In 2010, four percent of Arizona’s youth, or 41,040 juveniles, received at least one delinquency referral to the juvenile justice system.1 About half of these youth had not had any previous contact with the justice system, and 66 percent were referred for misdemeanors or status offenses.2 Fortunately, the rate of juveniles referred to the justice system who are being diverted is on the rise. Diversion is a process by which juveniles can avoid formal court processing, and therefore, a delinquency record, by successfully completing one or more diversion “consequences.” The consequences can range from writing an apology to community service, counseling, or teen court. In 2010, 46% of the youth referred were diverted.3 Two thirds of the youth diverted had never been referred to the court before.4 More than 86% of these youth had one prior referral or less, and 83% were referred for non-felony offenses.5
The concept of diversion has been around since the early days of the juvenile justice system. It is based on evidence that processing youth offenders through the court system can do more harm than good. Indeed, court involvement for low-level offenders has been shown to be related to lower educational attainment, more limited employment prospects and higher rates of re-offending. By handling such cases outside of the formal system, courts and prosecutors can avoid exacerbating these effects and also reduce the strain on overloaded dockets.
In 1967, partly in response to concerns that processing youth through the formal system could lead to further delinquency, the President’s Commission on Law Enforcement and the Administration of Justice called on communities to establish local youth agencies or bureaus that could serve as an alternative to putting youths through court.6 The Commission’s recommendation led to a proliferation in diversion programs in the late 1960s and 1970s. Today, most diversion programs are no longer sustained by federal grants, but by state and local funding sources. As these budgets continue to get slashed, policymakers will undoubtedly face pressure to reduce the investment in good quality diversion programs and shift more of the cost onto the families of referred youth who may not be able to afford the cost. This would be a mistake. Diversion offers an important opportunity for many young people who, with limited intervention, need never return to the juvenile justice system. By investing in diversion, we not only increase the chance that these youth will succeed, but also save money over the long run and enhance public safety.
In 2010, following the announcement of some significant changes to the diversion program by the local county attorney’s office, the ACLU of Arizona undertook an investigation of juvenile diversion in Maricopa County. Maricopa County contains 60% of the state’s population and is home to the large metropolitan community of Phoenix.7 It handles just over half of the state’s juvenile referrals and an almost equal share of the diversion.8 As part of its investigation, the ACLU of Arizona examined data from the juvenile court, probation department and two private contractors that were retained by the Maricopa County Attorney’s Office (MCAO) to provide fee-based diversion services. The ACLU also interviewed court and probation department staff, juvenile defenders, a juvenile prosecutor, and representatives from the private companies. This paper presents the findings and recommendations of the investigation.
In Arizona, for cases processed through the 15 county juvenile courts, the authority to decide whether or not a case will be eligible for diversion rests with the prosecutor, or county attorney.9 However, the county attorney may designate certain offenses that are eligible for diversion, and those cases that fall within the criteria set by the county attorney may be handled directly by juvenile court probation officers assigned to diversion. Alternatively, the county attorney may refer diversion-eligible cases to an approved program in the community.10 Cities and towns can also establish their own diversion programs, but starting in 2009, those programs must also be pre-approved by the county attorney.11
Whether diversion is administered by the juvenile court or by a provider approved by the county attorney’s office, in order to participate, the juvenile must acknowledge responsibility for the offense.12 The juvenile must also complete each of the consequences imposed, including, where applicable, the payment of restitution to the victim.13 Participation in diversion cannot be used against the juvenile in any future proceeding.14 If the juvenile successfully completes diversion, the county attorney will not file any charges in court and the juvenile will be able to avoid a delinquency record.15
There are certain offenses that are always ineligible for diversion under Arizona law. For example, a juvenile that is referred for driving under the influence or related offenses will not be eligible for diversion.16 Chronic and violent felony offenders are also ineligible.17 In 2008, “dangerous offenses” involving the use or threatening exhibition of a deadly weapon or dangerous instrument were added to the list of ineligible offenses.18 And in 2009, lawmakers amended the law again to exclude juveniles referred for any alcohol or drug offense from diversion if they had participated in a diversion program twice in the preceding 24 months.19 Further, juveniles that are detained for any offense for more than 24 hours will be ineligible for diversion since a petition must be filed within that time period by law.20
Juvenile diversion programs are funded through a combination of state grants, county appropriations and fees collected from the families participating in diversion. Each year, the Administrative Office of the Courts of the Arizona Supreme Court (AOC) calculates a “per juvenile” reimbursement rate for the provision of diversion services. The juvenile courts then receive a grant based on the number of juveniles they serve through diversion. Courts are further required to assess parents a fee of $50 unless they can demonstrate an inability to pay.21
As a result of the ACLU of Arizona’s study, we make the following six recommendations:
1. Reduce disproportionate minority treatment in the juvenile justice system by increasing opportunities for minority youth to be diverted, including selection into restorative justice programs107 such as CJCs and Teen Courts. This will require a concerted effort to establish more CJC panels and Teen Courts in underserved neighborhoods with a high concentration of low-income and minority youth.
2. Ensure that diversion programs are financially accessible to youth. While it may make some sense to increase the “stake” that families have in diversion by charging a nominal fee, care should be taken to accommodate those families who may be unfairly precluded from diversion because they cannot afford to pay the fee. MCAO or fee-based diversion providers should charge families a maximum of $50 for diversion and a $25 victim fee and create a sliding scale fee structure for families who cannot afford to pay. They should modify their materials to inform families of this option. County officials should explore options for tapping into public or private funding to make this possible, or keep the programs in the probation department.
3. Reduce other barriers to diversion. The probation department should explore options for operating after hours to accommodate single and working parents, and increase the use of satellite offices. This can have a significant impact on a family’s ability to complete diversion. All diversion providers should consider locating programs in the community, so that juveniles can meet with providers and complete diversion consequences without leaving their own neighborhoods. Establishing such community-based, culturally competent services in local neighborhoods would be an important step to expanding access to diversion. Providers should also update the way they communicate with youth and not rely solely on letters. Promising communication methods include text messaging and email. Providers should also ensure that diversion services are available in Spanish and other languages.
4. Increase public awareness about diversion. Many families do not have enough information about the juvenile justice system to make informed decisions about whether or not to go through with diversion. The juvenile court and other key players should conduct outreach and public education to increase awareness about the benefits of diversion, both for the juvenile and for the community at large.
5. Increase offenses that are eligible for diversion. The last year has shown that offenses such as graffiti can be effectively tackled through diversion and need not result in
a juvenile court petition. Policymakers should experiment with additional offense categories to see if they can be effectively addressed through diversion.
6. Invest in more comprehensive data collection and reporting so that the effectiveness of program changes can be evaluated. The juvenile court currently has only one primary
researcher who is responsible for gathering and analyzing yearly data. Further, it is not clear whether the results of diversion are being captured across the board in a way that
is conducive to analysis; nor is there currently an attempt to reliably assess the reasons why juveniles do not complete diversion. More resources for data collection, reporting,
and analysis can save money by allowing policymakers to understand how program changes positively or negatively impact other aspects of the system.
The rate of juveniles being diverted in Arizona is on the rise. This is significant because diversion can offer swifter and more effective intervention for juveniles referred for a delinquency offense without the stigma and cost of a lengthy court process. Many young people who successfully complete diversion programs never return to the juvenile justice system. Indeed, research shows that juveniles who participate in diversion re-offend at lower rates than those who are processed through the court. It is imperative that we continue to invest in cost-saving juvenile diversion programs that help keep kids out of the court system and in school. Furthermore, the juvenile justice community can strengthen existing programs by increasing diversion opportunities for minority youth and ensuring that diversion remains financially accessible to low-income families.
Although there has been some progress made on the diversion front, the fact remains that too many kids are referred to the justice system for minor offenses in the first place. Misdemeanors and status offenses still make up 66% of referrals. In addition to maintaining and expanding upon diversion programs, members of the juvenile justice community should make the reduction of referrals for minor offenses a policy priority.