Diversion involves efforts by juvenile justice decision makers (for example, police or juvenile court personnel) to respond to delinquent youths in ways that avoid formal court processing. Law enforcement officers, school officials, and others who commonly refer youths to juvenile courts exercise discretion. Rather than referring youths who are alleged to be engaged in delinquent behavior to juvenile court, they may decide to take no formal action by warning the youth, asking parents to take action, or referring the youth and possibly the family to a local program for assistance. In addition, when law enforcement officers, school personnel, or others make referrals to juvenile court, juvenile court personnel exercise similar discretion; they may decide to warn the youth and dismiss the case or refer the case to a local program for services.
Decisions to treat youths in ways that avoid formal juvenile court processing represent examples of juvenile diversion, and they are common responses to delinquent behavior. Indeed, many cases that could result in the arrest of a juvenile are handled in some other way by the police and juvenile courts. For example, in 2000, slightly more than 20% of youths taken into custody by the police were handled within the department and released, and almost 1% were referred to social service agencies (Maguire and Pastore 2005). Approximately 42% of the cases referred to juvenile courts in 2000 were handled informally (Stahl, Finnegan, and Kang 2005).
Diversion is based on the fact that formal responses to youths who violate the law, such as arrest, adjudication, and the creation of a formal juvenile court record, are not always in the best interests of children, nor do such responses necessarily protect community safety. Consequently, efforts to divert youths from the formal juvenile justice process (for example, by warning and releasing youths or by referring them to local agencies) have long been a part of juvenile justice practice. Even before the development of the first juvenile court in Cook County, Illinois, in 1899, youths were often spared the harshest punishments because many recognized that formal responses were often counterproductive. Indeed, the development of the juvenile court itself can be seen as a mechanism for diverting youths from the adult criminal justice process. More recently, diversion has also found support among those concerned with the problem of disproportionate minority confinement and overrepresentation in the juvenile justice system.
The Theoretical and Practical Rationale for Diversion
Historically, many law enforcement officials, judges, attorneys, child advocates, academics, and others have questioned the reformative potential of adult courts, jails, and prisons and have sought to spare youths from criminal processing. Even after the creation of juvenile courts, questions have been raised about the ability of juvenile courts and corrections programs to meet the needs of many youths and protect community safety. Concerns about the appropriateness of criminal or juvenile justice processing of juveniles were heightened during the political and social unrest that characterized much of the 1960s and 1970s—a time when increasing numbers of youths were coming to the attention of the police and courts. In addition, a well-developed theoretical rationale for diversion became popular during this time. This theoretical rationale, typically referred to as societal reaction or labeling theory, indicated that formal processing may actually lead to an increase in delinquent behavior.
Societal reaction or labeling theory focused on three interrelated topics: (1) the process by which deviant or criminal labels are developed; (2) the process by which deviant or criminal labels such as “delinquent” are applied; and (3) how being labeled influences an individual, as well as others’ reaction to that individual (Pfohl 1994). Although diversion had long been a response to many youths involved in illegal behavior, labeling theory’s focus on the application of labels to the individual and concern over the effects of labels served as the impetus for a renewed interest in diversion and the expansion of diversion programs for youths during and after the 1970s. Recommendations made by the 1967 President’s Commission on Law Enforcement and the Administration of Justice that were intended to improve juvenile justice noted the following:
The formal sanctioning system and pronouncement of delinquency should be used only as a last resort. In place of the formal system, dispositional alternatives to adjudication must be developed for dealing with juveniles, including agencies to provide and coordinate services and procedures to achieve necessary control without unnecessary stigma. . . . The range of conduct for which court intervention is authorized should be narrowed, with greater emphasis on consensual and informal means of meeting the problems of difficult children.
According to societal reaction or labeling theorists, labels such as delinquent, chronic juvenile offender, thief, doper, problem youth, and the like can have a variety of negative consequences for those who are given such labels. For example, labels can lead others to assume things about an individual that may not be true. A youth who has broken the law in the past and has been labeled a delinquent may be incorrectly treated as untrustworthy and undeserving and may be subjected to a variety of punitive responses as a result of being labeled. Indeed, the perceptions that adults, authority figures, and peers have of others appear to play an important role in how youths are treated. If, through being labeled, youths are believed to possess undesirable characteristics associated in the public mind with criminality or potential criminality, they are more likely to be formally processed by police and other control agents and to be avoided by law-abiding individuals.
In addition, youths saddled with a negative label often have fewer opportunities for involvement in normal law-abiding activities. Without such opportunities, they are more likely to associate with those in similar circumstances, thus increasing the likelihood of further deviance. Furthermore, responding to youths as if they were a lesser form of human being may lead them to see themselves in a more negative light.
One important issue raised by societal reaction theorists is whether responses to deviant behavior such as delinquency can increase the likelihood of subsequent offending. This possibility was spelled out by sociologist Edwin Lemert in 1951, when he distinguished between primary and secondary deviance. According to Lemert:
Primary deviance is assumed to arise in a wide variety of social, cultural, and psychological contexts, and at best has only marginal implications for the psychic structure of the individual; it does not lead to symbolic reorganization at the level of self-regulating attitudes and social roles. Secondary deviation is deviant behavior, or social roles based upon it, which becomes a means of defense, attack, or adaptation to overt and covert problems created by the societal reaction to primary deviation. In effect, the original ”causes” of the deviation recede and give way to the central importance of the disapproving, degradational, and isolating reactions of society.
Diversion Programs and Their Effectiveness
Essentially, two types of diversionary responses are used with juvenile offenders. One response consists of minimal or no intervention whenever possible in order to avoid the negative consequences of labeling. This approach is often called true diversion or what sociologist Edwin Schur (1973). calls radical nonintervention (that is, leaving children alone whenever possible).
A second response consists of referral to a diversion program. Often these programs are operated by local private or public social service agencies, although they are sometimes operated by law enforcement agencies or juvenile courts. Collectively, these programs offer a variety of services to children and in many cases families. Common types of programs use interventions such as family crisis intervention; individual, family, and group counseling; mentoring and child advocacy; individual and family counseling coupled with employment, educational, and recreational services; basic casework services; and ”scared straight” programs that expose youths to the harsh realities of jails and prisons through tours and/or encounters with prisoners.
Supporters of diversion maintain that it decreases the number of youths involved in the formal juvenile justice process, frees up scarce resources for responding to more serious offenders, reduces offending among youths who receive diversionary treatment, minimizes the stigma associated with formal intervention, is more cost effective than formal processing, reduces the level of coercion employed in juvenile justice, and lessens minority over-representation in juvenile corrections. Moreover, there is evidence that diversion including radical nonintervention can be more effective than formal court processing in reducing recidivism and minority overrepresentation in some cases. Programs that employ mentoring and child advocacy, family crisis intervention, and offer multiple services such as individual treatment, family services, educational and job training, exposure to positive role models, peer discussion, and involvement in community projects are potentially viable diversion approaches (Lundman 2001). In addition, there is clear evidence that radical nonintervention can be as effective as referral to a diversion program or to juvenile court in some instances (Dunford, Osgood, and Weichselbaum 1981). However, other research indicates that some diversion programs, notably those designed to scare kids straight and those that encourage loosely structured relationships between youths and adult helpers, are associated with higher levels of subsequent offending (Davidson et al. 1990; Finckenauer and Gavin 1999).
In addition to increased recidivism, other problems have been found to plague some diversion programs. Although these programs are often touted as a way to reduce the number of youths involved in the juvenile justice process, some diversion programs may actually lead to net widening, which is the practice of processing youths who would otherwise be left alone if not for the program. Research on diversion programs has found that they sometimes lead to an increase in the number of youths involved in the juvenile justice process. Overuse of diversion programs may lead to increased costs and reduce the resources available for serious offenders. Moreover, involvement in diversion programs can lead to the stigmatization; youths and their parents are often coerced into these programs, which raises concerns about a lack of due process associated with some diversionary programs.
The research on diversion has produced mixed results. Clearly, there are problems associated with diversion that must be considered prior to its implementation, and existing programs should be carefully evaluated to assess the extent to which they meet their goals and objectives. Nevertheless, diversion holds promise as an effective mechanism for helping some youths avoid juvenile justice processing, protecting the scare resources of juvenile courts, and reducing recidivism among program participants.