Report: Diversion Can Address Racial Bias Against Justice-Involved Youth

In order to reduce racial and ethnic disparities and enhance outcomes for young people in our country’s juvenile justice systems, those systems need to focus on diversion, a new report from the Sentencing Project argues.

There is overwhelming evidence that youth arrests and delinquency cases brought before juvenile courts have a negative impact on young people’s futures and increase their involvement with the legal system.

Compared to youth who are diverted, young people who are arrested and officially petitioned in court are much more likely to experience subsequent arrests and academic failure.

A report from the Sentencing Project released Tuesday, titled “Diversion: A Hidden Key To Combating Racial and Ethnic Disparities in Juvenile Justice,” argues that these undesirable outcomes can be avoided through pre-arrest and pre-court diversion — but only if state and local systems work to address structural and racial disparities in which young people are given those chances.

According to a review of existing research, Black young people have a much lower likelihood of being diverted from court after being arrested than do white youth. Latino, Native American, Asian/Pacific Islander youth and other young people of color are also less likely to be diverted than their white peers.

The lack of diversion opportunities for young people of color is critical because their increased likelihood of formal court processing results in longer court histories and harsher penalties for any subsequent arrest.

“Expanding diversion opportunities for youth of color therefore represents a crucial, untapped opportunity to address continuing disproportionality in juvenile justice,” report author Richard Mendel, senior research fellow on youth justice at the Sentencing Project wrote.

Diversion is generally more productive and developmentally appropriate for young people accused of crimes than court. According to compelling research, Mendel writes, formal involvement in the justice system tends to decrease young people’s chances of success in the future as well as public safety.

Young people who are diverted from the criminal justice system are less likely to reoffend, to serve time in prison and to engage in violent behavior, and are more likely to complete their education, enroll in college and to earn more as working adults.

Just 7 percent of juveniles who are referred to juvenile or family courts are charged with serious violent crimes. Still, according to surveys, pre-arrest diversion is used by only one third of law enforcement agencies nationwide.

Despite growing research into the effectiveness of diversion, less than half of youth referred to juvenile courts in 2019 were handled informally, and these rates have not changed significantly in more than a generation.

Research finds that disparities in diversion reflect systemic bias, with severe consequences for young people. At least 20 academic studies over the past 25 years have detected significant racial or ethnic bias in decisions regarding formal processing of delinquency cases referred to juvenile court.

Justice Disparities

Many leading scholars have found that disparities in the early stages of the juvenile justice process, including diversion, are a key driver of larger disparities in subsequent stages of the process, including commitments to residential confinement.

“The evidence leaves no doubt that the justice system is toxic for youth and should be employed only in cases when young people pose a serious and imminent threat to the safety and well-being of others,” Mendel writes.

According to national data, Black youth are much more likely than their white peers to be arrested and are much less likely to have their cases diverted from court after arrest. And these decisions are largely discretionary, allowing for bias to distort the system even through policies that appear impartial.

“Diversion decisions most often rest on spur-of-the-moment judgments – making this stage of the process highly prone to disparities and to wide geographic variations,” Mendel writes.

Unequal treatment floods the process during these early stages, separating the experiences of many young people along demographic lines.

There is no empirical support for rules banning diversion for young people who are considered to be at a higher risk of recidivism and those who have committed felonies, Mendel writes. In fact, a 2013 meta-analysis discovered that diversion was just as effective for youth classified as moderate to high risk as it was for those classified as low risk.

Lower Recidivism Rates

Another 2014 study that looked at the recidivism outcomes for thousands of young people in Ohio discovered that, at every risk level, the recidivism rates of youth who were diverted from court were significantly lower than those of those who were formally petitioned.

High-risk youth who were diverted from court showed 40 percent lower recidivism rates than their peers who were petitioned in court.

Given the compelling evidence demonstrating that arrest and formal court processing increase the likelihood of subsequent arrests, have negative effects on school attendance, dropout rates, and self-reported delinquent behavior, the resulting lack of diversion opportunities for youth of color is critical and harmful, the Sentencing Project argues.

Mendel and the Sentencing Project suggest seven principles for state and local advocates and system leaders to seize on the opportunities to improve youth diversion:

• • Make diversion a primary focus in juvenile justice reform;
  • Make reducing racial and ethnic disparities the core emphasis in efforts to expand and improve diversion;
  • Abandon common rules and practices in diversion that harm youth of color disproportionately and exacerbate disparities;
  • Recognize and respond to the hidden influence of implicit bias by adopting policies that reduce subjectivity in diversion decisions;
  • Require that youth justice systems prepare racial impact statements to analyze the effects of new and existing policies and practices in diversion.
  • Collect, track and regularly report disaggregated data documenting progress (or the lack of it) in reducing disparities and expanding opportunities for diversion; and,
  • Sustain the focus on racial and ethnic equity by appointing an oversight body to track progress in expanding and reducing disparities in diversion, and to push for adjustments and additional reform steps over time.

The Sentencing Project is a D.C-based research and advocacy center that promotes humane responses to crime that minimize imprisonment and criminalization of youth and adults by promoting racial, ethnic, economic and gender justice.

Richard Mendel is a senior research fellow for youth justice at the Sentencing Project, where he conducts research and writes reports on reform of United States youth justice systems.

The full report can be read here.

Audrey Nielsen is a TCR contributing writer.