drugs and the adoption of “broken
windows policing.” These policy initiatives encouraged a more muscular po-
lice response to low-level offending and had important consequences, in-
cluding the flooding of U.S. prisons and jails and the disproportionate
incarceration of people of color. Although many of those targeted in the
campaigns against drugs and disorder do not pose a significant threat to pub-
lic safety, many do contend with multiple challenges such as homelessness,
addiction, and mental illness, and, as a result, cycle repeatedly into and out
of jail. Incarceration, including short-term jail spells, often has deleterious
and destabilizing effects, which increase the likelihood that arrest and incar-
ceration will continue to occur with some regularity.
In the second half of this essay, I argue that since police discretion
cannot be eradicated, and the destructive nature of mass incarceration is in-
creasingly well-understood, municipalities would be well-advised to imple-
ment alternatives to the war on drugs and broken windows policing. Ideally,
these alternative approaches would encourage the police to respond to “dis-
orderly” behaviors that do not pose a significant public safety problem in
ways that reduce the harm that results from low-level crimes and from crimi-
nal justice involvement itself. To illustrate what such a policy framework
might look like, I describe Seattle’s Law Enforcement Assisted Diversion
(LEAD) Program, which relies on police discretion to channel people sus-
pected of minor forms of criminal wrongdoing out of the criminal justice
system and toward services with the aim of reducing human suffering at
both the individual and community levels. I conclude that programs like
LEAD that use harm reduction principles to guide the exercise of police
discretion enable municipalities to respond to low-level crimes in a way that
alleviates rather than exacerbates individual and community suffering asso-
ciated with those behaviors.
* Katherine Beckett is a Professor in the Law, Societies and Justice Program and Professor
and Clarence and Elissa M. (“Lee”) Schrag Endowed Faculty Fellow in the Department of
Sociology at the University of Washington.
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78 Harvard Law & Policy Review [Vol. 10
I. POLICE DISCRETION: AN OVERVIEW
The inevitability of police discretion was “discovered” by social scien-
tists in the 1960s. Prior to this time, the scholarly literature on policing fo-
cused mainly on administrative issues such as staffing levels and the extent
to which police organizations complied with prescribed policing standards.1
As leading police scholar Egon Bittner later put it, the surveys that were
standard through the 1950s provided little insight regarding “literal” police
work, that is, how police officers actually spent their time, the kinds of situa-
tions they most commonly encountered, and how they responded to those
situations.2
This window on the nature of police work began to change in the 1960s
as a result of the design and implementation of an observational study by the
American Bar Foundation (ABF) that focused much more on “law in ac-
tion” than on the “law on the books.” The ABF study employed ethno-
graphic methods in three field settings (Kansas, Michigan, and Wisconsin),
and its findings transformed the field of police studies. The results showed
that discretion is not aberrational; rather, criminal justice actors, including
police, exercise it at all levels of criminal justice organizations. Moreover,
the police routinely encounter both non-criminal situations and serious pub-
lic safety problems, both of which require considerable judgment beyond the
application of criminal law. Indeed, police officers were found to consider a
number of factors in addition to probable cause, including departmental
needs and practical implications, when deciding whether to make an arrest.3
Moreover, findings from the ABF study indicated that even well-developed
police guidelines could not anticipate the complexity of the situations of-
ficers often encounter; responding to these multifaceted and varied en-
counters therefore requires that police officers exercise considerable
discretion in the course of their everyday activities.
Although evidence of the ubiquity and importance of discretion in eve-
ryday police practices may seem unsurprising today, these findings opened
up new ways of studying and understanding criminal justice processes gen-
erally and police behavior specifically. As one police scholar put it,
The “discovery” of discretion, beginning in the late 1960s and
gaining momentum over the 1970s, was perhaps the single most
important event in the history of criminal justice studies. It served
to trigger a watershed of descriptive research on all aspects of the
1
GEORGE L. KELLING, NAT’L INST. OF JUSTICE RESEARCH REPORT, BROKEN WINDOWS
AND POLICE DISCRETION 22 (1999).
2
EGON BITTNER, ASPECTS OF POLICE WORK 4 (1990).
3 Lloyd E. Ohlin, Surveying Discretion by Criminal Justice Decision-Makers, in DISCRE-
TION IN CRIMINAL JUSTICE: THE TENSION BETWEEN INDIVIDUALIZATION AND UNIFORMITY 1–22
(Lloyd E. Ohlin & Frank J. Remington eds., 1993).
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2016] Toward Harm Reduction Policing 79
system and served to stake out law as a subject matter both suita-
ble to, and in need of, social scientific analysis.4
Indeed, contemporary police scholarship places discretion at the heart
of social scientific and legal studies of police work.5 Many such studies ex-
plore whether and how officer and organizational characteristics affect the
exercise of officers’ discretion;6 others seek to identify the situational factors
(such as the race and demeanor of the suspect, location of the stop, and other
contextual factors) that may influence police decision-making.7 Still others
seek primarily to assess how frequently police officers violate constitutional
standards, and why they do so.8 Whereas quantitative studies typically seek
to identify the situational, individual, and organizational factors that have a
statistically significant impact on policing outcomes, qualitative studies at-
tempt to understand how officers interpret the situations they encounter and
describe the thought-processes that shape officers’ responses to those
situations.
In addition to exploring the nature and consequences of police discre-
tion, police scholars have also debated whether and how police discretion
might be effectively regulated to reduce the influence of illegitimate consid-
erations such as suspect-race on police behavior.9 Researchers have also ex-
plored how police officers and organizations should be held accountable
when problems such as excessive use of force and biased policing exist.
Some such scholars emphasize the limited capacity of regulators to antici-
pate the complexity of the situations officers will encounter, and argue for a
more carrot-oriented approach to police regulation that draws on officers’
expertise and experience to develop flexible guidelines.10 Others emphasize
the need to develop robust and independent accountability systems in order
to ensure that officers who engage in such practices are identified and sanc-
tioned. In this approach, the hope is that such systems will not only enable
detection of police officers who engage in systematic wrong-doing, but by
eradicating such behavior, will also reform police culture over time.11
Unfortunately, many researchers have concluded that existing studies
shed little light on how police organizations might effectively control police
4 Ernest L. Nickels, A Note on the Status of Discretion in Police Research, 35 J. CRIM.
JUST. 570, 570 (2007).
5 See, e.g., BITTNER, supra note 2; SAM WALKER, TAMING THE SYSTEM: THE CONTROL OF
DISCRETION IN CRIMINAL JUSTICE, 1950–1990 (1993); WILLIAM A. WESTLEY, VIOLENCE AND
THE POLICE: A SOCIOLOGICAL STUDY OF LAW, CUSTOM AND MORALITY (1970).
6 See, e.g., Jeffrey S. Nowacki, Organizational-Level Police Discretion: An Application
for Police Use of Lethal Force, 61 CRIME & DELINQ. 643 (2011).
7 See, e.g., Jeffrey Fagan & Amanda Geller, Following the Script: Narratives of Suspicion
in Terry Stops in Street Policing, 82 U. CHI. L. REV. 51 (2015); Tammy Rinehart Kochel,
David B. Wilson & Stephen D. Mastrofski, Effect of Suspect Race on Officers’ Arrest Deci-
sions, 49 CRIMINOLOGY 473 (2011).
8 See, e.g., Jon B. Gould & Stephen D. Mastrofski, Suspect Searches: Assessing Police
Behavior Under the U.S. Constitution, 3 CRIMINOLOGY & PUB. POL’Y 315 (2004).
9 See, e.g., WALKER, supra note 5.
10 See, e.g., KELLING, supra note 1, at 33–45.
11 See Walker, supra note 5.
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80 Harvard Law & Policy Review [Vol. 10
discretion.12 Despite this lack of scientific consensus about how problematic
exercises of police discretion such as racial profiling are best deterred, recent
years have witnessed two major policy efforts to steer police discretion in
particular ways. The first of these was the federal war on drugs, which ema-
nated from national-level politicians but included a number of incentives
aimed at encouraging state and local police departments to place greater em-
phasis on drug law enforcement and to employ proactive methods to identify
and arrest drug law violators. Similarly, advocates of “broken windows po-
licing” successfully urged police departments to encourage officers to react
strongly to low-level (potentially) criminal behaviors such as panhandling or
lying on sidewalks. Below, I briefly describe how these policy initiatives
shaped the exercise of police discretion in recent years and describe the con-
sequences of these shifts. I then advocate the adoption of an alternative pol-
icy framework that seeks to redress the human suffering that underlies most
low-level criminal behavior, and to steer the homeless, drug users and sell-
ers, sex workers, and others who spend their time on the streets toward ser-
vices and away from the criminal justice system.
II. POLICY EFFORTS TO SHAPE POLICE DISCRETION:
TWO RECENT EXAMPLES
A. The War on Drugs
Because anti-crime efforts are largely a state and local affair, national
politicians who campaign on their anti-crime credentials often turn their at-
tention to drugs (over which the federal government has comparatively great
authority) once in office.13 This was certainly true for the Reagan Adminis-
tration, which assumed office in 1981 and quickly advocated increased fed-
eral involvement in the war against drugs.14 But the fight against drugs also
involves state and local authorities to a significant degree. Recognition of
this led crime fighters in the 1980s and 1990s to use legislation to encourage
police departments around the country to target drug law violators. The 1984
Omnibus Crime Bill, for example, authorized police departments to confis-
cate any assets—including cars, boats, houses, and bank accounts—they be-
lieved were acquired with drug monies, regardless of whether their (former)
owners were ever convicted of, or even charged with, a drug crime.15 A few
years later, Congress revised the program through which the federal govern-
ment provides grants to state and local law enforcement agencies, renaming
12 See NAT’L RESEARCH COUNCIL, COMM. TO REVIEW RESEARCH ON POLICE POLICY AND
PRACTICES, FAIRNESS AND EFFECTIVENESS IN POLICING: THE EVIDENCE (Wesley Skogan &
Kathleen Frydl eds., 2004); Stephen D. Mastrofski, Controlling Street Level Police Discretion,
593 ANNALS AM. ACAD. POL. & SOC. SCI. 100 (2004).
13 See KATHERINE BECKETT & THEODORE SASSON, THE POLITICS OF INJUSTICE: CRIME
AND PUNISHMENT IN AMERICA 56–61 (2004).
14 Id. at 60.
15 Id. at 162.
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2016] Toward Harm Reduction Policing 81
it the Byrne Memorial State and Local Law Enforcement Assistance Pro-
gram. This program was specifically designed to incentivize local law en-
forcement agencies to develop and expand the narcotics task forces that have
served as the foot soldiers in the war on drugs.16 Over the years, the federal
government also offered other important forms of support to local drug war-
riors, including resources, equipment, and training.17
The federal government’s effort to encourage drug law enforcement was
remarkably successful, and had important and measurable consequences.
Specifically, the number of drug arrests occuring in the United States nearly
quadrupled, from just over a half of a million in 1981 to a peak of nearly 1.9
million in 2006.18 This development most significantly affected people and
communities of color. Between 1980 and 2000, for example, the national
black drug arrest rate increased from roughly 6.5 to 29.1 (per 1,000 persons),
while the white drug arrest rate increased much more modestly, from ap-
proximately 3.5 to 4.6 (per 1,000 persons).19 Since 2006, the number of drug
arrests taking place each year has dropped modestly, from 1.9 million in
2006 to roughly 1.5 million in 2012.20 While this change represents a decline
from the height of the drug war, it also signifies an enduring commitment to
channeling significant local police resources toward drug law enforcement.
At first glance, the tenacity of the local commitment to drug law en-
forcement is surprising, as the war on drugs has become increasingly contro-
versial and many states have enacted legislative reforms aimed at reducing
the number of drug offenders sent to prisons and jails.21 Ongoing federal
support and incentives for drug law enforcement may help to explain why so
many police departments continue to wage war on drugs despite the growing
bi-partisan consensus that the drug war has been a failure.22 Interestingly,
though, another recent and controversial effort to channel police discretion
has thrived even in the absence of such strong federal support: the call for
broken windows policing.
16 See MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 73 (2010).
17 Id. at 73–74.
18
BUREAU OF JUSTICE STATISTICS, DRUG AND CRIME FACTS (2015), http://www.bjs.gov/
content/dcf/tables/arrtot.cfm [http://perma.cc/E69M-6AJ2].
19
THE REAL WAR ON CRIME: THE REPORT OF THE NAT’L CRIMINAL JUSTICE COMM’N
(Steven R. Donziger, ed., 1996).
20
FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES (2013), https://www.fbi
.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/tables/table-29/table_29_
estimated_number_of_arrests_united_states_2013.xls [https://perma.cc/TSY9-SRBG].
21 See RAM SUBRAMANIAN & REBECKA MORENO, VERA INST. OF JUSTICE, CENTER ON
SENTENCING AND CORRECTIONS, DRUG WAR DÉTENTE: A REVIEW OF STATE-LEVEL DRUG LAW
REFORM, 2009–2013 5 (2014), http://www.vera.org/sites/default/files/resources/downloads/
state-drug-law-reform-review-2009-2013 [http://perma.cc/7SPB-GAYK].
22 See, e.g., David Dagan & Steven M. Telles, Locked In? Conservative Reform and the
Future of Mass Incarceration, 651 ANNALS AM. ACAD. POL. & SOC. SCI. 266, 273–74 (2014);
Joan Petersilia & Francis T. Cullen, Liberal but not Stupid: Meeting the Promise of Downsiz-
ing Prisons, 2 STAN. J. CRIM. L. & POL’Y 733 (2015).
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82 Harvard Law & Policy Review [Vol. 10
B. Broken Windows Policing
The debate over broken windows policing has been simmering for de-
cades, and was renewed again in the aftermath of the NYPD shooting of Eric
Garner during his 2014 arrest for selling loose cigarettes. Broken windows
policing was first articulated by James Q. Wilson and George Kelling in a
short Atlantic Monthly article in 1982,23 and became wildly popular in U.S.
urban police departments in the intervening years.24 Proponents argue that
neighborhoods that fail to fix broken windows or address other manifesta-
tions of “disorder” display a lack of informal social control, thus inviting
serious criminals into the neighborhood.25 Advocates of broken windows po-
licing therefore call for a fundamental reorientation of policing, one that of-
fers city governments a broad and flexible means of regulating public spaces
and removing those deemed “disorderly” from contested public spaces,
often through arrest. Although the name of the theory calls attention to the
built environment, it focuses in practice primarily on unwanted human be-
havior—particularly that which is engaged in by “disreputable or obstreper-
ous or unpredictable people: panhandlers, drunks, addicts, rowdy teenagers,
prostitutes, loiterers, the mentally disturbed.”26 Problematic behaviors exhib-
ited by these groups are seen not as a manifestation of poverty or other
social ills, but rather as a sign of “disorder,” a cause of diminished quality
of life for other urban residents, and as a precursor of serious crime. Where
departments have embraced broken windows policing, police department of-
ficials encourage officers to consider potentially misdemeanor offenses such
as public drunkenness and panhandling as very serious matters. Unsurpris-
ingly, this focus has also contributed to racial disproportionality in jail popu-
lations, as well as fueling the incarceration of the homeless and mentally
ill.27
23 James Q. Wilson & George F. Kelling, The Police and Neighborhood Safety, ATLANTIC
MONTHLY, Mar. 1982, at 29.
24 See STEVE HERBERT, CITIZENS, COPS AND POWER: RECOGNIZING THE LIMITS TO COM-
MUNITY (2006).
25 See Wilson & Kelling, supra note 23.
26 Id. at 32.
27
KATHERINE BECKETT & STEVEN HERBERT, BANISHED: THE NEW SOCIAL CONTROL IN
URBAN AMERICA 32–35 (2009). George Kelling recently argued that “broken windows was
never intended to be a high-arrest program. Although it has been practiced as such in many
cities, neither Wilson nor I ever conceived of it in those terms.” George Kelling, Don’t Blame
My ‘Broken Windows’ Theory for Poor Policing, POLITICO (Aug. 21, 2015), http://www.polit-
ico.com/magazine/story/2015/08/broken-windows-theory-poor-policing-ferguson-kelling-
121268.html [http://perma.cc/DS8M-EPYW]. However, as Bernard Harcourt contends, this
argument is specious, as Kelling and other advocates of broken windows policing often use
their position as consultants to urge local governments to expand the police authority to arrest
through statutory reform, and because “George Kelling himself measures broken-windows
policing by the number of misdemeanor arrests performed by the police.” Bernard E. Har-
court, Broken-Windows Policing is a High Arrest Problem, THE HUFFINGTON POST (Aug. 17,
2015), http://www.huffingtonpost.com/bernard-e-harcourt-/broken-windows-policing-i_b_800
0250.html [http://perma.cc/6Z4G-SNB5].
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2016] Toward Harm Reduction Policing 83
Despite numerous empirical studies challenging the efficacy of broken
windows policing,28 the theory of crime that underpins broken windows po-
licing has achieved the status of common sense in police departments across
the United States29 and in many other countries as well.30 The reasons for its
widespread popularity are somewhat unclear, but may have to do with the
congruence of broken windows policing with the “tough” anti-crime
zeitgeist that prevailed in the late twentieth century, as well as the affinity
between the assumptions and effects of broken windows policing with the
social dynamics associated with neoliberalism.31
In addition, advocates of broken windows policing actively promoted
its adoption and implementation across the globe through their connections
to, and involvement in, consulting firms.32 Several of the most prominent of
these firms—including Giuliani Partners and The Bratton Group L.L.C.—
have aggressively promoted the “New York model” for decades. For exam-
ple, after being declared America’s “top cop” by Time Magazine in 1996,
New York Police Chief Bratton stepped down from public office and formed
his own private consulting company, The Bratton Group, L.L.C. This con-
sulting group worked for departments throughout the United States and ex-
tensively in South America, where it has advised officials on both crime
policy and urged the adoption of broken windows policing.33 Similarly, upon
retiring from the mayor’s office, Rudy Giuliani formed Giuliani Partners, a
consulting organization staffed by many of his top aides from City Hall and
former police commissioner Bernard Kerik, which actively promoted the
broken windows philosophy.34 Media stories linking the crime drop in New
York City and the adoption by the NYPD of a particularly aggressive version
of broken windows policing appear to have generated substantial interna-
tional interest in securing the advice of these and other consulting firms.35
In sum, recent decades have witnessed the emergence of (at least) two
pronounced efforts to shift police organizations’ focus toward what were for-
28 See John E. Eck & Edward R. Maguire, Have Changes in Policing Reduced Violent
Crime? An Assessment of the Evidence, in THE CRIME DROP IN AMERICA, 224–28 (Alfred
Blumstein & Joel Wallman eds., 2000); David Greenberg, Studying New York City’s Crime
Decline: Methodological Issues, 31 JUST. Q. 15 (2014); Bernard E. Harcourt & Jens Ludwig,
Broken Windows Policing: New Evidence from New York City and a Five-City Social Experi-
ment, 73 U. CHI. L. REV. 271, 282–87 (2006); Robert J. Sampson & Stephen W. Raudenbush,
Systematic Social Observation of Public Spaces: A New Look at Disorder in Urban Neighbor-
hoods, 105 AM. J. SOC. 603, 626–36 (1999).
29 Steve Herbert & Elizabeth Brown, Conceptions of Space and Crime in the Punitive
Neoliberal City, 38 ANTIPODE 755, 759 (2006).
30 See Neil Smith, Global Social Cleansing: Postliberal Revanchism and the Export of
Zero Tolerance, 28 SOC. JUST. 68, 70 (2001); Loic Wacquent, Toward a Dictatorship Over the
Poor? Notes on the Penalization of Poverty in Brazil, 5 PUNISHMENT & SOC’Y 197, 198 (2003).
31 Herbert & Brown, supra note 29, at 758–61.
32 Katharyne Mitchell & Katherine Beckett, Securing the Global City: Crime, Consulting,
Risk, and Ratings in the Production of Urban Space, 15 GLOBAL LEGAL STUD. 75, 76–80
(2008).
33 See Marc Lifsher, If He Can Fight Crime There, He’ll Fight It . . . Anywhere, WALL ST.
J., Mar. 8, 2001, at A18.
34 Mitchell & Beckett, supra note 32, at 96.
35 Id.
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84 Harvard Law & Policy Review [Vol. 10
merly considered relatively unimportant issues and to encourage a more ag-
gressive response to them. The result has been a sharp increase in the arrest
and incarceration of drug law violators and misdemeanants generally. And
as is now well-known, both of these developments, especially the war on
drugs, contributed importantly to the development of mass incarceration and
to pronounced racial disparities throughout the criminal justice system.36
As a result of these and other policy developments, the U.S. penal sys-
tem has expanded to unprecedented proportions. The U.S. incarceration rate
is the highest in the world, and is five to fifteen times higher than those
found in Nordic and Western European countries.37 The massive expansion
of the penal system has had important consequences with which scholars
increasingly grapple. For example, mass incarceration has unparalleled dem-
ographic reach and implications, fundamentally altering the institutions with
which key segments of the population come into contact over their life
course.38 Moreover, the expansion of penal institutions and populations has
had profound implications for our understanding of social inequality. As
punishment scholar Bruce Western puts it, “the penal system has emerged as
a novel institution in a uniquely American system of social inequality.”39
Indeed, the growth of the criminal justice system has been so conse-
quential that the study of punishment, urban poverty and social inequality
are increasingly treated as over-lapping rather than distinct areas of in-
quiry.40 Research in these areas indicates that the U.S. penal system is impli-
cated in the accumulation of disadvantage and the reproduction of inequality
for a number of reasons: the growing number of (mainly poor) people whose
36 See ALEXANDER, supra note 16. For the argument that Alexander and other “New Jim
Crow” scholars have overstated the extent to which the war on drugs accounts for mass incar-
ceration, see James Forman, Racial Critiques of Mass Incarceration: Beyond the New Jim
Crow, 87 N.Y.U. L. REV. 101 (2012). Forman correctly observes that policies pertaining to
more serious crime, especially violent crime, have contributed even more significantly to mass
incarceration than has the war on drugs.
37 See Tapio Lappi-Seppälä, Why Some Countries Cope With Lesser Use of Imprisonment?
Explaining Differences and Pondering the Remedies, CRIMINAL JUSTICE ALLIANCE (Mar.
2015), http://criminaljusticealliance.org/wp-content/uploads/2015/03/Tapio-Lappi-
Sepp%C3%A4l%C3%A4-presentation [http://perma.cc/M6VG-8JNF].
38 See Becky Pettit & Bruce Western, Mass Imprisonment and the Life Course: Race and
Class Inequality in U.S. Incarceration, 69 AM. SOC. REV. 151, 164–66 (2004); Christopher
Uggen, Jeff Manza & Melissa Thompson, Citizenship, Democracy, and the Civic Reintegra-
tion of Criminal Offenders, 605 ANNALS AM. ACAD. POL. & SOC. SCI. 281, 296–304 (2006).
39
BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 8 (2006).
40 Id.; see also Megan Comfort, Punishment Beyond the Legal Offender, 3 ANN. REV. L.
SOC. SCI. 271, 289 (2007); Holly Foster & John Hagan, Incarceration and Intergenerational
Social Exclusion, 54 SOC. PROBLEMS 399 (2007); John Hagan & Ronit Dinovitzer, Collateral
Consequences of Imprisonment for Children, Communities and Prisoners, 26 CRIME & JUST.
121 (1999); Alexes Harris, Heather Evans & Katherine Beckett, Drawing Blood from Stones:
Monetary Sanctions, Punishment and Inequality in the Contemporary United States, 115 AM.
J. SOC. 1753 (2010); Michael Massoglia & Jason Schnittker, No Real Release: The Health
Effects of Incarceration, 14 CONTEXTS 38 (2009); Sara McLanahan, Fragile Families and the
Reproduction of Poverty, 621 ANNALS AM. ACAD. POL. & SOC. SCI. 111 (2009); Becky Pettit
& Bruce Western, supra note 38; JEREMY TRAVIS, ELIZABETH CINCOTTA & AMY SOLOMON,
URBAN INST., JUSTICE POLICY CTR., FAMILIES LEFT BEHIND: THE HIDDEN COSTS OF INCARCER-
ATION AND REENTRY (2005).
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2016] Toward Harm Reduction Policing 85
lives it touches; the negative impact of criminal convictions on employment
and earnings; the adverse effects of confinement on inmates’ mental and
physical health; incarceration’s destabilizing effects on families, children,
and urban communities; and the widespread imposition of “collateral” or
“invisible” sanctions, including the imposition of legal debt, many of which
transform punishment from a temporally limited experience to a long-term
status.41
In summary, mass incarceration is in part the result of policy-guided
efforts to encourage a stronger and more arrest-oriented police response to
behaviors and situations that, while potentially illegal, generally do not pose
a significant public safety threat. The enactment of these policies notably
enhanced levels of criminal justice involvement, thus fueling the imposition
of significant harm, particularly on poor urban communities of color. More-
over, these policies do not appear to be responsible for recent notable reduc-
tions in crime. In this context, the harm reduction philosophy offers some
ideas about how policy might be re-directed toward the goal of minimizing
the harm associated with both crime and criminal justice involvement.
III. TOWARD HARM REDUCTION POLICING
The harm reduction philosophy rests on the assumption that some peo-
ple will always engage in behaviors, such as drug use, that are stigmatized
and risky. Although efforts to reduce these behaviors are appropriate, it is
important to recognize that no society has ever eradicated all unwanted be-
haviors. For this reason, “abstinence cannot be the only goal of drug policy
or of [treatment providers].”42 More generally, social policy aimed at les-
sening the negative consequences of risky behaviors may reduce human suf-
fering more than policies aimed at eradicating such behaviors altogether.
Harm reduction practitioners therefore emphasize that the path toward absti-
nence may often be long, and sometimes even non-existent.43 Even in the
absence of abstinence, though, meaningful reductions in human suffering
can be achieved.
In addition, harm reduction advocates distinguishing between the pri-
mary and secondary harms associated with risky behaviors. Primary harms
are those caused by the behavior itself, such as liver damage caused by ex-
41 For overviews of the role of the penal system in the reproduction of poverty and ine-
quality, see generally WESTERN, supra note 39; Harris, Evans & Beckett, supra note 40.
42 Craig Reinarman & Harry G. Levine, CRACK IN AMERICA: DEMON DRUGS AND SOCIAL
JUSTICE 356 (1997).
43 For general overviews of harm reduction, see G. A. MARLATT, HARM REDUCTION:
PRAGMATIC STRATEGIES FOR MANAGING HIGH-RISK BEHAVIORS (1st ed. 2002); Don C. Des
Jarlais, Samuel R. Friedman & Thomas P. Ward, Harm Reduction: A Public Health Response
to the AIDS Epidemic Among Injecting Drug Users, 14 ANN. REV. PUB. HEALTH 413 (1993);
Robert J. MacCoun, Toward a Psychology of Harm Reduction, 53 AM. PSYCHOLOGIST 1199
(1998); Ethan A. Nadelmann, Thinking Seriously about Alternatives to Drug Prohibition, 121
DAEDALUS 85 (2002).
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cessive alcohol consumption. Secondary harms are those that flow from the
policy response to the behavior in question.44 For example, an injection drug
user who contracts HIV because clean syringes are not made available has
suffered a secondary—and quite avoidable—harm. Similarly, the adverse
consequences that flow from the incarceration of an addict are considered by
harm reduction advocates to be both secondary and avoidable.
Indeed, from a harm reduction point of view, the active intervention of
the criminal justice system is often counterproductive and a source of dam-
age. For example, if policed aggressively, drug use and sex work may be
pushed into more and more dangerous places. This may leave those who
engage in those behaviors even more vulnerable to physical assault and other
dangers.45 Drug users may inject more quickly, or in darker locales, or with
dirty needles, thereby endangering themselves and others.46 A drug user who
is convicted, incarcerated, and loses her ability to secure work and housing
as a result of her conviction is more likely to relapse. Harm reduction advo-
cates therefore argue that many forms of risky behavior should be defined
not primarily as matters of criminal justice, but of public health.47 Absent an
immediate threat to public safety, arrest and punishment are, from the harm
reduction point of view, inappropriate responses to these behaviors. Instead,
priority should be placed on the provision of health care and social services
to help reduce overall levels of harm.
These ideas serve as the foundation of an innovative new approach to
policing underway in Seattle, Washington. The next section describes how
this program emerged and has been implemented, as well as some of the
ongoing challenges with which LEAD stakeholders wrestle.
IV. SEATTLE’S LAW ENFORCEMENT ASSISTED DIVERSION PROGRAM
Seattle’s Law Enforcement Assisted Diversion (LEAD) program is be-
lieved to be the first pre-booking diversion program for people arrested on
drug and prostitution charges in the United States. Launched in October
2011, LEAD is the result of a collaborative effort between an unusually
broad coalition of organizations, including the Defender Association’s Racial
Disparity Project, the Seattle Police Department, the ACLU of Washington,
the King County Prosecutor’s Office, the Seattle City Attorney’s office, the
King County Sheriff’s Office, Evergreen Treatment Services, the King
44 See Robert J. MacCoun, Toward a Psychology of Harm Reduction, 53 AM. PSYCHOL.
1199, 1199 (1998).
45 See Lisa E. Sanchez, Boundaries of Legitimacy: Sex, Violence, Citizenship and Commu-
nity, 22 LAW & SOC. INQUIRY 543, 575–76 (1997).
46 Lisa Maher & David Dixon, Policing and Public Health: Law Enforcement and Harm
Minimization in a Street-level Drug Market, 39 BRIT. J. CRIMINOLOGY 488, 508 (1999).
47 See generally Geoffrey Pearson, Drugs and Criminal Justice: A Harm Reduction Per-
spective, in THE REDUCTION OF DRUG-RELATED CRIME (Pat O’Hare et al. eds., 1992).
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County Executive, the Washington State Department of Corrections, neigh-
borhood leaders and advisory boards, and other organizations.
In 2013, two years into its operations, I conducted a process evaluation
of LEAD to assess whether its implementation was proceeding smoothly and
to identify any obstacles to implementation.48 The following analysis draws
on the research conducted as part of that evaluation and therefore focuses
mainly on LEAD’s first two years of operations. I also describe the results of
a recent outcome evaluation and new developments regarding the scope and
operations of LEAD.
I collected and analyzed a variety of data sources in the course of the
process evaluation. These include: foundational documents, including
LEAD’s Memorandum of Understanding, protocol, concept paper, and
others; observations of LEAD-affiliated SPD and Department of Corrections
officers and sergeants and case managers as they conducted LEAD-related
work; observation of the LEAD operations work group and policy group
meetings; and interviews with LEAD stakeholders and participants. I col-
lected and analyzed these data during the summer and fall of 2013.49 Below,
I draw on these data to describe LEAD’s creation, operating principles, and
outcomes. I also identify a number of challenges to the long-term viability
and efficacy of LEAD.
A. The Creation of LEAD
The adoption of LEAD marks a dramatic shift in Seattle’s approach to
drug markets and associated problems. Like many urban police agencies, the
Seattle Police Department (SPD) was actively engaged in the drug war in
recent decades. In fact, the city’s drug arrest rate was comparatively high,50
and levels of racial disproportionality in drug law enforcement outcomes
were quite pronounced. In 2006, for example, Seattle’s black drug arrest rate
was 13.6 times higher than its white drug arrest rate; for drug delivery ar-
rests, the black arrest rate was 21 times higher.51
In response to the severity and persistence of these unusually high
levels of racial disparity, attorneys at the Racial Disparity Project mounted a
selective enforcement challenge on behalf of a consolidated group of
nineteen criminal defendants in 2003. All of the defendants involved in this
“criminal class action” case were either black, Latino, or both, and all had
48
KATHERINE BECKETT, SEATTLE’S LAW ENFORCEMENT ASSISTED DIVERSION PROGRAM:
LESSONS LEARNED FROM THE FIRST TWO YEARS (2014), http://www.seattle.gov/council/Har-
rell/attachments/process%20evaluation%20final%203-31-14 [http://perma.cc/4ALG-
RQHW]. This process evaluation was funded by the Ford Foundation.
49 One follow-up interview with an SPD sergeant was conducted in March of 2014.
50 Although Seattle’s white arrest rate was not unusually high, the black drug arrest rate
was. See KATHERINE BECKETT, AM. CIVIL LIBERTIES UNION & THE DEFENDER ASS’N, RACE
AND DRUG LAW ENFORCEMENT IN SEATTLE 9 (2008), https://www.aclu.org/files/assets/race20
and20drug20law20enforcement20in20seattle_20081 [https://perma.cc/NRD7-8256].
51 Id. at 56.
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88 Harvard Law & Policy Review [Vol. 10
been arrested for delivering drugs in the downtown area. Many were addicts
who sold small amounts of drugs to support their habit. As a group, the
defendants were alleged to have delivered narcotics weighing the equivalent
of six plain M&M’s. Collectively they faced the prospect of well over 100
years in prison.
Perhaps unsurprisingly, the litigation that ensued proved to be lengthy,
complex, and time-consuming. At the same time, the SPD’s aggressive en-
forcement tactics failed to eradicate open-air drug markets, and the persis-
tence of visible drug activity continued to generate significant community
pressure on authorities to “do something” about drugs. By the late 2000s, all
of the main actors were dissatisfied with the status quo, including the SPD
itself.
Eventually, litigation-fatigue and the persistence of significant public
concern about Seattle’s still-active drug markets inspired SPD personnel, the
King County Prosecutor, and Racial Disparity Project staff to work together
to identify an alternative approach that avoided reliance upon jail and prison
but also took the harm associated with untreated addiction and drug market
activity seriously. The result, eventually, was the creation and implementa-
tion of Seattle’s Law Enforcement Assisted Diversion program. LEAD seeks
to reduce the neighborhood and individual-level harm associated with Seat-
tle’s drug and sex markets—as well as the criminal justice expenditures and
human injury associated with conventional enforcement practices—by di-
verting low-level drug and sex offenders into intensive, community-based
social services that are guided by harm reduction principles.
B. LEAD Principles and Operations
LEAD took several years to develop. In 2008, staff from the Racial
Disparity Project sought input from a broad range of organizations about
what an alternative approach to low-level drug enforcement might look like.
Representatives of these institutions comprise LEAD’s Policy Coordinating
Group, and LEAD remains an independent program that is not housed in any
particular agency. LEAD stakeholders (many of whom were former adversa-
ries) often had diverse reasons for participating in these conversations, but
they nonetheless developed consensus around a set of fundamental princi-
ples. Stakeholders laid these principles out in a Memorandum of Under-
standing in 2010, which specifies that LEAD seeks primarily to improve
public safety and reduce crime; that traditional drug war tactics such as
booking, prosecuting, and jailing individuals for low-level drug offenses do
not meaningfully improve public safety and public order; and that connect-
ing low-level drug law violators with services may be a less expensive and
more efficacious way to improve public safety than conventional law en-
forcement tactics.
Stakeholders sought and obtained grant support to fund LEAD opera-
tions as well as independent research that evaluated LEAD’s capacity to re-
duce recidivism and save public monies. The hope was that this evidence
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would provide the rationale for public (city and county) funding of LEAD.
LEAD stakeholders also selected a particular neighborhood—Belltown—to
be the site of LEAD’s initial two-year pilot program. Located on the north
end of Seattle’s downtown core, Belltown is a mixed residential and com-
mercial neighborhood in which many homeless and unstably-housed people
commingle with increasingly large numbers of condominium owners, high-
end shoppers, and nightlife patrons. Initially, officers in proactive units
working in Belltown were trained to make LEAD referrals; at the time of
this writing, King County Sheriffs in proactive units working in the Skyway
area and for King County Metro, and SPD officers working in proactive
units throughout the West Precinct (which encompasses the entire downtown
area) had also been trained in LEAD operations. Stakeholders are develop-
ing a plan for training officers in Seattle’s East Precinct.
Early in the process, stakeholders expanded the potential client popula-
tion to include sex workers in order to ensure significant participation by
women who suffer from addiction or extreme poverty,52 and spent signifi-
cant time developing a protocol to guide program operations. This protocol
lays out the procedures by which police officers refer people to LEAD and
by which LEAD clients are engaged by social service providers. These pro-
cedures are described below.
C. Police Referral to LEAD
When an eligible individual is arrested on drug charges (either posses-
sion of a controlled substance or sale of small amounts of drugs for “subsis-
tence purposes”) or for prostitution, a LEAD-trained police officer may elect
to refer that individual to a LEAD case manager rather than booking him or
her into jail. Although several criminal background exclusions may apply,
these exclusions are presumptive rather than mandatory, and participating
officers retain a high degree of discretion over the referral process. That is,
people with more serious criminal records can be referred to LEAD after
booking if the arresting officer so recommends. In addition, SPD officers
may elect not to refer those who are presumptively eligible to the program.53
Stakeholders granted officers this degree of discretion because they believe
that officers possess deep knowledge about the people they regularly en-
counter and are therefore best situated to determine if a potential client is in
a position to benefit from LEAD and can safely work with case managers in
relatively private settings.54 Early on, some stakeholders expressed concern
that officers might be more inclined to refer white people to LEAD. To en-
52 Since that time, approximately half of all LEAD clients have been female.
53 See LEAD Referral and Diversion Protocol (June 2015), http://static1.1.sqspcdn.com/
static/f/1185392/26595193/1444410613677/June-2015-Seattle-LEAD-Referral-and-Diver-
sion+Protocol ?token=5WGzNMMvCrobqqrnW8FTTOVJDf0%3D [http://perma.cc/UU
5B-UTW7].
54 See BECKETT, supra note 48, at 10 (citing Interview with Ian Goodhew, Deputy Chief
of Staff, King Cty. Prosecuting Attorney’s Off. in Seattle, Wash. (Jun. 28, 2013)).
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90 Harvard Law & Policy Review [Vol. 10
sure that this is not the case, data regarding the racial and ethnic composition
of LEAD clients are collected and monitored. The evidence to date shows
that sixty percent of all LEAD clients are black and roughly one-fourth are
white.55
In an arrest referral, a police officer makes an arrest, transports the ar-
restee to the precinct and contacts a LEAD case manager, who then goes to
the police precinct to conduct an initial screening with the potential LEAD
client. In most cases, the officer relinquishes custody of the referred person
as soon as a caseworker arrives. Although the arrested individual has been
referred to LEAD rather than booked into jail, the arresting officer nonethe-
less sends the arrest record to the Seattle City Attorney’s office (which is
responsible for prosecuting misdemeanor crimes) or to the King County
Prosecutor (responsible for prosecuting felony offenses). These offices
maintain the authority to charge the arrested person. However, the presump-
tion is that charges will not be filed as long as the individual completes both
an initial screening and a full intake assessment with LEAD case managers
within thirty days of the referral. Stakeholders agree that prosecutors have
complied with this expectation.
Early on, LEAD stakeholders elected to also allow officers to refer peo-
ple to LEAD via a “social contact” rather than an arrest. A social contact
referral occurs when officers identify someone who, based on past experi-
ence, they believe to be engaged in drug or prostitution activity, and offer
that person a chance to participate in LEAD. Absent authorization of these
social contact referrals, officers would have had to wait until they had suffi-
cient evidence to arrest such individuals in order to refer them to the pro-
gram. But because officers indicated that they would prefer to be able to
make referrals to LEAD even if they did not have the evidence required to
make an arrest, stakeholders authorized these social contact referrals.56
Interestingly, stakeholders are currently revising the social contact re-
ferral process to simplify and expedite the social contact referral process.57
Previously, officers constructed a list of persons they knew from past experi-
ence to be involved in drug or sex market activity and whom they believed
would benefit from LEAD; officers then attempted to locate those people in
order to verbally refer them to LEAD case managers. However, in some
cases, officers were unable to find people on the “social contact” list for
55 See SUSAN E. COLLINS, HEATHER S. LONCZAK & SEEMA L. CLIFASEFI, LEAD PROGRAM
EVALUATION: CRIMINAL JUSTICE AND LEGAL SYSTEM UTILIZATION AND ASSOCIATED COSTS 12
(2015), http://static1.1.sqspcdn.com/static/f/1185392/26401889/1437170937787/
June+2015+LEAD-Program-Evaluation-Criminal-Justice-and-Legal-System-Utilization-and-
Associated-Costs ?token=yLjNRQP6FWqSn9bvqxVdl28WnWc%3D [http://perma.cc/
69TH-7Z4H].
56 These “social contact referrals” can only be made for individuals with prior docu-
mented involvement in drugs (possession or selling) or prostitution. See BECKETT, supra note
48, at 11 (citing Interview with Lisa Daugaard, Dir., Racial Disparity Project, in Seattle, Wash.
(Jun. 21, 2013)) (Daugaard is no longer in that role).
57 Interview with Lisa Daugaard, Dir., Racial Disparity Project, in Seattle, Wash. (Oct. 1,
2015).
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extended periods of time, and a backlog ensued. To remedy this, LEAD or-
ganizers are currently modifying the referral protocol such that case manag-
ers, public defenders, social service providers, and others can offer to
connect persons identified by law enforcement as potential social contact
referrals with LEAD case managers, thus obviating the need for officers to
physically locate those individuals.58
D. Social Service Provision
Shortly after a referred person agrees to participate in LEAD, they meet
with a LEAD case manager. Case managers hired by LEAD are accustomed
to working in an intensive and “hands on” manner with their clients, an
orientation LEAD stakeholders refer to as the “guerilla approach” to social
work. In this approach, case managers do not simply supply their clients
with a “to-do” list, but actively seek out recalcitrant clients; visit newly
housed clients; accompany others as they complete paperwork, keep ap-
pointments, and apply for services and housing; and engage in a myriad of
other behaviors aimed at helping their clients achieve their stated goals.59
LEAD case managers must also be comfortable with the program’s harm
reduction philosophy and familiar with motivational interviewing. Due to
this, LEAD trains case managers to meet clients “where they are at,” to
assist clients in identifying individual goals through techniques such as moti-
vational interviewing, and to support their clients as they work toward those
goals.
In their first meeting, LEAD case managers conduct an initial intake
assessment and connect the client with services that address his or her most
acute needs. Upon completion of this assessment, the referred person is free
to leave but is asked to return to the LEAD office to complete the second
part of the intake interview. Once the referred person does so, she or he is a
LEAD “client.” In the following weeks, case managers work with their cli-
ents to create an individual intervention plan that is tailored to the client’s
particular needs and goals, and may include “assistance with housing, treat-
ment, education, job training, job placement, licensing assistance, transporta-
tion, small business counseling, child care or other services.”60 Funds
dedicated to LEAD are generally used to pay for these services, but public
assets can be used in addition to this so long as this is possible without
harming other disadvantaged individuals.61
Several core operating principles guide LEAD’s provision of social ser-
vices. First, LEAD adheres to a non-displacement principle, which means
that LEAD clients do not move to the top of a waiting list for social services
58 Id.
59 See BECKETT, supra note 48, at 11 (citing Interview with Lisa Daugaard, Dir., Racial
Disparity Project, in Seattle, Wash. (Jun. 21, 2013)).
60 See id. at 12 (citing Telephone Interview with Ron Jackson, former Exec. Dir., Ever-
green Treatment Servs. (Jun. 24, 2013)).
61 Id.
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92 Harvard Law & Policy Review [Vol. 10
simply because they are a LEAD client. For example, if a LEAD client seeks
methadone treatment, LEAD monies will be used to pay for that treatment
until the LEAD client emerges at the top of the waiting list for publicly
funded methadone treatment. This non-displacement principle differentiates
LEAD from many therapeutic courts,62 and was adopted to increase the like-
lihood that LEAD will benefit the community as a whole, not just individual
program participants.
Second, consistent with the harm reduction philosophy, LEAD case
managers focus “on individual and community wellness, rather than an ex-
clusive focus on sobriety, by immediately addressing the participant’s drug
activity and any other factors driving his or her problematic behavior, even if
complete abstinence from drug use is not immediately achieved.”63 That is,
case managers expect setbacks and emphasize that meaningful improve-
ments may occur even in the absence of abstinence. Particularly at the out-
set, abstinence may not be among their clients’ objectives, and clients are
welcome to participate in LEAD regardless of whether they identify absti-
nence as a goal. Furthermore, case managers assist clients in identifying
their own goals and supporting them as they work to meet those goals.64 The
hope is that by engaging clients; helping them to identify and articulate their
own goals; and providing emotional, practical and financial support as they
work toward those goals, LEAD clients will reduce or cease their use of
drugs, and cause less harm to themselves and to others than they would
absent LEAD’s intervention.
A few other features of LEAD’s operations are novel and hence note-
worthy. First, LEAD participants’ eligibility for services and benefits are not
time delimited. According to the LEAD protocol, individual intervention
programs are “designed to maximize the odds of a participant being able to
achieve self-sufficiency independent of program funding at some point in
the relatively near term.”65 Second, the LEAD protocol does not authorize
any sanctions for “non-compliance.”66 Although the King County Prosecut-
ing Attorney and the Seattle City Attorney retain their authority to file
62 The therapeutic justice movement takes various forms, such as drug courts, mental
health courts, and community courts. Although they differ in their particulars and vary from
jurisdiction to jurisdiction, these courts emphasize treatment rather than punishment: court-
room encounters are used to work with the defendant to craft a care plan and to monitor
compliance with that plan. See David Rottman & Pamela Casey, Therapeutic Jurisprudence
and the Emergence of Problem-solving Courts, NAT’L INST. JUST. J. 12, 13 (1999); David
Wexler, Reflections on the Scope of Therapeutic Jurisprudence, 1 PSYCHOL. PUB. POL’Y & L.
220, 220–24 (1995). In many jurisdictions, a trip to therapeutic court essentially means a
chance to skip ahead in line for access to scarce social services, but the total number of treat-
ment slots is not increased. See BECKETT & HERBERT, supra note 27, at 130.
63
THE DEFENDER ASS’N—RACIAL DISPARITY PROJECT, LAW ENFORCEMENT ASSISTED DI-
VERSION (LEAD): A PRE-BOOKING DIVERSION MODEL FOR LOW-LEVEL DRUG OFFENSES,
NAACP, http://action.naacp.org/page/-/Criminal%20Justice/LEAD%20concept%20paper
[http://perma.cc/5UKU-7F52].
64
BECKETT, supra note 48, at 12 (citing Telephone Interview with Ron Jackson, former
Exec. Dir. of Evergreen Treatment Services in Seattle, Wash. (Jun. 24, 2013)).
65 See id. at 4.
66 Id. at 13.
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charges against LEAD participants for crimes committed in the past or while
participating in LEAD, prosecutors have committed to working in coopera-
tion with LEAD, which means exercising their discretion to not bring
charges against LEAD participants where refraining will enhance LEAD cli-
ents’ therapeutic progress. At regularly held work group meetings, law en-
forcement officers, case managers, and prosecutors share information about
LEAD clients so that each of these actors can make informed decisions in
matters pertaining to them. These meetings are especially useful to prosecu-
tors weighing whether to file charges acquired by LEAD clients subsequent
to their enrollment in LEAD, and are indicative of a sharp break with tradi-
tional practices in which prosecutors make filing decisions absent input from
other agencies.
E. LEAD’s Success: Reduced Recidivism and Transformed
Institutional Relationships
LEAD seeks to improve public safety by reducing drug use, drug sell-
ing, and the quality-of-life problems associated with open-air drug and sex
markets. By enabling police officers to refer clients to case managers rather
than book them into jail, and by providing intensive case management ser-
vices and resources that create meaningful opportunities for those struggling
with addiction and extreme poverty, LEAD also seeks to prevent arrests
from leading to additional criminal justice intervention. The hope is that the
program will not only reduce the individual and community harms associ-
ated with drug activity, criminal conviction, and incarceration, but will also
provide an alternative model for social service provision which, by virtue of
being more cost effective than the formal justice system, has the potential to
reach more people.
A recent outcome evaluation suggests that LEAD has been remarkably
effective in achieving these goals. The study compared the recidivism rates
of approximately 200 LEAD clients with 115 others who, by virtue of the
time or place of their arrest, did not participate in LEAD but had similar
criminal records. The results were significant. Specifically, LEAD clients
were nearly sixty percent less likely to be re-arrested than their non-LEAD
counterparts. Similarly, the odds that a LEAD client was sentenced to prison
in the first year after their enrollment in LEAD were eighty-seven percent
lower than for non-LEAD clients. LEAD clients also spent thirty-nine fewer
days in jail than similarly situated arrestees who did not enter LEAD. Some
of these reductions may have resulted from prosecutors’ willingness to not
file charges for misdemeanor or drug offenses where they believe doing so
would imperil LEAD clients’ therapeutic progress. However, prosecutors
have indicated that they are likely to file charges against LEAD clients if the
behavior in question involves direct harm to victims.
In short, the fact that LEAD clients have significantly less criminal jus-
tice contact than others with similar criminal records likely reflects reduc-
tions in offending behavior as well as the tendency of prosecutors not to file
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94 Harvard Law & Policy Review [Vol. 10
charges for minor offenses where LEAD clients are actively engaged with
their treatment program. These reductions in criminal justice contact and
incarceration mean significant cost savings: the findings reveal “statistically
significant reductions for the LEAD group compared to the control group on
average yearly criminal justice and legal system utilization and associated
costs.”67 Specifically, criminal and legal systems costs associated with
LEAD clients decreased by roughly thirty percent relative to the year prior
to their enrollment in LEAD, while those costs for non-LEAD clients more
than doubled in that same time period.68
In addition to achieving these remarkable reductions in criminal justice
contact and costs, LEAD has had a number of other positive effects. For
stakeholders, one of the most meaningful of these was the process of coming
together, despite diverse motivations and lingering, litigation-induced resent-
ment, to find common ground. As one SPD Lieutenant put it, “Traditionally
we have definitely been on opposite side[s] of most issues . . . . In the
process of talking to people we realized we have the same goals and desires
in what we wanted to accomplish.”69
LEAD’s collaborative model ultimately transformed institutional rela-
tionships in ways that create exciting opportunities for collaboration and re-
form. Indeed, many stakeholders credited LEAD with fundamentally
transforming their assumptions about, and relationships with, other organiza-
tions. In the words of one supervisor at Evergreen Treatment Services,
I think I talked about last time my first experience meeting with
SPD, where we did a training . . . . When they all walked in, I just
thought, “Oh, no, this is not going to be pretty.” They were all big
and tall and angry looking and mostly white and male and they all
had guns strapped to their sides. And I just thought, “Whoa.” Es-
pecially thinking—we’re dealing with issues of racial disparity
here. I mean, over half of our clients at this point are African
American. And I’m thinking, “And we’re developing a relationship
with these people? This is going to be a challenge.” And it has
been challenging in many ways. But, the distance that we’ve come
is enormous.70
In fact, stakeholders often came to adopt the position of their former
adversaries, much to their surprise. Ian Goodhew of the King County Prose-
cuting Attorney’s Office explained it this way:
Whatever you think about LEAD as a program, by doing it what
we’ve managed to do is cause policy makers who used to think
67
SUSAN E. COLLINS, HEATHER S. LONCZAK & SEEMA L. CLIFASEFI, supra note 55, at 2.
68 Id. at 20. A future evaluation by the same authors will assess changes in psychosocial,
housing, and quality of life among LEAD clients.
69
JEREMY KAPLAN-LYMAN, LAW ENFORCEMENT ASSISTED DIVERSION, SEATTLE, WASH.
22–23 (2012).
70
BECKETT, supra note 48, at 41 (citing Focus Group Interview with LEAD Supervisors
in Seattle, Wash. (Sep. 22, 2013)).
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they never agreed on anything to talk to each other and realize that
. . . we do agree on a few things. And as [then-Interim SPD Chief]
Pugel always says in his talk on LEAD, it’s not only the fact that
he or SPD has a relationship with the defender association now or
the Racial Disparity Project or the ACLU. It’s that he has a rela-
tionship with me now . . . . But it will create odd alliances. It will
create odd relationships. It will bolster what should be strong rela-
tionships that may be [sic] aren’t. And it will make you think
about another person or agency or institution’s perspectives on the
issues. And once people start talking with each other instead of
talking about each other, anything is possible.71
The institutional shifts described above fostered in LEAD stakeholders
a new willingness to consider and implement other significant criminal jus-
tice reforms. Lisa Daugaard, an attorney affiliated with the program, re-
counted how Kris Nyrop (LEAD Program Director at the Public Defender
Association) and SPD Lieutenant Deanna Nollette traveled together to an
international policing conference. While there, Lieutenant Nollette learned
about safe injection sites, and swiftly became a convert. Similarly, Dan Sat-
terberg, King County Prosecuting Attorney, explained that LEAD prompted
his office to pursue other reforms, especially The 180 Program aimed at
diverting juveniles from the justice system. Dan concluded that “there are a
lot of complicated issues in our society and they’re not all solved by a trip to
the courtroom or prison.”72
In short, many stakeholders reported that LEAD dramatically reframed
their perspectives on problems and their relationships with each other. Such
transformations increased the stakeholders’ openness to other possible re-
forms. At the same time, a number of stakeholders identified significant im-
plementation and structural challenges. These are described below.
F. Obstacles to Implementation: Effectively Channeling Police
Discretion and Overcoming Structural Challenges
One of the most significant challenges for LEAD stakeholders in Seat-
tle has been finding “common ground” with street-level officers and elicit-
ing officer buy-in. This is in large part because LEAD’s model asks officers
to exercise their discretion quite differently—to refrain from arresting peo-
ple who appear to be violating drug or prostitution laws and to instead refer
them to a program that does not require abstinence. Moreover, officers who
do make referrals are often confronted with the sight of LEAD clients “on
the streets.” The idea that LEAD clients could continue to “hang out”
71 Id. at 41–42 (citing Interview with Ian Goodhew, Deputy Chief of Staff, King Cty.
Prosecuting Attorney’s Off., in Seattle, Wash. (Jun. 28, 2013)).
72 Id. at 43–44 (citing Interview with Dan Satterberg, King Cty. Prosecuting Attorney, in
Seattle, Wash. (Jun. 28, 2013)).
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downtown and actively use drugs was frustrating and incomprehensible to
many officers. As Lieutenant Nollette explained,
It was an interesting conversation, in that [the service providers]
were saying no, that [relapse] is part of recovery . . . . We are not
going to force people to stop using. They can continue to use. We
are looking at reducing their illegal behavior. That is a really hard
thing for cops to get their head around.73
In an effort to secure the support of the relevant officers, especially
those known to be “hard chargers,” LEAD stakeholders conducted a focus
group with officers from the relevant units. LEAD stakeholders used officer
feedback from the focus groups to revise the LEAD protocol. For example,
as mentioned previously, officers expressed a strong preference for having
the referral option that came to be known as “social contract referral,” and
this feedback ultimately led organizers to revise the LEAD protocol.
On the other hand, police officers’ accounts of the utility of these focus
groups ranged from mixed to sharply critical. Some officers and sergeants
agreed that the focus group provided a useful opportunity for dialogue and
the exchange of information, and noted that some of their suggestions had
resulted in concrete changes to the protocol. In other focus groups, however,
officers complained bitterly about organizers’ decision to allow command
staff to observe the discussion from behind a one-way mirror, the fact that
they were not “primed” for the discussion, and shared their perception that
their feedback was not taken seriously. Officers in these focus groups also
expressed a great deal of skepticism about the rationale for LEAD and con-
cern that it would function as a “get out of jail free card” for people with no
intention of getting clean.
In short, as of 2013, the degree to which officers “bought-in” to LEAD
and were willing to exercise their discretion in a notably new way varied
significantly across units. In response to the sharply critical tenor of some of
the focus group conversations, I requested and received officers’ permission
to share their concerns with LEAD organizers. In follow-up meetings, the
officers, LEAD organizers, and then-Interim SPD Chief Jim Pugel had an
extended conversation about the officers’ concerns. I later asked to speak
with the unit’s sergeant to learn whether this conversation had changed the
officers’ attitudes toward LEAD. In our interview, the sergeant explained
that the officers “were pleasantly surprised” by the LEAD organizers’ can-
dor and receptiveness to new ideas.74 Officers remained troubled by LEAD’s
willingness to permit clients to return to the area in which they were ar-
rested. Eventually, however, they realized that the spatial concentration of
social services in the downtown area dictated this result.
73 See JEREMY KAPLAN-LYMAN, supra note 69, at 20.
74
BECKETT, supra note 48, at 26 (citing Interview with SPD sergeant, in Seattle, Wash.
(Mar. 17, 2014)).
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The sergeant also praised LEAD organizers for directly clarifying sev-
eral misunderstandings about LEAD. For example, a number of officers ini-
tially believed that prosecutors never charged LEAD clients with criminal
offenses after entering the program. In effect, these officers viewed LEAD
as a “get out of jail free” card for its clients. LEAD organizers directly
addressed this concern and explained that while prosecutors generally do not
bring charges for the initial arrest that prompted diversion to LEAD, they
sometimes do bring charges against LEAD clients for subsequent miscon-
duct if they determine that doing so will benefit, rather than thwart, the indi-
vidual’s therapeutic progress. As the sergeant explained, this clarification
was valuable in helping officers recognize that the time and energy they
spend completing the paperwork on such arrests is not pointless.
Nonetheless, securing police referrals to LEAD remained a challenge
through the spring of 2014, when referrals had slowed to a trickle and, as a
result, LEAD was “twisting in the wind.”75 A variety of other developments,
such as a change in SPD leadership and the departure of key LEAD sup-
porter, Interim Chief Pugel, had further undermined SPD support for
LEAD.76 But in April of 2014, a wide range of public officials and stake-
holders held a press conference to announce their renewed commitment to
LEAD. Since that time, the program has expanded to cover the entire down-
town area, and police referrals have increased notably.77 City officials are
currently planning to expand the program further east to the Capitol Hill
neighborhood.78 Interestingly, a majority of the police referrals are now
made by newly-trained officers in King County Metro Transit, a unit of the
King County Sheriff’s Office.79 This appears to reflect both the active sup-
port and involvement of key leaders in the King County Sheriff’s Office as
well as the reduced availability of proactive police units within the SPD.80
Developing consensus around LEAD, and getting officers to exercise
their discretion in a novel way, was thus a difficult and time-consuming
process. Moreover, although many now believe that the LEAD model holds
significant promise, stakeholders readily identified a number of structural
challenges that also threaten to undermine its efficacy absent a shift in the
social-structural environment. For example, even with adequate funding,
caseworkers often struggled to find housing for their clients. Although hav-
ing resources did create some housing opportunities, money did not solve all
housing-related dilemmas. Affordable housing for unemployed addicts who
75 See Nina Shapiro, How the Much Lauded LEAD Program was Revived After Near Col-
lapse, SEATTLE WEEKLY (Apr. 14, 2014), http://www.seattleweekly.com/home/957881-129/
how-seattles-much-lauded-lead-program-almost [http://perma.cc/3ZCZ-9MPF].
76 Id.
77 As of fall 2015, LEAD case managers are working with approximately 350 LEAD
clients. Interview with Lisa Daugaard, Dir., Racial Disparity Project, in Seattle, Wash. (Oct. 1,
2015).
78 Id.
79 Id.
80 Id.
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98 Harvard Law & Policy Review [Vol. 10
are not disabled is limited, and other LEAD clients find themselves barred
from housing by their criminal histories.
More generally, as LEAD stakeholders with a background in service
provision explained, existing capacity constraints can undermine the success
of any social service intervention.81 Ron Jackson of Evergreen Treatment
Services put it this way:
We could employ an army of case managers, but when it’s all said
and done if those case managers are not getting their clients access
to the services that are going to have positive influence on their
life, they’re not going to be affected. It’s not just being good at
building therapeutic alliance with the homeless person . . . they’ve
still got to deliver something.82
CONCLUDING THOUGHTS
The exercise of discretion is an inherent feature of police work. Con-
temporary scholarship shows that this discretion is the inevitable result of
the ambiguous, multi-faceted and unpredictable nature of the situations of-
ficers encounter, as well as of the complexity and indeterminate nature of the
law itself. Contemporary scholarship also makes plain that this discretion is
too often exercised in ways that violate constitutional protections against the
excessive use of force, racial bias, and unreasonable searches, and that deter-
ring and redressing the problematic exercise of police discretion is no simple
matter.
These complexities aside, policymakers and advocates have in recent
decades successfully altered the incentive structure and ideological climate
in ways that have encouraged an aggressive police response to low-level
offenses. Indeed, advocates of both the war on drugs and broken windows
policing were remarkably successful in directing police attention toward be-
haviors that were historically seen as a low priority by many police officers,
and in encouraging a more forceful response to those behaviors. Channeling
the exercise of police discretion in this manner resulted in a significant rise
in misdemeanor and drug arrests, which in turn has increased court
caseloads and expanded prison and jail populations. These shifts contributed
importantly to the emergence of mass incarceration, an unprecedented
carceral experiment. A significant body of social scientific research docu-
81 Demand for drug treatment has long-outstripped supply across the country. See J.
Gryczynski et al., Treatment Entry Among Individuals on a Waiting List for Methadone Main-
tenance, 35 AM. J. DRUG & ALCOHOL ABUSE 290; see also Adi Jaffe & Tariq Shaheed, Can’t
Get In: Barriers to Addiction Treatment Entry, PSYCHOL. TODAY (Mar. 20, 2012), https://www
.psychologytoday.com/blog/all-about-addiction/201203/cant-get-in-barriers-addiction-treat-
ment-entry [https://perma.cc/5AB8-GWPS]. Similarly, criminal records and substance abuse
issues pose formidable barriers to access to housing nationally. See Marah A. Curtis et al.,
Alcohol, Drug and Criminal History Exclusions in Public Housing, 15 CITYSCAPE 37 (2013).
82
BECKETT, supra note 48, at 48 (citing interview with Ron Jackson, former Exec. Dir.,
Evergreen Treatment Servs., in Seattle, Wash. (Jun. 24, 2013)).
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ments the individual, family, and community level harms that result from
very high levels of incarceration and from the cycling of medically and so-
cially vulnerable populations into and out of jail.
In recognition of these harms, which have very disproportionately af-
fected people and communities of color, and of the inevitability of police
discretion, LEAD organizers in Seattle, Washington, developed and imple-
mented a novel program that relies upon the exercise of police discretion to
steer those who might otherwise end up in jail away from, rather than to-
ward, the criminal justice system. LEAD operations in Seattle show that a
broad range of stakeholders (who may well include former adversaries) can
collaborate to institutionalize local policy reforms that rely on a shift in the
exercise of police discretion in order to meaningfully address the individual
and community level harm associated with addiction, extreme poverty, and
criminal punishment. By reducing the number of people booked on drug and
prostitution-related charges, LEAD has also reduced the number of people of
color in the criminal justice system. Moreover, the evidence from Seattle
suggests that the collaboration required to develop such a program is itself a
transformative and productive experience, one that appears to yield a variety
of dividends, including reduced criminal justice involvement and expendi-
tures as well as a new openness to additional reform ideas.
Inspired by Seattle’s example, city officials in Santa Fe, New Mexico;
Huntington, West Virginia; and Albany, New York, have established, or are
in the process of establishing, LEAD in their cities.83 Authorities in Balti-
more, Maryland; Los Angeles, California; and two Kentucky counties are
also in the beginning stages of implementing LEAD in their jurisdictions.
Expanding LEAD in Seattle and successfully institutionalizing it elsewhere
will require careful attention to several challenging tasks. In particular, se-
curing the support and involvement of line officers in LEAD has proven to
be quite challenging, and may continue to be in the future. In addition,
LEAD case managers continue to wrestle with structural problems such as
the lack of appropriate treatment options and affordable housing for people
with addiction histories and criminal records.
These substantial long-term challenges notwithstanding, the first years
of LEAD’s operations provide compelling evidence that local policy initia-
tives that rely upon police discretion but steer potentially arrestable people
away from rather than toward the criminal justice system are, in fact, in the
83 Aaron Cantu, What Happens When a City Decides to Offer Addicts Services, Not Prison
Sentences?, THE NATION (Oct. 15, 2014), http://www.thenation.com/article/what-happens-
when-city-decides-offer-addicts-services-not-prison-sentences/ [http://perma.cc/T3ES-
DSNX]; see also Interview with Lisa Daugaard, Dir., Racial Disparity Project, in Seattle,
Wash. (Oct. 1, 2015). According to Cantu, “The LEAD programs in Santa Fe and Seattle
specifically target criminal offenses as ways to sidestep the criminal justice process. New
York’s plan, however, is designed only for those who have committed non-criminal violations;
people charged with misdemeanors will not be eligible. The result is that thousands of people
who might benefit from the program will be excluded, because in New York only one drug
offense—marijuana possession at the lowest level—is considered a violation and not a crimi-
nal offense.” Cantu, supra.
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100 Harvard Law & Policy Review [Vol. 10
realm of possibility. As research on the human costs associated with concen-
trated poverty and mass incarceration makes abundantly clear, cities across
the United States desperately need such programs. Through the development
and implementation of programs that use harm reduction principles to guide
the exercise of police discretion, municipalities may be able to transform the
police response to low-level crime from one that exponentially increases the
harm associated with those behaviors to one that notably reduces individual
and community suffering.
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