Support Services or Arrest? A Thurston County Program Aims to Give Some Offenders a Choice

Posted

Thurston County is setting up a new program that would offer non-violent, low-level offenders support services rather than arrest or jail time.

This version of the Law Enforcement Assisted Diversion (LEAD) Program has been in the works in Thurston County over the last few years and comes after neighboring Mason County implemented a similar program.

The first version of the LEAD program was developed and launched in Seattle in 2011, where it focused on crimes such as drug possession and sales as well as prostitution, according to the LEAD National Support Bureau.

The Thurston County board of commissioners approved a $9.25 million contract with the Washington State Health Care Authority on Jan. 11. The contract allocates funding for a pilot version of the full program, which may be extended through June 30, 2023, under the contract.

Details of the program are still being decided but the county aims to start diverting individuals away from jail time by the summer, said county senior epidemiologist Mary Ann O'Garro, who is helping coordinate the program's formation from within Thurston County Public Health and Social Services.

In the coming months, the health department will need to establish an advisory board that reflects the greater community, O'Garro said. Such a board could include representatives from community-based organizations, local government, law enforcement, public defense, the prosecutor's office, public health and people who have lived experience with the criminal justice system, she said.

"LEAD is a program that is community based, and so for it be effective, it needs a quality advisory board," O'Garro said. "That's really important."

From there, the board will cooperate with the Prosecuting Attorney's Office along with participating law enforcement agencies to determine what types of offenders can be diverted.

For now, O'Garro said the program will aim to address low-level, non-violent crimes resulting from behavioral health concerns such as substance abuse and mental health.

"Every community is a little bit different about what that balance is," O'Garro said. "Generally, what you're seeing is people who have unmet needs ... and they are coming into frequent contact with law enforcement. That's really who a LEAD program tends to serve."

How the Mason County LEAD program works

Examples of LEAD programs can be found across the nation, including in neighboring Mason County, which set up its program in June 2020.

Program director Abraham Gardner said their LEAD program finally came together, like Thurston's is, after securing grant funding for a pilot version of the program from the state Health Care Authority.

"There were many discussions beforehand," Gardner said. "It was multiple years of, 'What is the program? What would it look like? How would it best fit in Mason County?'"

Being a smaller community likely helped Mason County set up their program relatively quickly, Gardner said. Once they secured the contract for the pilot, he said it only took about four months to fully implement the program.

Gardner said there are three ways someone may be diverted or referred to support services as part of their program. In all cases, participating in the program is optional.

Law enforcement officers use their discretion to divert people engaging in particular law violations. Crimes that can lead to diversions in Mason County include trespass, vehicle prowl, third-degree theft, second-degree burglary, possession of drug paraphernalia, obstruction and third-degree assault.



Eligible crimes also include noise ordinance violations, park ordinance violations, disorderly conduct, public urination, unlawful transit conduct, fourth-degree assault, possession of stolen property, and minor in possession charges against 18 to 21 year olds.

In addition to arrest diversion, law enforcement officers can refer people they've simply been in contact with, but haven't arrested. Gardner said this option allows law enforcement to proactively offer referrals to people who may benefit from them.

"We didn't want to have to wait for folks to commit law violations for our law enforcement partners to refer folks that they were encountering to the program," Gardner said.

Lastly, there's a community referral piece to the program that allows any Mason County agency to offer referrals to people.

Impact of recent court ruling on drug possession

Until recently, simple possession of a controlled substance qualified as a crime that could lead to a diversion in Mason County.

However, on Feb. 25, the state Supreme Court found that drug possession law unconstitutional because it criminalized passive, unknowing conduct. As a result, prosecutors across the state have been forced to drop pending cases and vacate sentences for simple drug possession.

Suddenly, one of the crimes that Mason County's LEAD program covered evaporated. This prompted the county to review how many people were confined within their jail for simple drug possession. What they found may exemplify the success of their LEAD program, Gardner said.

"There was no one in our jail that was there for simple possession because they had been referred to LEAD the previous month leading up to that," Gardner said. "I think that's a really good indication that our program is starting to take root and working well."

In Thurston County, at least two people had their pending cases for simple drug possession dropped, allowing them to be released from custody, prosecuting attorney Jon Tunheim said.

In pre-pandemic circumstances the number of people in jail for this crime would likely be higher, but COVID-19 related challenges have forced the county to limit who gets booked into the county jail and charged for a crime.

In any event, a LEAD program would have helped Thurston County divert such cases away from the justice system.

Tunheim said simple drug possession violations could have been a good fit for Thurston County's LEAD program. Now, he said law enforcement will have to change how they approach people who simply possess drugs.

"It will change the way (officers) will have to do this because they won't be able to say to the person, 'Look you know either I can arrest you or you go to the diversion program,'" Tunheim said. "It's going to be much more of a community, voluntary referral kind of program."

Patrick O'Connor, director of public defense for the county, said he thinks the Supreme Court's decision aligns with what the Thurston County diversion program aims to achieve: keeping people who simply use and possess controlled substances out of the justice system.

"Those law enforcement interactions with individuals that have a substance abuse disorder still need those services and referrals to keep them out of the justice system," O'Connor said. "We just have to, in light of this decision, have those conversations moving forward."