5 Questions with Mary Ellen Stitt

ALBANY, N.Y. (Aug. 25, 2025) — Diversion programs are widely seen as a way to reduce incarceration rates of the mentally ill. However, as assistant professor Mary Ellen Stitt has found, they can widen the scope of the criminal justice system.

Stitt, who teaches in the School of Criminal Justice in the Rockefeller College of Public Affairs & Policy, explores this in her new book Trial by Treatment. Released earlier this year, it draws on ethnographic fieldwork, interviews, surveys, administrative data and other sources to document the unexpected impacts of treatment-based alternatives to traditional criminal punishment.

Trial by Treatment is Stitt’s first book and she began researching it in 2017, when she was working toward her PhD in sociology at the University of Texas at Austin. Stitt, who grew up outside of Albany, Georgia, has been teaching at Rockefeller since 2020. We recently caught up with her to hear more about these diversion programs and the unintended consequences of having the justice system become involved in mental health treatment.

What led you to this field?

I worked in this area before I went back to grad school and had experience with organizations working for reform in the criminal justice system, so it was an interest when I started the PhD program. I had also done some research in this area as a master’s student, in Brazil.

Can you explain what these diversion programs really are?

Diversion programs, broadly speaking, offer people a chance to avoid a legal sanction if they participate in a therapeutic sanction. The details vary, because most of the programs are governed by local entities. There are not a lot of state or federal laws that govern what they look like.

The kinds of diversion programs that I largely focus on in the book are prosecutor-led diversion programs—which my research suggests are the most common form of diversion nationally—so that means that every time a new district attorney comes into office, these programs can get overhauled or changed.

In almost every case, diversion programs led by prosecutors promise to dismiss the criminal charges against a person if they comply with a certain set of conditions over time. The justification for the programs is often tied to mental illness or substance use disorders, and so the idea is often that people are receiving some form of treatment. What that looks like will vary based on what their assigned counselors think they need—it could be a once-a-week outpatient session or every day or time in an inpatient facility.

Most diversion programs also use drug testing of some kind and prohibit use of drugs that are illegal or marijuana (even in places where it is decriminalized or legalized). Some also prohibit any sort of prescription pain medications and things like medication-assisted treatments, including Suboxone, that are often prescribed for people who are trying to stop using opioids. The programs vary in how they respond to positive test results, and typically there's some discretion for the counselors as well. But usually, they won’t be allowed to complete the program if they test positive for marijuana or illegal drugs, which is often a big reason that people aren’t able to finish.

Then in most cases, there are also some costs involved for the people who go through the programs. There's a lot of variation in how much they cost and whether there are waivers for those costs. I saw participation fees ranging from zero to ten thousand dollars. Then there are other costs involved that are more indirect—like transportation to treatment sessions and drug tests, or if people need to take time off from work or find childcare in order to attend the programs.

How have these programs impacted the criminal justice system?

There are so many complicated impacts. One that I lay out in the book is what researchers in this area refer to as a “net widening” effect, in which a reform is put in place that is meant to be decarceral and then we find that actually it pulls more people into the legal system.

For instance, prosecutors have a lot of discretion to either bring criminal charges or not to, after an arrest or citation—and if they don’t a case will just get dropped and the person will go free. I talked to prosecutors and staff in their offices who said that they often saw prosecutors bringing charges in minor cases that they would otherwise have declined, so that they can divert them in an effort to get somebody services or try to change their behavior. And I heard that rationale from judges and other legal officials all the time in court, too, that it was better to keep somebody in the legal system if it could be a way to get them into treatment.

I ran what's called an experimental survey, so I asked a bunch of active prosecutors to evaluate fake cases that were designed to be similar to cases they would evaluate on a daily basis, and asked “Would you bring charges in this case?” For half of the prosecutors, I mentioned that the case would be eligible for a diversion program and for the others, I didn't mention anything like that. I found that the ones who knew that there was a diversion program in the mix were a lot more likely to bring criminal charges in those cases.

That matters because once someone has been charged, the charges go on their record, and it also gets a lot harder to leave the court system without a conviction. And even though diversion into treatment is intended to help people, the burdens that it places on them to be under court supervision can be very heavy—financially, psychologically, socially and in terms of time.

Another aspect of the “net widening” effect is that a lot of people don't manage to complete the programs successfully and then they end up back in court, and what I found, then, also via the experimental survey and interviews and observations, is that prosecutors offer tougher plea deals to those people than they would if they had not, as they see it, failed out of treatment. And the impacts of that punishment on the back end are very unequally distributed. Because the programs require financial resources and the ability to pass drug tests and show up on time for appointments over and over sometimes for years, people who are very poor or who have more severe mental health concerns really struggle. Most of the people who get sent back to court and penalized for “failing out” are poor, are Black, and/or are very sick.

What do you hope that the public or those who work within these systems take away from your research?

When we ask the criminal courts to become treatment providers, we end up with a lot of unintended consequences. The courts probably shouldn't be asked to do everything we’re asking them to do. Channeling people through the court system to get them into treatment places huge burdens on the judges and attorneys and other workers, and it puts a lot of stress on the people themselves and exposes the most vulnerable among them to more punishment. It costs a lot of money. And the evidence that using the courts to get people into treatment is improving people's health outcomes compared to providing treatment outside of that structure is really not there. Studies that look at drug use, for instance, more or less find that by watching people closely and drug testing them and punishing positive test results, you can reduce drug use in the short term, but as soon as that supervision goes away, they don't find reductions in use.

I think individual practitioners are in a really difficult position, and I try to lay that out in the book. Once somebody is in the legal system, legal officials and treatment providers face a lot of pressure to keep them under certain kinds of supervision and to make sure that they're being drug tested and that there are consequences if they don't show up to treatment and all of those things. So people who work in diversion programs usually want to do everything they can to protect their clients from negative legal outcomes, but they’re working within very real constraints because they’re in the court system.

The central thing I took away from my research for this book is that we should really be thinking broadly as a society about how to deal with mental health in a way that is separate as much as possible from the criminal legal system. We could move in that direction by making high-quality mental healthcare, including treatment for substance use disorders, widely accessible. We could also work toward less criminalization of things like drug use and homelessness that often sweep people with mental illness into the legal system on the front end, and more provision of social services.

Is there anything else about the book that you would want people to know?

One of the barriers to research in this area is transparency. Public resources go to running these and a lot of people are spending a lot of time in these programs, and the programs have important impacts on their ultimate legal outcomes, but we have almost no accessible information about what requirements people are being asked to meet once they're in the programs and exactly what criteria are being used to determine whether they're successful or not once they're in there.

I reached out for public records requests about a huge number of programs for the book. Many large urban programs said that they just don't collect data at all on how many people are diverted, what kinds of cases are diverted, whether people are able to complete the programs. It’s this black hole that is concerning and is a real barrier to understanding how our legal system works and how decisions are being made that can alter the courses of people’s lives.