Justice advocates have long sought to divert children from the criminal justice system after early brushes with the law to avoid deeper involvement, such as sending a shoplifter off with a warning or providing counseling to students who fight at school. Now, a new report reveals how unavailable and inequitable those alternative pathways can be.
The study released Tuesday by a leading Washington, D.C., research and advocacy group argues there’s “unequal and limited use of diversion from court involvement, particularly for Black youth,” with disparities seen within every major offense category.
“Overwhelming research finds that diverting youth from the court system yields better outcomes for young people’s futures and for public safety,” said Richard Mendel, a senior research fellow at The Sentencing Project and lead author of the report. “Yet diversion remains sorely underutilized, especially for youth of color, and unequal treatment in diversion is a key driver for even larger disparities in confinement later in the process.”
Mendel cites research finding that in 2019, white youth were diverted in 52% of delinquency cases nationwide, whereas Black youth were diverted in only 40% of cases. For Latino, Indigenous, and Asian American youth, diversion occurred in 44% to 48% of cases.
The Sentencing Project, which conducts research and advocates against imprisonment and criminalization of youth and adults, is also calling attention to efforts across the country to more deeply embed diversion in law enforcement practice.
Diversion involves police and prosecutors referring youth who act out in antisocial ways to a community-based program, or simply sending them off with a warning, instead of with charges and a court date.
Youth advocates argue that, too often, typical adolescent misbehavior and impulsivity is mischaracterized as a crime, particularly when youth of color are involved. That prompts a heavy-handed response when a more appropriate intervention might be therapy, or engagement in a social service program — and no 911 call at all.
Kristin Henning, a longtime juvenile defense attorney and national advocate based in Washington, D.C., has had scores of clients who did not get such a chance. In her new book “The Rage of Innocence: How America Criminalizes Black Youth,” she describes one. The high schooler she calls Sharice ends up facing a robbery prosecution after a school security officer spots her snatching her boyfriend’s cell phone during a quarrel.
“This is not a robbery — it’s not even really a crime. Yet this is a child who comes in the front door of the courthouse ineligible for diversion in most cases,” said Henning, a Georgetown University law professor and director of the school’s juvenile justice clinic. She emphasized that research shows Black youth, in particular, are often viewed as much older than they are. “We exclude kids from diversion by the labels we put on them, while ignoring the key features of adolescence that are underneath them.”
For decades, when officers have responded to reports of a crime, the presumption has been they will try to make an arrest, then pass the case to a prosecutor to bring to court.
But increasingly, reformers want cities, counties or states to make diversion a presumption for specific youth offenses, especially common lower-level charges such as trespassing, disorderly conduct or shoplifting. In some cases, they argue, diversion is appropriate for higher-level charges as well, including assault and robbery, crimes that might be examples of how youthful indiscretion can be overcharged, as in Sharice’s case.
In San Francisco’s Make it Right program, for example, teens facing first-time felony charges for burglary, assault and vehicle theft are given a choice to complete a restorative justice program run by a community-based organization. Participants can close their cases with no additional penalties and avoid a criminal record if they complete the program. A subsequent study found those who were diverted were far less likely to be re-arrested.
Diversion plans at work nationwide
Diversion reforms are now being enacted across the country. In 2018, Los Angeles County supervisors unanimously approved a plan to divert up to 80% of youth accused of low-level delinquency offenses, prior to an arrest. Youth who participate in restorative justice programs will have their case closed without record, if they avoid-re-arrest for one month.
The prosecuting attorney in King County, Washington has implemented a similar plan. Last October, that office announced that in 2020, it had diverted more juvenile cases than it had filed in the prior year.
Douglas Wagoner, a spokesperson for the county’s head prosecutor Dan Satterberg, said three programs were responsible for the change, all launched after the office created its first-ever juvenile division in 2017. They focused on truancy-related offenses and out-of-control behavior at home, and a restorative justice program now known as CHOOSE 180. Satterberg’s office has sent hundreds of youth referred by one of King County’s 39 police departments through those diversion initiatives.
“The game here isn’t how we can correct behavior or support behavior change by deepening the young person’s involvement with the court system,” said Sean Goode, the executive director of CHOOSE 180, nonprofit that is now run separately from the prosecutor’s office. “The game here is how do we keep them as far away from the court system as possible and support them in behavior change?”
One diversion program in Houston, Texas became a casualty of the pandemic. Previously, it had been based out of Attucks Middle School, where most students are youth of color. The project had been funded by Harris County, and involved My Brother’s Keeper, the local child welfare agency, and reVision Houston.
Janis Bane, a staff analyst for My Brother’s Keeper, described the impact the program had on children before it ended.
“I saw them come in, upset, frustrated, angry, and within five minutes in between classes, they were feeling better, and went on to class,” Bane said. “So the quality of having that support there in the hallway in a classroom, I think was really important.”
Diversion gets some pushback
Diversion programs are not always widely embraced, however.
An increase in violent crime among adults during the pandemic has prompted backlash to various progressive reforms that affect juveniles — even as the crime committed by youth declined in 2020, according to national data. At an early August public debate for candidates seeking to replace the retiring Satterberg as the lead prosecutor in King County, his office took criticism for its new Restorative Community Pathways youth diversion program.
Former King County prosecutor and now-candidate Jim Ferrell argued the program excused serious offenses from a judge’s supervision and monitoring, including bringing a gun to school and felony harassment.
“Clearly, we want to make sure people get back on track, but they have got to appear before a judge, they have got to get a case number, and we need to make sure they actually showed up and did what they were asked and required to do,” he said in an article published by the Snoqualmie Valley Record.
Wagoner, the spokesperson for Satterberg’s office, acknowledged such critiques, but offered a reason for the public to invest in such programs.
“These narratives around public safety are one of the biggest barriers to this work, as well as putting our collective money where our mouth is as public officials to build alternative programs or complementary programs to the justice system — so there’s actually something to divert to,” Wagoner said. “There’s not a lot of options to divert to, there’s only the justice system as it exists now and has existed for hundreds of years.”
Still, there’s little scientific evidence that specific progressive reforms such as diversion has contributed to recent increases in violent crimes, a small number of which are committed by minors. And recent research has deepened understanding of the relationship between diversion, public safety and youth development.
The Sentencing Project report cites a 2021 study that followed 1,200 young people in southern California, Louisiana and Pennsylvania. The study’s lead author Elizabeth Cauffman found those who were not diverted were more likely to be re-arrested, incarcerated or engaged in more violence. They were also less likely to graduate high school within five years.
In an interview, she explained the uniquely thorough study design further: “We wanted to make sure — did they just divert the ‘good’ kids? We selected kids with similar backgrounds, statistically controlled for a host of variables, and tested whether there were any differences between those diverted and those formally processed. The answer to that was no,” said Cauffman, a professor of psychological science in the School of Social Ecology at the University of California, Irvine. “Giving diversion more of an opportunity to be one of the outcomes, can help eliminate a lot of the long term negative outcomes of justice involvement as well as improve community safety.”
The Sentencing Project report also points to a range of factors limiting diversion’s effectiveness more broadly. Many states, cities and counties have no official policies on how and when to divert. And often, diversion programs come with onerous fines or fees, or requirements to visit probation or prosecutors’ offices — “informal” involvement with criminal justice systems without any of its due process protections.
Sean Goode, executive director of Washington’s CHOOSE 180, echoed another concern: That the system doesn’t try hard enough to engage youth and families in meaningful services to make diversion stick. Tracking them down amid precarious circumstances can be a struggle for a criminal system that wasn’t built for that kind of helping hand.
“We should look at the obvious barriers for a young person referred to diversion: Often, the address we’re provided isn’t accurate. The telephone numbers are not accurate, particularly for young people,” he said. “And as a result, their families are likely more transient, so that letter that shows up saying, ‘Hey, you’re eligible for this program.’ It doesn’t actually reach the families that need it the most.”
Still, Goode, Cauffman and others praised The Sentencing Project for surfacing such issues.
“There’s lots of places around the country that are really good at diversion, and other places that rarely do it. It goes back to justice by geography — where you live and what the opportunities are,” said Cauffman. “Can we think of more and more creative ways to have diversion? The fact that this report is coming out is exciting, because it’s going to open that door off taking science to the streets.”