Diversion in the Juvenile Justice System

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By: Milana Carse

Famed Russian writer Fyodor Dostoyevsky is often mis-credited with the observation, “The degree of civilization in a society can be judged by entering its prisons.” Regardless of who said it, I would agree, and broaden this to say that the way a nation deals with those who break its laws reflects its priorities and its character.

I am a student, living near Chicago in the United States, and I believe refocusing my home nation’s criminal justice system from retribution to rehabilitation is an important step in becoming the nation we want to be.  It is especially important to apply such policies to teenagers and children in the juvenile justice system. I also believe the US should learn from our peer nations, many of which already operate under this philosophy.

From an early age, I developed an interest in social justice and political action, and it has led to my involvement with a diversionary program for youths in the juvenile justice system in my community. Over the past three years, my experiences there have exposed me to the role of empathy and restoration in the system, and how important those principles are.

While the US’s national crime rates (other than gun homicides) are not much higher than those in other advanced societies like the UK, the US incarcerates more people per capita than nearly any other country in the world, and five to ten times as many as most Western European countries. The ratios are similar for juvenile (under-18) incarceration rates, where the US imprisons teenagers twice as often as the next-highest nation. There are many reasons for this disparity, and while the US incarceration rate has fallen in the past 15 years, those convicted of crimes in the US are still much more likely to go to prison than in other developed nations, whether as a young person or an adult.

Regardless of its conditions, imprisonment is among the most severe punishments for a person who comes into contact with the legal system. However, the American prison system is notoriously harsh, prioritizing punishment, security, and cost containment over rehabilitation. Indeed, studies have found that many US prisoners suffer from mental illnesses that contributed to their criminality, illnesses that often remain under-treated while incarcerated. The US is also unusual in that it imprisons people under the age of 18 in adult prisons, and such prisoners are often especially abused by their older peers. These policy choices impose horrific burdens on millions of our fellow Americans, burdens we also bear as a nation.

While not all people convicted of crimes deserve leniency, I believe that very often there are strong arguments for diverting as many people as possible from punitive sentences such as imprisonment, especially young people. Beyond the moral and developmental questions involved, there are also persuasive practical and economic considerations. In the US, criminal convictions for even minor offenses can limit future opportunities, and incarceration compounds these costs many-fold, even as though its effectiveness as a deterrent is not clear.

I believe the US system relies far too heavily on incarceration instead of diversionary programs, focusing on deterrence and retribution instead of on rehabilitation. This policy often leads to a cycle of social stigmatization, entrenched poverty, and future offending.

Many other developed nations offer rehabilitation-focused alternatives, especially in their juvenile justice systems: Germany demonstrates one such approach. If convicted of a crime, a young German is many times more likely than a young American to be sentenced to counseling and restorative steps rather than incarceration. Much of this disparity is a recognition on the part of the German justice system that young people “have a diminished capacity to control impulsive behavior and a heightened susceptibility to peer pressure [relative to adults]." Moreover, like children, the vast majority of young adults who commit crimes, including very serious crimes, will age out of this behavior as they mature. Developmentally appropriate interventions can help facilitate this growth, whereas developmentally inappropriate responses can undermine it.” Thus, even in the case of incarceration, German prisons focus on rehabilitation and counseling, not punishment. Although the data are not directly comparable, this approach seems to have a positive effect: some studies indicate about 30% of young people imprisoned in Germany return to prison within three years, while as much as 75% of young people imprisoned in the US are rearrested within the same time period. The German example may be only one example, but it demonstrates that other developed nations have had success in centering their youth justice systems on rehabilitation, not punishment.

I have personally witnessed the good that diverting young people from incarceration or other punitive punishments can yield. For the past three years, I have served on a peer jury in my community. Peer juries are one of several variants of a “teen court”, a broad term for diversionary programs for teenagers that are run by other teenagers. In communities with teen court programs, police and prosecutors can offer people under the age of 18 a chance to avoid a trial by working with a panel of other teenagers to examine their acts, and pursue restitution and punishment outside of the penal system.

In my community’s peer jury system, the person must first admit to their crime, and then explain their actions to a panel of three to five volunteer teenage peers that meets monthly. The panel questions the participant about the causes of their behavior, the lessons learned, and other ways the problem should have been solved. If my colleagues and I believe the effort is genuine, we assign restorative steps such as community service, written apologies to the victims, and/or essays on how their and their family’s lives would have been changed by a conviction. Participants return a month later to present their work to the peer jury. If we believe they have given real consideration to their actions, the teenager’s charges are usually suspended.

Teen court diversionary programs began in the US in the 1970s, and it is estimated that there were over 1,000 such programs across the nation by 2010, handling over 100,000 cases per year. Although studies have been inconclusive on teen courts’ effectiveness on reducing recidivism relative to normal criminal proceedings, I strongly believe that receiving judgements from their peers instead of adults is a powerful influence on teenagers in the justice system, especially when they are given respect and opportunities to remediate their offenses.

While I will continue to serve as a peer juror until I reach 18, effecting change across the country takes more than just a local effort– it requires action at the state and national levels. To that end, I joined the American Civil Liberties Union (ACLU) and interned for my district member of Congress, Raja Krishnamoorthi. These experiences are helping me understand how social movements can raise awareness of issues such as justice reform, and how laws are created to address them. Even as I step into this world to lend a hand toward addressing what I view as a social wrong, there is already change afoot: recently my home state of Illinois enacted a massive criminal justice reform, the SAFE-T Act. While SAFE-T changes many aspects of the system, it also expands diversionary programs for some types of offenses, a step in the right direction of rehabilitative and restorative instead of punitive justice for youth and adults alike.

Throughout history, the US, like many nations, implemented penal policies that focused on harsh punishments like incarceration rather than rehabilitation, but the US has been very unusual in the extent to which it applies these principles to young people, as well. The theory has always been that this would not only act as a deterrent, but would also remove “criminal elements” from society. However, we have seen that this approach is likely ineffective and very damaging for youth, as punitive punishments can derail their lives, creating a cycle of social damage that leads to poverty, desperation, and further offending. Increasing evidence from programs indicates that rehabilitation is a viable and effective alternative to incarceration, especially for youth. We should be open to experiments that explore these possibilities.

The views shared here are those of the author and do not necessarily reflect the opinions of the Coalition for Juvenile Justice.