Diversion Mechanisms

1. Diversion Mechanisms Class 20

2. Case of the Day • Facts: • Sept 2003 beating death of 16 year old male, assailants include two males age 16, instigator is a third male, age 17 • Victim had year long dispute with one of the killers over “egging” incident • Prime tourist location (Old Town, Alexandria VA • Two defendants were tried as adults, third in juvenile court • All three had minor records (shoplifting, B&E, trespass, joyriding in parents’ car, probation violations) • No weapon used (blunt injury trauma)

3. Circumstances • Videotape evidence shown of attack by instigator against same victim one year earlier • Instigator accused victim of egging his house • Victim fights back, hurts instigator, then apologizes • According to the judge, in his waiver order, the two accomplices and the instigator had been drinking and/or using drugs on the night of the fatal event. No evidence that victim had been drinking. One defendant had drinking problem since age 13, had drunk 11 beers that night. School problems, “scrapes with authorities” in the past. The other had history of mental health problems, diagnosed as bipolar, ran away from home to avoid private MH placement • Four blows, one which sounded like “gunshot” • Victim backed away, did not resist

4. Chronology • Attack took place Sept 13, 2003 • Prosecutor implores judge not to dismiss incident as a “boyish prank” • Charges filed in criminal court in October 2003 for two assailants • They are initially charged as second-degree murder • Defense counsel contends that the incident was “foolish, reckless even stupid” but not done with malice, an element of the murder charge

5. Two defendants waived to criminal court in November 2003 • They plead guilty to involuntary manslaughter in January 2004 • The third, who was the instigator pleads guilty to same charge in juvenile court • All three had been detained prior to plea and sentencing • Parents of victim accept and endorse the guilty plea • Sentence for instigator was set by court jurisdiction: juvenile institution until reaching age 21. • For the other two, tried in adult court, Judge had choice of 10 year sentence in adult institution for accomplices or sentence to a juvenile facility until age 21 (followed by probation for 10 years, which could result in prison sentence if violated) • Your sentence? For the two accomplices? Would you have granted a motion for waiver for the (juvenile) instigator?

6. Case of the Day II The youths, serving time at Maricopa County Jail, will earn school credit for their time pulling weeds at the corner of 18th and Washington streets in Phoenix. The teens are serving sentences of less than one year for crimes ranging from drug possession to armed robbery. Sheriff Joe Arpaio called the county's juvenile chain gang the country's first. Arizona Daily Republic, March 11, 2004

7. 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

8. 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

9. 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

10. 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?

11. 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!

12. 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

13. 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

14. 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?

15. 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?

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