Diversion Programs. Are they Worth the Investment?

By MarcAnthony Coleman

Imagine being a sixteen-year-old wrongfully charged with stealing a book bag, a minor misdemeanor offense, and being placed in a notorious prison with hardened criminals for over a thousand days because your family did not have enough money for bail. Moreover, imagine that throughout this period/during your confinement or imprisonment, the prosecution repeatedly postponed your trial date due to a lack of evidence, until the charges against you are ultimately dismissed. As you may know, these facts are from the disheartening story of Mr. Kalief Browder.¹

Mr. Browder ultimately spent more time in prison, as an unconvicted person, than a person typically convicted of the crime in which he was charged would serve.² The physical and mental abuse experienced by Mr. Browder led to him spending more than 700 days in solitary confinement.³ After his release, Mr. Browder attempted to move forward with his life by obtaining his GED and taking other steps to course correct. However, the mental strain and relentlessly oppressive nature of the entire ordeal ultimately played a significant role in contributing to him taking his life.⁴ Simply being afforded some alternative designed for youth to address the “alleged” behavior outside of the criminal justice system would have potentially allowed for the acknowledgement of his claims of innocence without exposure to the harsh environment of prison. Furthermore, a different framework which considered the circumstances and needs that created the interaction with the criminal justice system could have alternatively created a boost or springboard into a successful and productive life.

Why are Diversion Programs Important

The criminal justice system is difficult for youth who have been shown, by the data, to be more susceptible to manipulation regarding confessions and other behaviors inconsistent with establishing their innocence.⁵ Furthermore, the significantly nonzero possibility that a policing agent and/or prosecutor will wield the daunting force of the state on an innocent youth creates a pervasive need for caution regarding unfettered processing of youth into an unforgiving criminal justice system.⁶

Even if the adolescent did commit an act of criminality or delinquency, research has shown that being processed into the criminal justice system is, for the vast majority, not the best alternative.⁷ Moreover, the vast majority of youth that exhibit delinquent or “criminal” behavior do not pose a significant harm to the community.⁸ Although this behavior may be mildly abhorrent to social norms, the data shows that the overwhelming majority of youth will mature out of the undesirable behavior. This also holds true for a significant number of youths who commit serious offenses.⁹

These acts of testing the boundaries are typical amongst a wide swath of youth regardless of race or socioeconomic background.¹⁰ However, the data does show that a disproportionate percentage of Black and Hispanic youth are captured in the criminal justice system, although the rates of criminality amongst youth of all races are relatively similar. Rather alarming is the fact that Black and Hispanic youth convicted of crimes are later exonerated at a disproportionately higher rate.¹¹ But regardless of any particular factor influencing whether an adolescent is processed through the legal system, the data shows that youth are malleable and when provided the proper tools, incentives, and resources to nurture maturity rather than threats of punitive action, lifelong positive effects can gain root in their lives redirecting them to becoming beneficial members of society.¹²

Diversion programs, when properly implemented, are a tool that prioritizes the need for accountability while addressing the root sources of the undesired behavior without placing the adolescent into the criminal justice system.¹³Diversion programs have been shown to not only reduce recidivism and incarceration but also to benefit the state by reducing their financial burden as well as improving overall public health.¹⁴ Most states have implemented some form of diversion whether pre-arrest or post arrest. However, relatively few states have invested sufficient resources to maximize the potential of diversion.¹⁵ In this article, we will discuss the difference between pre and post arrest diversion, the types of diversion programs, how they are implemented, and the data regarding the effects of diversion programs.

Pre and Post Arrest Diversion

Diversion is a broad category of interventions employed by the juvenile justice system to address undesirable and potentially criminal behavior of the youth at the community level.¹⁶ Whether accomplished pre or post arrest, diversion programs reduce the persistent burden and stigma associated with a court record while attempting to mitigate the needs producing the undesirable behavior.¹⁷

Pre-arrest diversion avoids the justice system almost entirely, is much more informal, and arises typically from non-police or prosecutorial authority figures addressing the undesirable behavior.¹⁸ Encouraging pre-arrest diversion empowers the community and provides the youth with people better capable of garnering their trust and confidence. However, the leaders of the community must have access to training and resources to effectively meet the needs of the adolescent.¹⁹

Post-arrest diversion typically occurs after the youth has been apprehended by a policing agent. But rather than being processed in the juvenile justice system, the adolescent is diverted to a program designed to course correct.²⁰ Post-arrest diversion provides more structure and allows the state to have a greater ability to monitor and influence the organizations responsible for carrying out its directives.²¹ The unfortunate tendency of some post-arrest diversion programs is excessive surveillance which has been shown to further exacerbate or prolong undesired behavior.

To maximize the potential of success, diversion, whether pre- or post-arrest, typically consists of a thorough assessment of the environmental factors that were significant in shaping the undesired behavior.²² Furthermore, the data indicates that a primary driver of the undesirable behavior is the home environment, underscoring the need for more research regarding appropriate and effective incentives to counteract this factor.²³ The data also indicates that an effective diversion program requires a proactive approach that identifies behavioral issues early while also providing the resources essential to shift the cost benefit analysis for the youth by providing access to constructive opportunities and mentors.²⁴Properly implemented pre and post arrest diversion programs are a tool that can potentially produce consistent positive effects in the lives of a significant majority of youth.  

Types of Diversion Programs

Typical implementation of diversion programs includes warn and release, short term light touch programs, individualized service programs, and restorative justice.²⁵ Warn and release programs as well as short term light touch programs appear to produce reproducible beneficial results regarding minor offenses. On the other extreme, individualized service plans appear to produce better results for youth with extensive histories and who possess more significant needs.             

Restorative justice programs possess a reach that overlaps the programs catered to youth who benefit from lighter-handed approaches while potentially providing an effective remedy for the vast majority of youth potentially diverted.²⁶ This approach encourages the youth to reflect on their behavior and take responsibility for their actions, rather than face punitive consequences.²⁷ The data seems to corroborate the benefits of such an approach. Furthermore, restorative justice programs typically reinforce accountability by involving the offending youth’s family and the victim, creating an environment suitable for holistic healing.²⁸ Available data appears to bear out the benefits, indicating that victims receive greater satisfaction due to the increased possibility of closure.²⁹

While these beneficial results of restorative justice programs are produced for a wide range of applications, they seem to be a little more attuned to addressing delinquent behavior, such as disorderly conduct, theft, minor fights, and other similar behaviors.³⁰ Delinquent behavior appears to be significantly influenced by a lack of self-reflection and/or the ability to comprehend long-term consequences.³¹ Moreover, immaturity and the limited cognitive development of youth are significant drivers of more impulsive and risk-taking behaviors.³² Restorative justice as well as other diversion programs are designed to provide a structure that addresses these cognitive and maturity limitations.

To further encourage and cultivate openness and receptivity to taking responsibility, some states have enacted laws aimed at protecting the confidentiality of restorative justice proceedings.³³ Initiatives like these increase the effectiveness of restorative justice by allowing more genuine openness, encouraging self-reflection, and providing closure to the victim.³⁴

Implementation of Diversion Programs

Data and research appear to consistently show that youth who have participated in diversion programs are less likely to reoffend than youth who are formally processed through the juvenile court.³⁵ However, there are additional parameters in the data that indicate that diversion programs are most effective when certain conditions are established based on the adolescent’s risk to re-offend and their specific needs.

Risk assessment is accomplished at different points in the process but generally will include an assessment of static factors like prior criminal history, age at first offense, parental history of criminality, etc. as well as dynamic factors like poor parenting practices, substance abuse, association with delinquent peers, and poor academic achievement.³⁶These factors are additionally differentiated with regard to criminogenic behaviors, such as those that tend to underly criminal behavior like substance abuse. and noncriminogenic factors like low self-esteem which are not necessarily factors connected to delinquency.³⁷

Other factors include protective indicators like supportive adults, stable family, and resilient temperament, and responsivity factors like motivation for change, cognitive functioning, etc.³⁸ These factors are incorporated generally into two approaches, actuarial and structured professional judgment.³⁹ The actuarial approach is much more rigid whereas the structured professional judgment approach allows the decision maker to have more flexibility to account for factors on a more subjective basis.⁴⁰ These decision makers then employ a variety of risk assessment tools depending on the state to classify the potential youth diverged as either low risk, moderate risk, or high risk.

Low intensity diversion options like warn and release are most effective on low-risk youth.⁴¹ Improperly implementing more stringent diversion programs or confinement tends to produce worse re-arrest and delinquent results for low-risk youth.⁴² Conversely, the data suggests that higher intensity diversion options, including more services and oversight, produce better results for high-risk youth.⁴³ Additionally, cognitive-behavioral practices and family-focused approaches have also been shown to reduce recidivism as well as improve other outcomes for higher-risk youth.⁴⁴ Moderate risk youth fall somewhere in between and require a sliding scale approach to properly evaluate the level of supervision required.

Properly assessing the risk level and tailoring the approach accordingly produces the most effective use of resources while reducing the risk of capturing youth who should not be under stringent supervision, i,e., net widening.⁴⁵  Moreover, the root cause of the undesirable or “delinquent” behavior varies between individuals. An effective and proper response to an adolescent reacting to bullying would be significantly different from an effective and proper response to familial conflict and likewise for an adolescent responding to past trauma or substance abuse. Unquestionably, each of these potential causes of the undesirable behavior would be best served by different responses.⁴⁶ One size fits all should never be acceptable when the long-term consequences/impact is the future of a society, and indeed, the future of children.

Regardless of how diversion programs are implemented, they should prioritize enrollment and active participation in school or trade programs, measurable academic progress, participation in constructive activities, and exposure to career opportunities and mentors in order to ensure the best opportunity for the youth to become productive members of society.⁴⁷ Encouragingly, more decision makers in policing and prosecutorial agents are entertaining and implementing diversion programs. But as borne out by the data, poor implementation of diversion programs is potentially perpetuating an environment less conducive to adequately serving the best interests of our youth and the public in general.

Data

As previously noted above, delinquent behavior of youth is not necessarily an indicator of future criminal behavior.⁴⁸ How we respond as a society greatly influences the future of these youths.  Probation may seem like a fairly light-handed approach to addressing mild delinquent behavior, however, the data indicates that simply entangling an adolescent in the system after their first offense increases the likelihood of rearrest, particularly for technical violations, when compared to diversion of similarly situated youth.⁴⁹ Re-arrest for technical violations provides little, if any, benefit to society while diverting scarce resources that could be employed elsewhere. Furthermore, enforcing these technical violations, inadvertently or not, serves to restrict opportunities for the youth by creating a fascade of criminality.⁵⁰

Additionally, this increased likelihood of rearrest and separation from the adolescent’s home environment increases the likelihood of future rearrest, generally, but also with regard to more severe offenses when compared to similarly situated youth supervised in their communities.⁵¹ These results remain consistent even when youth are allowed multiple opportunities to be diverted.⁵²

Data from states like Kansas, which has passed legislation mandating the use of diversion through its Immediate Intervention Program (IIP) for all misdemeanor offenses charged to youth, indicates that in 2022 it obtained a successful completion rate of nearly 92% while avoiding new adjudication of convictions.⁵³ Additionally, New Hampshire expanded the use of diversion programs in 2017, creating several new behavioral health interventions and a new process that conducts behavioral health screens for all youth referred.⁵⁴ These changes increased diversions in New Hampshire while decreasing new delinquencies cases by 50% over the next 5 years.⁵⁵

Other states, such as South Dakota, passed comprehensive juvenile justice reform in 2015 for nonviolent misdemeanors and status offenses in addition to providing financial incentives.⁵⁶ Consequently, diversion in South Dakota increased while proportionally producing an increase in the number of youths successfully completing diversion.⁵⁷ Furthermore, certain jurisdictions like Boulder, Colorado increased the number of youths referred to diversion, and more than 90% completed their programs with less than 10% of those committing new offenses.⁵⁸ Moreover, 99% of the victims in Boulder, Colorado who participated reported being satisfied with the process.⁵⁹

Additionally, in Florida, the enactment of policies authorizing the issuance of civil citations has resulted in a reduced likelihood of reentry into the justice system on subsequent charges.⁶⁰ Youth diverted in Florida also experience significantly lower rates of reentry into the system than those who had their cases formally processed in delinquency court.⁶¹ This data is consistent with other research that shows a decrease in new delinquencies relative to the amount of state oversight. And this holds true even when controlling for background, offending histories, and other risk factors.⁶²

Several other states and jurisdictions like Massachusetts, Clark County (Las Vegas, Nevada), and Harris County (Houston, Texas) have produced data showing that a significant reduction in the use of the juvenile justice system decreases the financial burden on the state while not increasing the re-entry rate of the youth.⁶³

While there are some studies that indicate that the results of the diversion program may not significantly improve if certain factors like mental health and family involvement are not taken into consideration, the broader data suggests that diversion programs add a measurable benefit to society.⁶⁴ The idea of being tough on crime does not address the root causes and furthermore perpetuates a system that ignores the underlying causes of such behavior and burdens certain youth with impediments that follow them potentially for the rest of their lives. When the use of tough-on crime resources employed by the policing agents are removed, the underlying causes will once again flair up due to the continued presence of an environment stoking desperation behavior.⁶⁵

Conclusion

As more data is compiled, it appears to validate the conclusion that arrests and formal involvement in the justice system are counterproductive both for public safety and the adolescent’s well-being.⁶⁶  However, there are potentially significant gaps in the data due to some states and jurisdictions not providing or tracking the data.⁶⁷ Nevertheless, the data appears to consistently show that diversion programs produce positive outcomes and decrease the likelihood of subsequent incarceration while also increasing the likelihood of graduation and the youth’s outlook on future prospects. ⁶⁸Additionally, these programs appear from the data to be better suited for creating an environment in which the adolescent takes responsibility and learns from their mistakes while repairing the harm that was caused to the victim and the broader community.

Furthermore, diversion programs require less government spending than youth incarceration and are proven to be more monetarily beneficial to the community. Some studies show that for every dollar invested into diversion programs the added benefit returned to the community could be as much as twenty-five times the expenditure.⁶⁹ Overall, the data appears to provide sufficient support to conclude that diversion programs should have a significant role in shaping how we address delinquent behavior in our youth.

1. See Katharine Webster, The Cost of Pleading Innocent: The Kalief Browder Case, UMASS Lowell (Feb. 27, 2019), https://www.uml.edu/news/stories/2019/cj_panel.aspx.  

2. See id.

3. See id.

4. See id.

5. See Edwin Grimsley, Lessons about Black Youth and Wrongful Convictions: Three Things You Should Know, Innocence Project (May 1, 2015), https://innocenceproject.org/news/lessons-about-black-youth-and-wrongful-convictions-three-things-you-should-know/ .

6. See id.

7. See The Juv. Just. Pol’y and Data Bd., Improving Access To Diversion and Community-based Interventions for Justice Involved Youth 7-8 (2019), https://www.mass.gov/doc/improving-access-to-diversion-and-community-based-interventions-for-justice-involved-youth-0/download.

8.See Richard Mendel, Protect and Redirect: America’s Growing Movement to Divert Youth Out of the Justice System, The Sentencing Project (Mar. 20, 2024), https://www.sentencingproject.org/reports/protect-and-redirect-americas-growing-movement-to-divert-youth-out-of-the-justice-system/;  The Juv. Just. Pol’y and Data Bd., supra note 7; Citizens for Juv. Just., Less Crime for Less Money 3 (2016), www.cfjj.org/less-crime/.

9. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 7-11; Annie E. Casey Found., Transforming Juvenile Probation: A Vision for Getting It Right 20 (2018); Gina Vincent, et al., Risk Assessment in Juvenile Justice: A Guidebook for Implementation, New York, N.Y.: Models for Change 21 (2012), chrome-extension://cefhlgghdlbobdpihfdadojifnpghbji/https://modelsforchange.net/publications/346/Risk_Assessment_in_Juvenile_Justice_A_Guidebook_for_Implementation.pdf.

10. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 7-11.

11.See Edward Grimsley, supra note 5; Annie E. Casey Found., supra note 9, at 5; Citizens for Juv. Just., supra note 8.

12.See Richard Mendel, supra note 8; Annie E. Casey Found., supra note 9, at 10; Gina Vincent, et al., supra note 9, at 22-23; see generally Cmty. Connections for Youth, South Bronx Community Connections: An Innovative Approach to Diverting Youth from Juvenile Justice Involvement Using A Positive Youth Development Framework Built on The Strengths of Grassroots Faith and Neighborhood Organizations (2014), chrome-extension://cefhlgghdlbobdpihfdadojifnpghbji/https://www.nycourts.gov/ip/justiceforchildren/PDF/RestorativePracticeConf/J2-Austria-CCFY-SBCC-Companion_Guide.pdf .

13. See Richard Mendel, “Protect and Redirect: Best Practices for Juvenile Diversion.” The Sentencing Project (Apr. 18, 2024), https://www.sentencingproject.org/policy-brief/protect-and-redirect-best-practices-for-juvenile-diversion/;Suzy Champlin, Improving and Expanding Youth Diversion, Citizens for Juv. Just. (Aug. 15, 2024), https://www.cfjj.org/cfjj-blog/diversion.

14. See Suzy Champlin, supra note 13; See Gina Vincent, et al., supra note 9, at 23-24.

15. See Annie E. Casey Found., supra note 9, at 13.

16. See Suzy Champlin, supra note 13.

17. See Citizens for Juv. Just., supra note 8, at 2; Melissa Nadal, William Bales & George Pesta, An Assessment of the Effectiveness of Civil Citations as an Alternative to Arrest Among Youth Apprehended by Law Enforcement 6 (2019), chrome-extension://cefhlgghdlbobdpihfdadojifnpghbji/https://www.ojp.gov/pdffiles1/nij/grants/254453.pdf.

18. See Suzy Champlin, supra note 13.

19.See Richard Mendel, supra note 8; Suzy Champlin, supra note 13; Richard Mendel, supra note 13.

20. See Suzy Champlin, supra note 13.

21. See id.

22. See Richard Mendel, supra note 8; The Juv. Just. Pol’y and Data Bd., supra note 7, at 12-14; Annie E. Casey Found., supra note 9, at 13.

23. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 13-14.

24. See Annie E. Casey Found., supra note 9, at 21.

25. See id. at 26-27.

26. See Annie E. Casey Found., supra note 9, at 26-27; Suzy Champlin, supra note 13.

27. See Suzy Champlin, supra note 13.

28. See id.

29. See Richard Mendel, supra note 8.

30. See Suzy Champlin, supra note 13.

31. See Suzy Champlin, supra note 13.

32. See Citizens for Juv. Just., supra note 8.

33. See Richard Mendel, supra note 8.

34. See Richard Mendel, supra note 8.

35. See Richard Mendel, supra note 8.

36. See Office of Juv. Just. And Delinquency Prevention, Risk/Needs Assessments for Youths (2015), chrome-extension://cefhlgghdlbobdpihfdadojifnpghbji/https://ojjdp.ojp.gov/model-programs-guide/literature-reviews/risk_needs_assessments_for_youths.pdf

37. See Gina Vincent, et al., supra note 9, at 29-44.

38. See id.

39. See id.

40. See id.

41. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 7-8; Annie E. Casey Found., supra note 9, at 25-26.

42. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 7-8; Annie E. Casey Found., supra note 9, at 25-26.

43. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 7-11; Annie E. Casey Found., supra note 9, at 25-26.

44. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 7.

45. See Melissa Nadal et al., supra note 17, at 7.

46. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 7-8.

47. See Annie E. Casey Found., supra note 9, at 41-42.

48. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 7.

49. See Just. Ctr. The Council of State Gov’ts, From First Offense to Future Arrests: The Impact of Probation on Youth (2024), chrome-extension://cefhlgghdlbobdpihfdadojifnpghbji/https://csgjusticecenter.org/wp-content/uploads/2024/06/FromFirstOffensetoFutureArrests_ImpactofProbation.pdf.

50. See Just. Ctr. The Council of State Gov’ts, supra note 49, at 1-3; Annie E. Casey Found., supra note 9, at 6.

51. See Just. Ctr. The Council of State Gov’ts, supra note 49, at 1-3.

52. See id.

53. See Richard Mendel, supra note 8.

54. See id.

55. See id.

56. See Pew Charitable Trusts, South Dakota’s 2015 Juvenile Justice Reform (2016).

57. See S. D. Juv. Just. Oversight Council, Juvenile Justice: Public Safety Improvement Act 2021 Annual Report 4-11 (2022), chrome-extension://cefhlgghdlbobdpihfdadojifnpghbji/https://boardsandcommissions.sd.gov/bcuploads/PublicDocs/2021%20South%20Dakota%20JJPSIA%20Annual%20Report.pdf.

58. See Amy Golden, More than half of juvenile cases diverted by DA’s office, Longmont Leader (Mar. 3, 2023), https://www.longmontleader.com/crime/more-than-half-of-juvenile-cases-diverted-by-das-office-6639748.

59. See id.

60. See Melissa Nadal et al., supra note 17, at 27-28.

61. See id.

62. See id.

63. See Richard Mendel, supra note 8.

64. See Craig S. Schwalbe et al., A meta-analysis of experimental studies of diversion programs for juvenile offenders,Clinical Psych. Rev., 26–33 (2012), https://www.sciencedirect.com/science/article/pii/S0272735811001814?via%3Dihub.

65. See Annie E. Casey Found., supra note 9, at 8.

66. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 7; Elizabeth Cauffman, et al., Crossroads in juvenile justice: The impact of initial processing decision on youth five years after first arrest, Dev. And Psych. 33, 700-713 (2021).

67. See Richard Mendel, Protect and Redirect: Measuring Equity and Results in Juvenile Diversion - Issue Brief#3 2-6 (Apr. 2024), The Sentencing Project, chrome-extension://cefhlgghdlbobdpihfdadojifnpghbji/https://www.defendyouthrights.org/wp-content/uploads/Protect-and-Redirect-Measuring-Equity-and-Results-in-Juvenile-Diversion-Diversion-Brief-3.pdf. 

68. See The Juv. Just. Pol’y and Data Bd., supra note 7, at 7; Richard Mendel, Diversion: A Hidden Key to Combating Racial and Ethnic Disparities in Juvenile Justice, The Sentencing Project (Aug. 30, 2022), https://www.sentencingproject.org/reports/diversion-a-hidden-key-to-combating-racial-and-ethnic-disparities-in-juvenile-justice/; Citizens for Juv. Just., supra note, 8, at 2.

69. See Citizens for Juv. Just., supra note, 8, at 2.