Critical Diversion

cover_2016CPPButts, Jeffrey A. (2016). Critical diversion — Policy essay. Criminology & Public Policy, 15(3): 983–989.

[I]mproving the effectiveness of diversion will require a sincere effort to leverage the best research knowledge about juvenile justice interventions. Research-based practices, however, must include interventions addressing the full range of factors that lead young people to become involved in the justice system. Some of these factors have already been investigated by competent researchers and have been developed into evidence-based models. Many have not been tested at all. Juvenile justice knowledge is not an established canon; it is organic and ever-changing. Researchers do not already know everything there is to know about reducing recidivism and keeping youth out of the justice system. Any practitioner who believes otherwise is being misled and will likely misuse the tools of diversion and fail to serve youth, families, and communities.

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POLICY ESSAY

JUVENILE COURT AND DIVERSION

Critical Diversion

Jeffrey Butts
John Jay College (CUNY)

Daniel Mears, Joshua Kuch, Andrea Lindsey, Sonja Siennick, George Pesta, Mark Greenwald, and Thomas Blomberg (2016: 953–981) review the complications of policy, practice, and research that prevent juvenile justice systems from making more effective use of diversion or the policy that encourages the use of less formal and less severe responses to youthful offending. Juvenile diversion may be implemented by a police officer who escorts a young person home rather than making an arrest. It could be deployed by a prosecutor who encourages a youth to comply with informal sanctions in lieu of court proceedings, or it could be carried out by a juvenile court or juvenile probation agency when it provides a less serious response for an offense simply to give a deserving young person a second chance to learn from his or her mistake and avoid future legal troubles. Diversion provides a legal response of less severity than would otherwise be justified, but it requires the youth to participate in some form of alternative. Outright dismissal of possible delinquency charges is not diversion. As Mears et al. point out, however, this definition has not been followed consistently in the research literature, which only adds to confusion in the field.

Mears et al. (2016) examine the historical roots of diversion and note the dearth of rigorous research that would be needed to guide the implementation of core concepts. The article misses several important issues, however, and these limitations derive from a common source—a failure to incorporate a critical, sociological understanding of juvenile law and juvenile justice. The article accepts the conventional, conservative understanding of juvenile justice. Namely, that American juvenile justice was invented and continues to exist primarily to “help children” and “save them from a life of crime.”

Of course, this is the dominant interpretation among mainstream writers and scholars (e.g., Bernard, 1992; Scott and Steinberg, 2008; Tanenhaus, 2004), but to understand the true foundations of juvenile justice as well as contemporary obstacles to effective diversion, a critical reader must look beyond the public statements of advocates. We understand the behavior of social institutions only when we identify the full array of social forces that lead to their formation and perpetuation. In the case of juvenile justice, this means understanding that the system exists at least in part because it meets the needs of economic and political interests that favor social order and social control over poor communities, immigrants, and people of color.

The nineteenth-century social activists who helped to create the first juvenile court worked hard to fashion a separate system for juvenile delinquents, and many of their arguments fit nicely with the conventional reform narrative, but this is not “why” we have juvenile justice today. Critical historians and social researchers (e.g., Platt, 1977; Rothman, 1980; Schlossman, 1977) investigated court records and bureaucratic communications during the period when the American system of juvenile justice emerged. They showed that the child savers and liberal advocates succeeded not because they were such brilliant organizers and rhetoricians, but because their ideas were welcomed by conservative, public safety interests.

By the late nineteenth century, police and prosecutors had grown tired of seeing young offenders avoid punishment in criminal (adult) courts. They liked the idea of handling younger offenders in a separate forum where judges would be empowered to act without all the bothersome red tape that comes with defense lawyers and procedural protections. Police officials and system actors may have aligned themselves with the arguments of the Progressives during public discussions, but when researchers reviewed the historical record and the actual behavior of police, prosecutors, and judges, a different picture emerged. It became clear that early twentieth-century legal authorities embraced the new juvenile justice system because it allowed for tougher punishments of young offenders, especially the new immigrants of the day (Irish, Italians) and the swelling number of southern Blacks who were then moving to northern cities in search of job opportunities (Butts and Mitchell, 2000; Feld, 1999; Ward, 2012). The juvenile court was a new way for European elites to suppress urban youth crime more freely and more aggressively.

Understanding this fuller history of the juvenile justice system is important for any contemporary investigation into its supposed flaws and failures. When a conventional analysis examines the inability of a juvenile system to take advantage of diversion, the narrative tends to dwell on bureaucratic inefficiencies and poorly implemented policies. Considered through a more critical lens, however, it is not surprising that juvenile diversion creates net-widening and expands the reach of the justice system. Justice systems always describe themselves in terms of their official or manifest mission—that is, to protect public safety and reduce crime. Their actual behavior, however, is best explained by examining their latent mission as well, which is to demonstrate a severe and retributive response to social deviance, whether or not it is factually related to the broader concept of public safety. Researchers should judge organizational systems by what they do, not by what they say they do.

With these caveats, however, Mears et al. (2016) succeed in identifying many of the most critical concerns about the inability of juvenile justice systems to deploy effective diversion strategies. Even acknowledging that juvenile justice systems pursue a range of official and unofficial goals, popular support for the concept of diversion persists and it is important for researchers to understand how that support is blocked by the realities of implementation.

Is Diversion Salvageable?

The Mears et al. (2016) article acknowledges that modern juvenile justice systems pursue two competing, often contradictory missions—social welfare and punishment. Diversion schemes may be used for either purpose. By providing less formal responses for minor offenses and first-time offenders, diversion increases the justice system’s ability to hold young people “accountable” and often with less bureaucracy and lower cost. This same punishment-made-easy motivation led to the development of the juvenile justice system in the first place.

If done appropriately, of course, diversion may deliver helpful interventions for young people and prevent further court contact before their involvement with the justice system becomes truly harmful. As pointed out by Mears et al. (2016), many jurisdictions have launched court alternatives in recent decades that provide some pomp and circumstance of the court process with less permanence and less stigma. Alternatives such as teen courts, juvenile drug courts, mental health courts, and civil citations (the focus of Mears et al.), may allow young offenders to experience some contact with the legal system without becoming deeply ensnared.

The Mears et al. (2016) article identifies several important benefits that could accrue to youth and to communities when diversion alternatives are used effectively. Diversion allows youth to avoid lifetime consequences for mistakes that may be attributable to the famously poor judgment of adolescents. Minimizing contact with the legal system prevents many of the harmful consequences of official justice actions. The article notes, however, that even successful implementation of diversion entails risks for youth and families. For example, researchers have long documented that diversion increases the system’s scrutiny of offenders. A youth participating in an informal sanction faces a greater likelihood of additional justice contact, and diversion is not readily offered a second and third time. The risks are even greater when youth are required to admit responsibility for previous offenses to qualify for diversion. Taking advantage of a diversion offer in one case could result in adjudication by default in a subsequent case. In a sense, diversion could end up adding more legal jeopardy for youth who are likely to have more than one contact with law enforcement during their adolescence. Moreover, if a youth refuses an offer of diversion, this may be interpreted as a sign of defiance, which prompts the court to order more severe sanctions than may have been the case were diversion never involved.

In today’s juvenile justice system, the benefits of informal handling have been eroded somewhat by the trend toward greater transparency in police and court records. Especially during the get-tough years of the 1990s and early 2000s, many states reduced the confidentiality of juvenile court proceedings and juvenile court records. For decades, teenagers were protected from the lifelong effects of their legal indiscretions by state laws ensuring the confidentiality of juvenile records. Once young people had successfully navigated the rough waters of adolescence and made it safely ashore to young adulthood, they could confidently apply for employment and housing while claiming to have no criminal record. This confidentiality was once an integral part of the juvenile justice model. Lawmakers knew that publicly designating a juvenile as a law violator would stigmatize a young person and only encourage the adoption of a deviant self-image.

As juvenile justice became more contentious during the 1990s, support for these once core protections declined (Henning, 2004). Practical issues such as jurisdictional information sharing and greater media interest in juvenile court proceedings began to win out over confidentiality. Most states opened juvenile court proceedings or records to the public and to the media in at least some cases. By the early 2000s, every state had enacted some form of legislation expanding the release and publication of names and addresses of juvenile offenders. States began to allow more juveniles to be fingerprinted and photographed, and many either required juvenile records to remain open longer or they prevented the sealing or destruction of records entirely.

The economic structure of modern juvenile justice exposes justice-involved youth to risks, and these risks may be worse in jurisdictions making broad use of diversion. By necessity, juvenile justice systems must involve private providers and contracted vendors. It is simply not possible for any public system to operate the wide array of services required for juvenile justice interventions, including mental health and behavioral health services, drug treatment programs, mentoring, employment readiness, family therapies, tutoring and other educational programs, and various health supports.

Delivering services through contracts with private providers, however, inevitably raises conflicts of interest. Mears et al. (2016) point out that private providers compete for funding and they will work to sustain an adequate stream of revenue. When their company’s viability depends on a steady stream of client referrals from the juvenile justice system, vendors will pressure system officials to make broad use of their services. Therefore, decisions about diversion will be affected by organizational self-interests as well as by the interests of young people.

Of course, these same risks are presented by public juvenile justice agencies. All organizations pursue their interests first. Publicly funded organizations pursue their interests even when they may conflict with those of their clients. As the nationwide crime decline reduced juvenile justice caseloads during the 1990s and 2000s, the system seemed to respond by lowering the severity threshold required for out-of-home placement (Butts, 2012). In fact, the largest contributor to total growth in delinquency placements between 1985 and 2008 were juvenile cases involving obstruction of justice. The number of obstruction cases referred to juvenile courts grew from 66,200 to 211,600 between 1985 and 2008, and although the overall probability of placement remained small, the placement rate remained high enough so that obstruction cases accounted for one third of the overall growth in placements during that period. The next largest contributors were simple assault, drug law violations, vandalism, and disorderly conduct cases. Together, these offenses accounted for 90% of the total growth in juvenile placements since 1985. Public agencies respond to existential threats just as much as private agencies do. If diversion reduced the apparent need for public juvenile justice resources, the system would certainly act to undermine diversion, either by reducing access to diversion or widening the net of intervention overall.

Research as a Process

Most of the discussion by Mears et al. (2016) is informative and well supported, but the article also falls prey to a familiar disorder among contemporary criminal justice and criminological research. In a section partly titled “Unclear Theoretical Logic,” the article clearly suffers from that very thing. It succumbs to reductive models that purport to understand all the causes of recidivism simply by reviewing the findings of existing research on correctional interventions—even though the bulk of investment in treatment research during the past 30 years has concentrated on therapeutic models, most notably family therapy and various forms of cognitive-behavioral interventions.

Clearly, the justice field knows a lot more than it used to know about the effectiveness of therapeutic interventions, but this is not the same thing as knowing everything about effective strategies for reducing crime and preventing justice involvement. Researchers only learn about the topics and questions that they investigate, and persuasive investigations require economic resources. Research investments are not unfettered. They are shaped by politics, ideology, competition, and class interests. When justice policies and practices blindly follow the latest stream of findings from the most lavishly funded research projects, the justice system becomes a mere reflection of past investment decisions by governments and philanthropies. An effective juvenile justice system would not simply implement the interventions preferred by government officials and Foundation officers. Instead, it would build a collection of models that was consistent with the best knowledge about how and why young people become entangled in the justice system and what skills they need to avoid future contact, and many of these skills cannot be taught by professionals working for the justice system (Fader, 2013).

Unfortunately, juvenile justice research today is not focused on the need to build a solid and varied juvenile justice system. Instead, researchers pursue duplicative studies of the most celebrated program models or interventions associated with the most recent public advocacy campaign. Research on juvenile justice programs is not conducted by impartial investigators on a quest for truth and justice; instead, it is conducted by people in heated competition for grants and publications. Evaluation research is a competitive field, which is certainly fine for motivating researchers but perhaps not so fine for setting the national research agenda.

A research agenda targeted on overall system effectiveness would identify the most pressing needs for evidence and then build that evidence with intention and efficiency, while avoiding redundancy. To accomplish this, researchers need to work with partners—community agencies, neighborhood leaders, youth themselves, and the families of youth involved in the justice system. The juvenile justice system will be more successful, of course, when it is informed by research findings, but researchers cannot be the only source of guidance for the design of effective program models.

For the youngest and lowest risk offenders, the justice system’s role should be secondary and involve merely coordinating and supporting the efforts of community-based groups and partners from the schools and social services. This suggestion clearly does not mean that the juvenile justice system should turn its back on prevention and early intervention. It just needs to do those things with a light touch, by working creatively and in partnership with other systems, especially community-based programs and neighborhoods. Formal justice action should only occur when these light-touch efforts have failed or when a case is serious enough to preclude more basic early intervention and prevention.

Unfortunately, since juvenile justice was overtaken by the new evangelism of “evidence-based” policy and practice, the field has become dangerously imbalanced. Private providers and government contractors compete for funding by implementing the handful of models that merit the term “evidence-based,” but still very few models qualify. This is not because there are so few good ideas in the field of juvenile justice. It is because the infrastructure for developing and testing program effectiveness is still meager. Researchers do not have the resources required to test sufficient numbers of programs with the rigorous methods needed to pronounce them as reliable and effective. The field is not even close to developing, testing, and refining enough effective programs, and it is certainly a long way from having a full and balanced menu of juvenile justice interventions.

Conclusion

Diversion should remain a core component of the juvenile justice system, but it is endangered on many fronts. First, it is not clearly and consistently defined. Like “freedom” and “equality,” diversion is easy to defend in the abstract but tricky to implement in practice. Second, it is common for policy makers and practitioners to express their support for diversion while they collaborate to undermine it or to use policies that contradict its goals. Researchers need to judge the impact of any juvenile justice practice according to what it does and not according to what symbolic value it may offer. If diversion is used to expand the reach of the justice system and to impose potentially risky interventions on less serious offenders with little promise of real preventive effect, the practice should be ended and juvenile defense attorneys should fight it vigorously.

Third, and finally, improving the effectiveness of diversion will require a sincere effort to leverage the best research knowledge about juvenile justice interventions. Research-based practices, however, must include interventions addressing the full range of factors that lead young people to become involved in the justice system. Some of these factors have already been investigated by competent researchers and have been developed into evidence-based models. Many have not been tested at all. Juvenile justice knowledge is not an established canon; it is organic and ever-changing. Researchers do not already know everything there is to know about reducing recidivism and keeping youth out of the justice system. Any practitioner who believes otherwise is being misled and will likely misuse the tools of diversion and fail to serve youth, families, and communities.

References

Bernard, Thomas J. 1992. The Cycle of Juvenile Justice. New York: Oxford University Press.

Butts, Jeffrey, 2012. Less Serious Offenses Account for 90 Percent of the Growth in Juvenile Placements (DataBits 2012-08). New York: Research and Evaluation Center, John Jay College of Criminal Justice.

Butts, Jeffrey A. and Ojmarrh Mitchell. 2000. Brick by brick: Dismantling the border between juvenile and adult justice. In Criminal Justice 2000, vol. 2. Washington, DC: National Institute of Justice, U.S. Department of Justice.

Fader, Jamie J. 2013. Falling Back: Incarceration and Transitions to Adulthood among Urban Youth. New Brunswick, NJ: Rutgers University Press.

Feld, Barry C. 1999. Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.

Henning, Kristin. 2004. Eroding confidentiality in delinquency proceedings: Should schools and public housing authorities be notified? New York University Law Review, 79: 520–611.

Mears, Daniel P., Joshua J. Kuch, Andrea M. Lindsey, Sonja E. Siennick, George B. Pesta, Mark A. Greenwald, and Thomas G. Blomberg. 2016. Juvenile court and contemporary diversion: Helpful, harmful, or both? Criminology & Public Policy, 15: 953–981.

Platt, Anthony M. 1977. The Child Savers: The Invention of Delinquency. Chicago, IL: University of Chicago Press.

Rothman, David J. 1980. Conscience and Convenience: The Asylum and its Alternatives in Progressive America. Glenview, IL: Scott, Foresman and Company.

Schlossman, Steven L. 1977. Love and the American Delinquent. Chicago, IL: University of Chicago Press.

Scott, Elizabeth S. and Laurence Steinberg. 2008. Rethinking Juvenile Justice. Cambridge, MA: Harvard University Press.

Tanenhaus, David S. 2004. Juvenile Justice in the Making. New York: Oxford University Press.

Ward, Geoff K. 2012. The Black Child Savers: Racial Democracy and Juvenile Justice. Chicago, IL: University of Chicago Press.

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Jeffrey Butts (Ph.D., University of Michigan) is director of the Research and Evaluation Center at John Jay College of Criminal Justice, City University of New York (CUNY). Previously, he was a research fellow with Chapin Hall at the University of Chicago and before that director of the Program on Youth Justice at the Urban Institute in Washington, DC.

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