What is Diversion in Juvenile Justice?

Posted October 22, 2020, By the Annie E. Casey Foundation

Juvenile diversion program

Juve­nile diver­sion pro­grams and approach­es hold youth account­able for their behav­ior with­out resort­ing to legal sanc­tions, court over­sight or the threat of con­fine­ment. An exam­ple is hav­ing a school prin­ci­pal, rather than the juve­nile jus­tice sys­tem, deal with a young per­son who is tru­ant. Regard­less of the form diver­sion takes, its goal is for young peo­ple to mature into adult­hood with­out being thrown off track by the neg­a­tive effects of jus­tice sys­tem involve­ment, includ­ing a crim­i­nal record that can seri­ous­ly dam­age young people’s future oppor­tu­ni­ties for employ­ment and high­er education.

The Annie E. Casey Foun­da­tion has called for juris­dic­tions to sig­nif­i­cant­ly expand their use of diver­sion and address pre­dictable ado­les­cent mis­be­hav­ior out­side of the court sys­tem. This requires appro­pri­ate respons­es — includ­ing the option of doing noth­ing beyond warn­ing and releas­ing youth in many cas­es — that align with research and have the high­est like­li­hood of max­i­miz­ing young people’s success.

Does juve­nile diver­sion work?

Yes, diver­sion is more effec­tive in reduc­ing recidi­vism than con­ven­tion­al judi­cial inter­ven­tions accord­ing to peer-reviewed research. When youth assessed as low risk are divert­ed, they are 45% less like­ly to reof­fend than com­pa­ra­ble youth fac­ing for­mal court pro­cess­ing. In oth­er words, it’s more effec­tive for juve­nile courts and pro­ba­tion agen­cies to issue a warn­ing and stay out of the way. This find­ing is con­sis­tent with research that most young peo­ple age out of delin­quent behav­ior with no inter­ven­tion, but sim­ply by grow­ing up. In a sep­a­rate study, respons­es such as coun­sel­ing, skill build­ing and restora­tive jus­tice reduced reof­fend­ing by 10% com­pared with 1% per­cent reduc­tions from pro­ba­tion supervision.

Which youth should be divert­ed from for­mal court processing?

As a rule, young peo­ple should be divert­ed unless they demon­strate a sig­nif­i­cant threat to pub­lic safe­ty; for exam­ple, they have been accused of com­mit­ting a seri­ous vio­lent felony or have a his­to­ry of seri­ous or chron­ic offending.

How com­mon is juve­nile diversion?

In 2018, 41% of juve­nile refer­rals nation­wide were divert­ed, accord­ing to the fed­er­al Office of Juve­nile Jus­tice Delin­quen­cy and Pre­ven­tion. Of the 59% of U.S. delin­quen­cy refer­rals that were for­mal­ly processed, only 6% were for vio­lent offenses.

A sig­nif­i­cant share of cas­es for­mal­ly processed still involve youth who are assessed as low risk and have lit­tle or no pri­or record of delin­quen­cy,” said Jaqui­ta Mon­roe, a senior asso­ciate at the Foundation.

Could more youth be safe­ly diverted?

The Casey Foun­da­tion cal­cu­lates that at least 60% of juve­nile cas­es — and like­ly a larg­er per­cent­age — could be safe­ly divert­ed if for­mal pro­ba­tion was lim­it­ed to only youth with seri­ous offens­es or those oth­er­wise assessed to be a risk to pub­lic safe­ty. Some juris­dic­tions have already met or exceed­ed that tar­get. For instance, 60% of Mult­nom­ah Coun­ty, Ore­gon youth referred to court in 2016 were diverted.

Many cas­es (32%) were sim­ply dis­missed by pros­e­cu­tors, and the rest were han­dled by com­mu­ni­ty-based or pro­ba­tion-admin­is­tered juve­nile diver­sion pro­grams. Like­wise, Washington’s Pierce Coun­ty has divert­ed 82% of youth referred to court on delin­quen­cy charges in each of the past three years (2017 – 19).

Who decides to divert youth? When?

Juve­nile diver­sion deci­sions are most often made by police offi­cers, edu­ca­tors, pros­e­cu­tors, judges or oth­er court staff and can occur at any of three stages:

  1. Pri­or to arrest: The first oppor­tu­ni­ty for diver­sion is for police offi­cers not to make an arrest or for school offi­cials not to involve police or ini­ti­ate a court refer­ral when con­fronting youth involved in minor law­break­ing behav­ior at school.
  2. At the pros­e­cu­to­r­i­al lev­el: After an arrest, pros­e­cu­tors can decide there’s no threat to pub­lic safe­ty and it is not in the inter­est of the young per­son to refer the case for for­mal pro­cess­ing in juve­nile court.
  3. At juve­nile court intake: Once youth have been referred to juve­nile court by pros­e­cu­tors, juve­nile court intake offi­cers or judges could decide that for­mal pro­cess­ing would nei­ther make the pub­lic safer nor ben­e­fit the young person.

Is juve­nile diver­sion con­sis­tent from place to place?

No, diver­sion prac­tices vary quite a bit from place to place, with vari­a­tions relat­ed to:

  • when diver­sion occurs, such as pre-arrest, pre-pros­e­cu­tion or pre-adjudication;
  • who makes the diver­sion deci­sion (for exam­ple, police, pros­e­cu­tion, pro­ba­tion or the court);
  • the eli­gi­bil­i­ty and exclu­sion cri­te­ria, both writ­ten and unwritten;
  • whether ser­vices are attached and, if so, whether they are vol­un­tary and pro­vid­ed in a cul­tur­al­ly rel­e­vant context;
  • whether fees are charged;
  • whether the young per­son must admit to the accu­sa­tion; and
  • whether sanc­tions could be imposed if the young per­son does not meet the system’s expectations.

Are there dis­par­i­ties in diver­sion for juveniles?

Yes, youth of col­or are divert­ed from juve­nile court far less fre­quent­ly than their white peers. Despite hav­ing poli­cies that are meant to be equi­table, sys­tem deci­sion mak­ers are more like­ly to divert white youth from for­mal pros­e­cu­tion — and to deem them suc­cess­ful­ly divert­ed — than their peers of col­or. The best nation­al data avail­able indi­cates that 48% of cas­es against white youth are han­dled infor­mal­ly, com­pared to only 37% of cas­es against Black youth. Dis­par­i­ties in diver­sion have per­sist­ed across time and offense types. In fact, a white youth involved in an offense against a per­son, such as aggra­vat­ed assault, is more like­ly to be divert­ed than a Black youth involved in an offense against pub­lic order, such as tres­pass­ing or graffiti.

Diver­sion is often over­looked as a means to pro­mote racial equi­ty. It gives deci­sion mak­ers oppor­tu­ni­ties to improve equi­ty by con­scious­ly coun­ter­ing the sig­nif­i­cant dis­par­i­ties that begin at arrest and per­sist through­out the juve­nile jus­tice system.

What hap­pens when a youth is divert­ed from the juve­nile jus­tice system?

Depend­ing on indi­vid­ual cir­cum­stances, diver­sion can range in inten­si­ty. Options include warn and release — which means that par­ents, guardians, school staff and oth­ers in the com­mu­ni­ty, rather than the jus­tice sys­tem, address the mis­con­duct — and restora­tive jus­tice prac­tices, which use medi­a­tion to reach res­o­lu­tions. For youth with more exten­sive his­to­ries of being charged with offens­es or more sig­nif­i­cant needs, indi­vid­u­al­ized ser­vice plans might offer refer­rals to one or more inter­ven­tion pro­grams, often led by neigh­bor­hood-based orga­ni­za­tions or human ser­vice agencies.

For youth who require diver­sion inter­ven­tions, juve­nile courts and pro­ba­tion agen­cies should sub­stan­tial­ly expand their part­ner­ships with neigh­bor­hood-based com­mu­ni­ty orga­ni­za­tions so that com­mu­ni­ty providers over­see most if not all diver­sion cas­es,” said Jaqui­ta Mon­roe, a senior asso­ciate at the Foundation.

What’s the dif­fer­ence between diver­sion and probation?

Diver­sion dif­fers from pro­ba­tion in sev­er­al fun­da­men­tal ways.

  • Divert­ed youth should nev­er be assigned to pro­ba­tion or super­vised by a pro­ba­tion officer.
  • There should be no pos­si­bil­i­ty of place­ment or con­fine­ment for fail­ure in diver­sion. This means that divert­ed youth should nev­er be sub­ject to court-ordered con­di­tions. Except in rare cas­es involv­ing chron­ic offend­ing and sig­nif­i­cant risk to pub­lic safe­ty, they should not face court-imposed con­se­quences for fail­ing to com­ply with a diver­sion agree­ment or contract.
  • There should be no court-imposed con­tact stan­dards to guide how often diver­sion pro­gram providers meet or speak with divert­ed youth or their families.

What diver­sion prac­tices are coun­ter­pro­duc­tive for juve­nile justice?

Juve­nile courts and pro­ba­tion agen­cies should aban­don the prac­tice of plac­ing divert­ed youth on infor­mal pro­ba­tion case­loads, essen­tial­ly pro­ba­tion lite,”” Mon­roe says. Juris­dic­tions need to insti­tute safe­guards so diver­sion doesn’t lead to coun­ter­pro­duc­tive net widen­ing, where diver­sion pro­grams end up serv­ing young peo­ple whose mis­con­duct would oth­er­wise (and more appro­pri­ate­ly) be addressed by par­ents, teach­ers and oth­ers in the community.

Fur­ther, if a diver­sion pro­gram pun­ish­es youth who dis­obey diver­sion rules by rescind­ing diver­sion and return­ing them to court, then this prac­tice can defeat the pur­pose of diver­sion by result­ing in a for­mal delin­quen­cy record.

How does expand­ing the use of court diver­sion relate to trans­form­ing juve­nile probation?

The Casey Foundation’s vision for juve­nile pro­ba­tion trans­for­ma­tion rests on two pil­lars: reduc­ing pro­ba­tion case­loads by divert­ing a greater share of cas­es from the juve­nile court sys­tem and refash­ion­ing pro­ba­tion into a more strate­gic and effec­tive inter­ven­tion for the much small­er pop­u­la­tion of youth who will remain on super­vi­sion caseloads.

This change can occur only with the coop­er­a­tion and sup­port of law enforce­ment chiefs, school admin­is­tra­tors, judges and pros­e­cu­tors, and it will require that juve­nile jus­tice lead­ers work with com­mu­ni­ty part­ners and pub­lic agen­cies uncon­nect­ed with the court sys­tem to sig­nif­i­cant­ly expand their menu of diver­sion options. Shift­ing respon­si­bil­i­ty for divert­ed youth to agen­cies unaf­fil­i­at­ed with the court will allow pro­ba­tion offi­cers to con­cen­trate their full atten­tion on the most seri­ous, and there­fore most impor­tant, pro­ba­tion cas­es — a key ingre­di­ent for suc­cess­ful pro­ba­tion reform.

Diver­sion is a win for every­one. The young per­son can grow out of age-appro­pri­ate mis­be­hav­iors with­out the con­se­quences of for­mal sys­tem involve­ment,” Mon­roe said. With few­er youth on pro­ba­tion case­loads, pro­ba­tion agen­cies can focus their resources and time on sup­port­ing the young peo­ple with the great­est need.”

Relat­ed resources:

This post is related to:

Popular Posts

View all blog posts   |   Browse Topics