Diversion Mechanisms

1. Diversion Mechanisms Class 20

2. Diversion • Diversionary principles lie deep in the heart of juvenile court ideology and practice since inception • At one time, diversion was seen as balancing need for control and intervention with stigma avoidance • Institutionalized widely in late 1970s • Research suggested that diversion had little effect on recidivism • Flow control mechanism retained by the juvenile court and its bureaucratic arms for cases that do not fall into the jurisdiction of the prosecutors • At “apprehension” or referral, there is a discretionary moment when either the prosecutor or a juvenile intake officer decides whether to process the case formally or informally. • Youth can be detained prior to screening, use of detention prior to diversion varies

3. Who are screeners? Structure of decision making and gate-keeping varies from state to state and place to place within states • Prosecutors • Juvenile court intake staff (usually affiliated with probation function) • Does it matter? • Interactions between juvenile court screeners and prosecutors vary from state to state • Confidentiality of interactions between probation “screeners” and youth • If “informal adjustment,” there are still obligations that can be imposed • Counseling • Referral to a social service or other agency • Probation obligations

4. Legal Structure and Practice • Formality of Rules • CA Court Rule 1404 – procedural • CA Court Rule 1405 – criteria • Legal sufficiency of charge(s) • Seriousness • Persistence of problem leading to crime • Parent and child attitudes • Age, maturity (“sophistication”) • Prior record • Victim interests • Other circumstances • Criteria for Informal Disposition • Need for court intervention vs. family resources and capability • Court needs more time for longer observation and evaluation of child

5. Minnesota Statute § 388.24 (1997) • Probable cause • Prosecutor as gate keeper • Emphasis on restorative justice • Programs do their own screening to assist prosecutor’s decision • Tx goals, D/A assessment, counseling and other remedial services, restitution supervision • Provide information to court on progress • What is missing in these statutes?

6. Washington Statute §13.40.070 (1998) • Prosecutorial discretion • Probable cause • Allocation decision – juvenile court or informal disposition • Allocation decision codified similar to CA criteria • Devolves to probation staff if NOT a felony • Notice to parents of charges • Washington Statute §13.40.070 (1998) • Behavioral contract that specifies obligations • Max of 6 mos for misdemeanor or 1 yr for felony • “Reasonable” expectation of ability to make monetary restitution • Due process, including right to counsel • AN ENTIRE JURISPRUDENCE HAS BEEN CONSTRUCTED!

7. Trends • Trend toward formality: filing of juvenile court petition in lieu of informal supervision • Sickmund study (1999): 45% processed informally, 53% of those (27% overall) receive some type of intervention or obligation • Race effects

8. Social and Legal Tensions • Right to Diversion? Not really, statutes only speak to eligibility • 28 Wash.App 580, 624 P.2d 1180 (1981) • Net widening? Defense of net widening? • Special interests of court in child development and welfare • It’s voluntary • Involvement of community agencies in quasi-legal function of supervision and reporting – transfer coercive power to social service or mental health agency • Effectiveness of services, liability of child and family is dependent on capacity of social service agency • Balance of evidence from experiments suggests that diversion is ineffective, if not iatrogenic

9. Who is better suited to run a diversion program – prosecutor or court (via probation arm)? • Sound screening decisions • Operational management of diverse network of services • Supervision authority • Does admission of guilt (required in many tx programs) create risk or prejudice in subsequent court actions for this or later charges? • Does juvenile have right to counsel to decide whether to accept a diversion offer? Is waiver “voluntary” and “intelligent”? • Liability of child who rejects diversion offer? Is the youth subject to harsher penalties compared to obligations of diversion program? • Yes (State v McDowell, 102 Wash.2d 341 (1984) • But can’t escalate misdemeanor into a felony charge in lieu of a diversion agreement • Confidentiality of diversion records?

10. What should be the length of diversion period? • Longer than would a ‘normal’ disposition span? • When does intensity of services become punitive and subject to procedural due process? • What should be the consequences of failure? • Does diversion, whether successfully completed or not, constitute a “prior”? What is increased liability if failure in diversion for next case? • State v Quiroz, 107 Wash.2d 791 (1987) (finding that diversion counts as a “prior” in future court matters as a sentencing enhancement) • But see: In Re D.S.S., 506 N.W.2d 650 (Minn.Ct.Ap. 1993) • How should the termination decision be structured? What is success? Can it be spelled out contractually? Do agencies become powerful quasi-legal actors that determine whether there will be further punishment ? Is this good or bad?

11. Current Practices • Florida Program • Denver Program • Like Drug Courts? • How is service delivery system regulated? • Accountability diffusion? • Worth the money?