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. Referral to a social service or other agency Probation obligations
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. What is missing in these statutes?
Minnesota Statute § (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
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. Confidentiality of diversion records?
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?