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Juvenile diversion refers to dispositional options that attempt to avoid the stigma of an official delinquent or criminal label (Lemert 1981).

It is an overly general term because it can apply to virtually any programmed response that avoids the formality of the justice system. Historically, the exact shape of juvenile diversion has depended on the availability of various treatment and punishment options in a particular time and place. In earlier times, juvenile diversion meant the reformatory as opposed to the penitentiary and then later the juvenile court as opposed to the criminal court (Schlossman 1977). More recently, juvenile diversion refers to the avoidance of juvenile court; it has become a court from which youths are to be diverted from rather than a court to which youths are to be diverted to (Miller 1979). Moreover, the types of youths eligible for juvenile diversion tend to be those who are considered most likely to succeed through its various dispositional options (Cicourel 1968; Cohen 1985). These options include a range of programmatic and nonprogrammatic responses to common acts of delinquency by adolescents (Mears 2012). The effectiveness of these various diversionary options is an important area of policy-relevant juvenile and criminal justice research (Shelden 2008; Patrick 2005; Cocozza et al. 2005; Chapin and Griffin 2005).

This research paper begins with a brief historical review. It then proceeds in section “Definitions of Juvenile Diversion” with a definition of juvenile diversion. Section “Who is Likely to be Diverted” discusses the most likely candidates for juvenile diversion. Sections “Evaluating Successful Forms of Diversion” and “An Example of Diversion” provide an example of juvenile diversion and figures on diversion based on police arrest and juvenile court intake statistics. The concluding section presents future directions for the evaluation of juvenile diversion.

In The Beginning

The idea of diverting juveniles from the justice system appears to be as old as juvenile justice itself. Children were always considered as a category of their own. Early nineteenth-century industrialization and urbanization extended childhood into an older-age category that would be known as adolescence (Empey and Stafford 1999). This shift necessitated the need for juvenile justice. The beginnings of juvenile justice can also be considered the basis for diversionary justice. Under the common law doctrine of parens patriae, the state could act as a parent in deciding the best interests of the child even if the child turned out to be an older adolescent (Schlossman 1977). Constitutional requirements for a fair hearing were avoided merely through a judge ordering a juvenile to be placed in the care of the state. As the age of compulsory school education began to extend into older-age categories, officials required a backup diversionary system of governmental control, for example, youths who refused to attend school.

During the 1820s, houses of refuge thus appeared in large cities like New York City as a way of enforcing various status-offending categories, such as not going to school or hanging out aimlessly on the city streets. The house of refuge was the place to divert such youths not only for status-offending acts but also for common acts of theft (Pickett 1969: 20). It was framed as a residential school for the treatment of unruly youths. Most importantly, however, houses of refuge exemplified the beginnings of juvenile diversion because they were considered a more reasonable alternative to the city jails and emerging state penitentiaries (Schlossman 1977). As such, they represented a profound shift in the way that the public and its officials thought about punishment; it was no longer to be based on exclusionary punishment but inclusionary control. Juvenile diversion from criminal justice was to foster the normal return of an adolescent once he had experienced the redemptive and formative assistance of a residential school in the shape of a house of refuge, reformatory, or training school.

But by the end of the nineteenth century, diversion in the shape of out-of-home placement was no longer viewed as desirable. Instead, reformatories became known as ordinary places of imprisonment that could turn an adolescent into a serious adult criminal offender. Reports surfaced about how the house of refuge moved from just being a residential school to a brutal place of punishment (Pickett 1969). A new face to juvenile diversion was needed; this would take the form of a juvenile court. Zimring (2002) in relating the early juvenile court to juvenile diversion notes Judge Tuthill’s 1904 explanation of why the juvenile court could save juveniles from a life of crime. Tuthill explained that prior to the juvenile court, delinquents were “educated in crime and when discharged were well fitted to become the expert criminals and outlaws who have crowded our penitentiaries and jails. The state had educated innocent children in crime, and the harvest was great” (145). The juvenile court could divert juveniles from this life of crime by providing a more inclusionary form of control.

The preferred means for avoiding a life of crime was through a system of inclusionary control that avoided the isolation, criminalization, and stigma of incarceration. This kind of diversion from punishment could be organized through a juvenile court. The main method for doing so was in the shape of probation. The history of the juvenile court as a diversionary court is the history of probation as a community-based supervisory form of diversion. The advantage was not only to treat the adolescent in the community but also to save the offending juvenile from a criminal identity; that identity was conceived as ongoing, to be shaped through the malleability of childhood as extended into adolescence. The best place to create a respectable, law-abiding adolescent was to be maintained through the treatment-oriented juvenile court and its emphasis on prevention and control within the community and family.

By the beginning of the twentieth century, officials had made the case for a more all-encompassing system of juvenile diversion from criminal justice. The juvenile court would have a multitude of options as its disposal. In large cities, there would be a clinic in which to diagnose troubled youths. There would also be a separate probation department. The emerging social science of adolescence provided the justification for confirming various techniques for treating troubled youths. The stories of juvenile court reformers told of how best to divert adolescents from a life of crime (Levine and Levine 1992).

As a diversionary court of jurisdiction, the main technique of treatment emphasized inclusion over exclusion; it emphasized probation as a first resort for a wide range of offense. Through a system of probation, parents could be guided to be better parents. But the power of probation would extend far beyond supervision. The probation officer became a key official, critical to both intake and outtake processes. As an intake official, probation officers could appear at various stages in the juvenile justice process. Police officers were often assigned the task of acting as intake probation officers (Wolcott 2001). They could easily dismiss cases, bring a child to the child’s home and warn the child and the parent that the offending act could lead to an official arrest. As outtake officials, probation officers had the authority to incarcerate adolescents who repeated their offensive behavior.

The diversionary techniques of the juvenile court at various stages could proceed because it was an insulated, nonpublic legal setting (Miller 1979). The rationale for confidentiality was to protect the identity of adolescents from a public criminal label. This veil of confidentiality worked not only to keep the name of delinquents away from newspaper reporters but also to protect officials from public scrutiny over their decisions to treat and to punish juveniles. The informal nature of the traditional juvenile court became less tolerable as the court appeared to ignore the justice component of juvenile justice. A new wave of reforms would shift the purpose of the juvenile court and the shape of juvenile diversion.

By the 1960s, when critics of the juvenile court were writing about its informal procedures, officials were ready for a new set of diversionary reforms. The US Supreme Court, in a series of decisions, would decide that the juvenile court was much too informal in the way that it adjudicated adolescents (Feld 2000). Constitutional rights needed to be applied to juveniles in a juvenile court, including the right to legal representation. The juvenile court could no longer proceed informally as it had in the past. Several years after the 1964 Gault decision, the President’s Crime Commission in 1968 explicitly recommended the diversion of status offenders from a less informal diversionary juvenile court.

In one of the first evaluations to appear on juvenile diversion, Cressey and McDermott (1973) predicted the contemporary shape of juvenile diversion by observing that “there will be a polarization of attitudes and programs: Lawbreaking juveniles are likely to be processed along the lines of the adult model and hence will receive more due process and less humanistic consideration—after all, are they not merely small criminals? Juveniles who have been called ‘predelinquents,’ because they can’t get along at home or in school, will be diverted (61).” Cressey and McDermott’s prediction would become true at both ends of the justice system. In less than a decade, waiver legislation expanded the eligible population of juveniles who could be brought into criminal court. Singer (1996) has referred to this hard-end of the juvenile and criminal justice system as recriminalization. A segment of juveniles viewed as ineligible for the treatment-oriented mission of the juvenile court are now seen as criminally responsible and deserving of criminal sentencing in criminal court. But this kind of diversion would be at one extreme end of the juvenile justice system, while at another softer end, inclusion would persist through the proliferation of programs that avoided the more formal juvenile court. The informal system of juvenile justice expanded beyond the juvenile court’s ability to adjudicate delinquent status (Mears 2012).

Definitions Of Juvenile Diversion

Most definitions of juvenile diversion focus on its inclusionary technique of invoking control. As noted, the term diversion has over time encompassed a variety of agencies, institutions, and programs. Diverting juveniles from the juvenile court to the criminal court through waiver legislation is an aberration of terms since it avoids the inclusionary, non-labeling function of juvenile justice (Singer 1996). For juveniles that are deemed criminally responsible for their offenses based on the seriousness of the crime and prior history, diversion is the juvenile court (Feld 2000).

A definition of diversion suggests the following possibilities. First, there is true diversion. Edwin Schur (1973) defined true diversion as a form of “radical non-intervention.” But any offense that invokes a response may be viewed along a scale of first and last resorts of dispositional options (Emerson 1969). The most frequent source of juvenile diversion is the police (Wolcott 2001). For common acts of delinquency, the police are the first to respond, and they frequently respond by warning adolescents not to repeat the offense. This kind of diversion may be considered nonprogrammatic. It avoids mandating an intervention that might disrupt the life of the adolescent. Non-programmatic diversion operates on the theory that a warning is sufficient to avert the repetition of an offense.

Juvenile diversion may also be referred to as programmatic. The police, intake officials, and even prosecutors as well as judges may refer juveniles to a variety of treatment options. They may be directly related to the operation of the juvenile court but without any formal adjudication or official penetration into the juvenile justice system. They include a range of options – including drug, youth, and family relation courts (Chapin and Griffin 2005). These newly established centers for diversion provide an alternative way of confronting adolescent offending while allowing the juvenile court to focus on serious acts of delinquency.

Thus, juvenile diversion as typically defined is inclusionary and cost-effective. Juvenile courts when first created as an informal diversionary court were cheaper to operate than the criminal court. Probation is less expensive than incarceration. Today, the informal system of juvenile justice is less expensive than the post-Gault formality of the juvenile court. Juvenile diversion is also defined by its more inclusionary form of control. The house of refuge was more inclusionary than the city penitentiary. Similarly, probation is more inclusionary, less stigmatizing than out-of-home placement. Last but not least, juvenile diversions into drug rehab, stop-shoplifting programs, or any number of treatment-oriented nonformal juvenile justice proceedings are less stigmatizing than adjudication in juvenile court. The most inclusionary form of juvenile diversion is the type that is referred to as non-programmatic in producing a warning rather than a programmed intervention.

Who Is Likely To Be Diverted

Advocates of juvenile diversion would indicate through their mission statements that their programs are for those adolescents who deserve a particular form of treatment. Criminologists who have evaluated diversion see more than just the objective need of the adolescent for treatment. Juvenile diversion tends to be defined by a set of local administrative rules and procedures as well as by the availability of various treatment options (Hasenfeld and Cheung 1985). Criminologists also recognize that these options are not evenly distributed. They depend on the resources of a community and the ability of parents to afford various diversionary options. More affluent communities are in a better position to provide their youths with a range of diversionary options. Similarly, affluent families have at their disposal a range of options in a private system of treatment for their troubled youths. The police may be attuned to the possibilities of true, non-programmatic diversion because they see affluent parents as competent to control their youths. Petty acts of shoplifting and property destruction may be settled civilly, because affluent parents are in a better position to pay the cost of their child’s offending.

Closely associated with class indicators of diversion is race. Disproportionate minority confinement in juvenile institutions may be viewed as a function of a lack of suitable alternative diversionary programs. In a report sponsored by the US government’s Office of Juvenile Justice and Delinquency Prevention on racial disparities within New York State, the authors concluded that the differences in the race of youths locked in juvenile facilities can be largely attributed to “the greater availability of diversion programs in suburban areas, coupled with the greater affluence of suburban families and their ability to access services for their children and compensate victims, leads to over-representation [of minorities] in the juvenile justice system” (Nelson and Lansing 1997). A variation of the above quote can be found in nearly all federally mandated, state studies of the disproportionate confinement of minority juveniles and numerous scholarly articles and books (Feld 2000, Leiber and Stairs 1999; Ward 2013).

In Stanley Cohen’s 1985 book, Visions of Social Control, he relates a theory of diversion on who is most likely to receive the more inclusionary justice system’s controls. He illustrates soft-end diversionary justice as targeting those who are believed to most likely to succeed. He refers to the acronym YARVIS (Young, Attractive, Rich, Verbal, Intelligent, and Successful) to describe the most likely candidates for diversion. Younger adolescents are more likely to be diverted because they are viewed as too na¨ıve to be held fully responsible for their behavior. The Attractive may be viewed as those who look more like the children of officials, who would reflect majority class and race characteristics. This distinction is invoked by Jerome Miller (1979) when he suggests that there is a basic split between how some youths are perceived as more or less deserving of treatment. Juvenile diversion reproduces this basic bifurcation in decision-making. Similarly, the Rich as noted have options that are simply unavailable to the impoverished. Therapeutic schools can easily exceed the cost of the most expensive private colleges, and only the wealthy can afford this kind of juvenile diversion. Moreover, professional therapy is generally a luxury for those who have insurance to cover its cost or who can pay for the out-of-pocket expense of a therapist. The Intelligent have always maintained an advantage in that they can articulate their troubles and the reasons for their delinquency. Their prognosis for success is generally considered better than those who suffer from a range of intellectual and learning disabilities.

Evaluating Successful Forms Of Diversion

Determining the rate of success of juvenile diversion is a difficult task. The criteria for selecting youths can confound any evaluation of the true effectiveness of a treatment program. The ability to assign youths to programmatic and nonprogrammatic treatments requires an experimental design that cannot easily be implemented. Programmatic and non-programmatic efforts at diversion may be viewed as desirable independent of any proof of recidivism. Judgments about who is eligible for a diversion are often based on judgments about the probability of success; creating selection effects can easily confound experimental and quasi-experimental research designs. Moreover, there may be long-term effects to juvenile diversion that cannot easily be detected through short-term studies.

The success of programmatic efforts at juvenile diversion most often rests on the sense that officials have of a particular policy. A diversionary program may make sense because it is cost efficient when compared to alternatives and when it reflects the desire of officials and the public to see a minimum sanction applied. A litany of sense making approaches to understanding organizational structure (Weick 1995) and how juvenile diversion makes sense in contrast to a range of alternatives is the reason for programmatic and non-programmatic responses. So houses of refuge made sense as a residential school for troubled youths in contrast to the city penitentiary. Similarly, probation made sense as supervised care within the community in contrast to the reformatory. Last but not least, the informal system of juvenile justice today makes sense when contrasted to the more formal procedures of the juvenile court. The litany of juvenile diversionary responses is generally considered appropriate for more deserving youths as subjectively defined by officials in their case processing decisions. Juvenile diversion will continue to proliferate in a multitude of forms independent of any proof of success in terms of recidivism. Instead, success is defined in relation to a range of possible alternatives.

An Example Of Diversion

As stated in the previously cited government report, juvenile diversion is more likely to take place among youths in affluent communities and affluent families. The following unedited letter from an affluent youth in an affluent suburb illustrates the point of diversion:

Dear Chief Probation Officer Riley:

I would like to point out how thankful I am for being granted the opportunity to make right of what I have done wrong. The pre-trial diversion program gave me a chance to realize how serious and real breaking the law is. Along with being granted the pre-trial program I was obligated to pay all fees to the court, finish the JDP [Juvenile Diversion Program] program, visit a personal counselor, finish twenty hours community service, and take random drug tests. Because my record was so important to a successful future for me, I completed all the tasks I was allotted to accomplish within six months. In doing so I learned not to get in trouble. I do not plan on ever having to show up to court for anything again. I think every kid with a first offense deserves the pre-trial diversion program. Because ones record is so important, a clean one is important for their future. I am very grateful for the opportunity I was given.

Sincerely, an arrested affluent youth in an affluent suburb

Success is deemed possible because this particular adolescent’s family was able to hire a private attorney, and in this affluent suburban town, a juvenile diversion program created the opportunity to avoid adjudication as a delinquent. Community service, drug testing, and therapy enabled this particular youth to meet the conditions of his pretrial diversion. By meeting those conditions, the youth escaped a possible conviction not only in juvenile court but also in criminal court. He could have been charged with a felony and faced prison time for a large quantity of marijuana that was found in his possession along with other drug-related paraphernalia. The fact that he was able to avoid formal adjudication as a delinquent is related not only to his youth but to his affluence, intelligence, and attractiveness as a good candidate for diversion. His diversion might not have been possible if his parents were unable to afford the cost of a private attorney, the time spent in court, and the insurance money for private counseling and professional therapy. The empathetic response of officials in this affluent suburb recognized the youth’s adolescence and identified with his parents’ desires.

Data On Juvenile Diversion

A large part of the business of understanding diversion involves evaluating various programmatic designs. Various diversionary programs are considered panaceas when first implemented. The reliability and validity of these evaluations are beyond the scope of this research paper and are discussed elsewhere. For now, it is important to bear in mind that a range of diversionary programs exists, independent of any proof of effectiveness. They exist because they make sense to officials and the public who support them as alternatives to the expense and stigma of incarceration. Rather than a non-programmatic form of diversion (true diversion), programs like youth and drug courts, restorative justice, first offender programs, and a wide range of other programs are thriving under the banner of diversion.

It is important to bear in mind that the traditional role of the police has been to act as a gateway to juvenile justice. This point has been emphasized by David Wolcott (2001: 363) who concluded that “the police made the juvenile justice system run.” This conclusion is based on the filtering function of the police to decide which adolescents would be brought into juvenile court. He examined statistic for Chicago, Detroit, and Los Angeles during three distinct periods of time. The story that he tells is one of juvenile diversion that reflected the organizational practices of the times. It is not an even story given that the availability of options created the possibilities for juvenile justice to take on a variety of diversionary tracks.

In one affluent suburban town which is similar to where the previously mentioned diverted youth resided, data on the disposition of police arrests reveal a familiar story. First, it is important to bear in mind that the police can act as the first source of diversion. They can decide if an offending youth should just be warned or referred to the juvenile court. Figure 1 shows the arrests of juveniles younger than 16 in an affluent suburb. Of the 137 recorded official arrests for acts of delinquency (non-status offenses), only 36 % were referred to the juvenile court (New York’s

Juvenile Diversion Research Paper

Family Court). The remaining arrests were diverted either to their parents or a variety of treatment-oriented programs. The most common of these was the town’s youth court. This type of diversion avoids any kind of juvenile court record, and its most severe sanction is of the community service type.

But what happens if a juvenile is referred to the juvenile court? Once juveniles are referred to juvenile court, they may receive diversion into any number of programs through intake independent of the formal hearing. Figure 2 presented national court statistics for case processing decisions in 2008 based on nationwide juvenile court statistics as compiled by the National Center for Juvenile Justice. Of those who were not formally processed in the juvenile court, most were given a range of sanctions including probation. About 42 % were dismissed or released. This nonprogrammatic form of diversion as exemplified by true diversion is after the fact that in some jurisdictions the police have already acted as filtering agents in only bringing a small proportion of youths with whom they make a recorded contact into the juvenile court.

Juvenile Diversion Research Paper

Figure 2 is for the entire USA; it does not include the wide array of programs to which adolescents can be placed as a condition of their diversion in affluent suburbs such as the one represented by the graph of arrests in Fig. 1. Informal dispositions should be higher in more affluent counties and towns. In this particular affluent suburb, youths may be eligible for its Drop-Out and Early School Intervention, First Offender Youth Board program, Serving at Risk Adolescent Homes program, Responsible Adolescent Parenting program, and the nationally recognized Tough Love program. Many of these programs are family based and require family therapy as a way of confronting an adolescent’s offensive behavior.

The impact of these programs is difficult to assess except in its most general form. There are advantages and disadvantages to nonprogrammatic forms of juvenile diversion. For Lemert and other theorists of labeling, these programmatic forms of diversion had the risk of isolating youths with other youths who were equally delinquent.

Future Directions

Programmatic efforts to deal with offending youth exist to respond to trouble. Thus, qualitative research by Robert Emerson (1969) has defined trouble along a continuum of first resort and last responses. These first and last responses are historically place specific. The house of refuge, as noted, was initially conceived as a first resort, an alternative to the city penitentiary. It became a last resort as new ways of seeing how to respond to adolescents evolved in the shape of probation and its juvenile court. The emerging social science of adolescence has created new opportunities for considering how best to respond to the reasons for adolescent offending. For those jurisdictions that could afford the luxury of a mental health clinic and a professional staff of probation and social workers, there was little need to divert from the juvenile court.

However, a more formal juvenile court brought a more expensive juvenile court – one where lawyers would have to be paid and rules followed similar to criminal court. This was to reduce the risk of injustice that might be caused by sentencing a juvenile as delinquent for a crime that they did not commit. The Gault decision was to safeguard the risks of a too informally driven juvenile court. But this informality would be extended in an expanding front-end of juvenile justice where most adolescents would receive some sort of sanction based on the assumption that diversion was more just for its treatment protocol and less stigmatizing than formal handling in juvenile court.

This assumption of the justice of juvenile diversion needs to be examined in its organizational and legal sense of justice. The decentering of the contemporary juvenile court became so blatant that Jerome Miller would refer to the juvenile court as a setting from which juveniles were to be diverted. This was not always the case as previously noted. But the reasons for diversion need to be examined based on (1) the sense of justice that juvenile diversion produces in an informal system of juvenile justice, (2) the risks that the treatment will be just as stigmatizing as formal processing, and (3) the meaning of the treatment for officials and the public, that is, how success and effectiveness are to be defined.

Edwin Lemert’s (1972) theory of secondary and primary deviance is often cited in textbooks as the reason for diversion. But this can be disputed based on Lemert’s writings that avoided the simplistic notion of a labeling theory. Trouble was identifiable in the shape of an offense. The method of reacting to that offense defined the type of control that would be deemed as most effective. The courts can make a bad situation worse, leading to secondary deviance by separating the adolescent from the mainstream of society. This process of social attenuation could occur through an adolescent’s repeated identification with delinquents. It is them against us as exemplified by the concept of social attenuation that Lemert warned against. The problem for many programmatic efforts to divert juveniles is they risk further isolating youths by not dealing with their troubling behavior. Moreover, the best place for treatment may not be in the home when the source of trouble is the home, such as in instances of child abuse. How to maintain the social status of troubled youths may require an individualistic and not programmatic response, such as individual therapy.

The social organization of juvenile justice in each community also needs to be revisited to assess the extent to which juvenile diversion matters in the lives of adolescents. This research paper has referred to research on programs in one affluent community and a government report that points to disparities in diversion based on the availability of services. Affluence matters both on community and familial levels. Cicourel (1968) made this point in his study of the social organization of juvenile justice when he compared two cities that varied in their policing and official responses to delinquency. The less affluent city was less professional, and officials were more inclined to make arrests rather than to negotiate diversion. The status of parents was considered equally important as well as the possibilities that parents were willing to negotiate a disposition.

To look deep inside of juvenile justice systems is to examine the reasons for a veil of confidentiality that is there not so much to protect the status of adolescents but to protect officials from public scrutiny of their decisions. Juvenile justice in general may be considered a black box of decision-making, and this makes decisions regarding juvenile diversion difficult to trace. Officials must be convinced about the importance of transparency in their decision-making along with the rights of adolescents to have their identities protected.

Criminologists can provide that independent evaluation. But it requires the hard work of gathering the intimate details of administrative decision-making. Criminologists should also look at the extent to which diversion is supported independent of concerns about offender recidivism.

Conclusion

Juvenile diversion is an integral aspect of our justice system. It was the basis for houses of refuge, reformatories, juvenile courts, drug courts, and youth courts. Juvenile diversion will remain with us as an integral part of our juvenile justice systems. The principle of juvenile justice is rooted in the concept of diversion. But it is a principle that revolves around doing nothing (radical nonintervention) or doing something (programmed treatment). This difference too often neglects the fact that doing nothing often involves at a minimum a warning and announcement that a rule has been violated. Similarly, doing something often turns into doing nothing if the juvenile is inappropriately placed in a program that has little effect on their troubling behavior.

Diversion is not only to be found everywhere in a complex system of juvenile justice, but its basic characteristics are closely identified with the notion that adolescents are deserving of another chance. Yet eligibility for diversion is not evenly distributed based on the resources of the community where an adolescent lives and the status of their parents to afford a number of possible options.

The most simplistic approach is to consider diversion as a first resort in a system of justice where individuals are given a multitude of chances. Yet not only are these chances dictated by a prior history of offending but also by the seriousness of the offense. Generally, the more serious the offense, the less likely the offending adolescent will be eligible for diversion.

Future research needs to examine the mix between place, characteristics of adolescents, and the availability of diversionary programs if they are to be able to fully assess the meaning of juvenile diversion in a complex modern-day system of juvenile justice.

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