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Diversion Mechanisms
Class 20
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)
• 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
• 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
– 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?
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
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
• Who are screeners? Structure of decision making and gatekeeping 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
Legal Structure and Practice
• Formality of Rules
– CA Court Rule 1404 – procedural
– CA Court Rule 1405 – criteria
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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
• Minnesota Statute § 388.24 (1997)
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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?
• 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)
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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!
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
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
• 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?
• 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?
Current Practices
• Florida Program
• Denver Program
• Like Drug Courts?
– How is service delivery system regulated?
– Accountability diffusion?
• Worth the money?