Diversion: A Hidden Key to Combating Racial and Ethnic Disparities in Juvenile Justice

Executive Summary

Diverting youth from juvenile court involvement should be a central focus in efforts to reduce racial and ethnic disparities and improve outcomes in our nation’s youth justice systems.

Clear evidence shows that getting arrested in adolescence or having a delinquency case filed in juvenile court damages young people’s futures and increases their subsequent involvement in the justice system. Compared with youth who are diverted, youth who are arrested and formally petitioned in court have far higher likelihood of subsequent arrests and school failure. Pre-arrest and pre-court diversion can avert these bad outcomes.

Research shows that Black youth are far more likely to be arrested than their white peers and far less likely to be diverted from court following arrest. Other youth of color – including Latinx youth, Tribal youth, and Asian/Pacific Islander youth – are also less likely than their white peers to be diverted. The lack of diversion opportunities for youth of color is pivotal, because greater likelihood of formal processing in court means that youth of color accumulate longer court histories, leading to harsher consequences for any subsequent arrest.

Expanding diversion opportunities for youth of color therefore represents a crucial, untapped opportunity to address continuing disproportionality in juvenile justice.

What is diversion and why is it so important?

Diversion is a decision to address delinquent conduct without involving a young person formally in the court system. This can be accomplished in one of two ways.

• Pre-arrest diversion occurs when authorities make a decision not to involve police, not to make an arrest, or not refer a case to juvenile court.
• Pre-court diversion, or informal processing, occurs whenever prosecutors or court intake staff decide that a young person referred to juvenile court on a delinquency charge should not be formally petitioned in court, and their misconduct should rather be addressed informally outside the court system.

Both types of diversion are used far less than the evidence shows would be optimal. This is especially true for youth of color, who are denied opportunities for diversion far more often than their white peers.

For most youth, diversion is more effective and developmentally appropriate than court. Compelling research finds that formal involvement in the justice system tends to undermine rather than enhance public safety and to reduce young people’s future success. Studies find that youth diverted from the justice system:

• Have far lower likelihood for subsequent arrests
• Are less likely to be incarcerated
• Commit less violence
• Have higher rates of school completion and college enrollment
• Earn higher incomes in adulthood

Diversion is vastly underutilized in the United States. Of the youth referred to juvenile or family courts for delinquency each year, just 7% are accused of serious violent offenses. Therefore, a large majority of youth accused of delinquency should be diverted rather than arrested and formally processed in a juvenile court. Yet the use of diversion remains limited.

• While no national data are available on the use of pre-arrest diversion, surveys find that only one-third of law enforcement agencies nationwide participate in any form of pre-arrest diversion.
• The proliferation of school resource officers stationed in our nation’s schools has driven more misbehavior at school into court.
• Among youth referred to juvenile courts in 2019, less than half were handled informally. The share of juvenile cases diverted in the U.S. has not changed in a generation despite increasing evidence showing diversion’s benefits over formal court processing.
• By contrast, many other advanced nations have substantially expanded youth diversion in recent times, and divert a far higher share of delinquency cases than the U.S.

Racial and ethnic disparities in diversion are deep, pervasive and longstanding. Nationwide in 2019, 52% of delinquency cases involving white youth were handled informally (diverted), far higher than the share of cases diverted involving Black youth (40%). For Latinx, Tribal, and Asian American youth, the share of cases diverted ranged from 44-48%. These gaps cannot be explained by the seriousness of offenses youth are accused of committing: glaring disparities between Black vs. white youth can be seen within every major offense category. Over time, these disparities have been getting worse, not better.

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. 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.

Why are disparities at diversion so severe?

Disparities in diversion often emerge from subjective biases. Clear criteria for making diversion decisions are seldom spelled out in state laws, juvenile court procedures or probation department policy manuals. Instead, with little oversight and few objective guidelines, diversion decisions are highly subjective, making this stage of the process especially prone to disparities and geographic variations.

Implicit Bias Against Youth. Abundant research shows most people’s thinking is swayed by subconscious attitudes that lead them to view and respond to people of color differently (and less favorably) than to whites. The impact of these implicit biases is especially powerful in perpetuating disparities in juvenile justice – and in diversion particularly.

Implicit Bias Against Families. Research also finds that implicit biases extend to young people’s families. Court officials often assess families of color more harshly than white families. These negative assessments limit diversion opportunities for youth of color and exacerbate disparities.

Unequal Justice By Geography. Disparities in diversion opportunities are also perpetuated by what can be vast differences in diversion practices between jurisdictions within states.

Disparities in diversion are often exacerbated by problematic practices, including:

• Rules that unnecessarily limit eligibility for diversion to youth referred to court for the first time on misdemeanor or status offenses.
• Weak efforts to inform youth and families and secure their participation.
• Rules that make it difficult for families to meet diversion program requirements.
• Requirements that youth admit to guilt in order to qualify for diversion.
• Fees/costs required to participate in diversion programming.
• Punitive responses to youth and families unable to pay diversion fees or restitution.
• Assignment of diverted youth to informal probation caseloads.
• Lack of support and assistance to youth and families at risk of failing diversion.

What can be done to reduce diversion disparities and expand diversion opportunities?

Several states in recent years have expanded and improved diversion as part of comprehensive juvenile justice reform laws. Other states have adopted policies and programs specifically targeting diversion, as have numerous local justice systems.

These recent reform efforts have showcased several promising strategies:

• Expanding the use of diversion through new rules allowing, mandating, or creating a presumption for diversion for specific offenses.
• Providing funding to support diversion programming and to create new diversion pathways.
• Intensifying efforts to contact and engage parents/guardians and other family members.
• Reducing imbalances in diversion opportunities within states by requiring all jurisdictions to develop diversion options, or by setting standard guidelines for diversion.
• Limiting periods of diversion oversight and minimizing consequences for non-compliance with diversion rules and requirements.
• Creating new mechanisms to assist and support youth who might otherwise fail diversion and have their cases formally petitioned in court.
• Improving data collection in order to track progress and analyze disparities.
• Creating ongoing oversight boards to review progress and recommend adjustments and further policy and practice reforms.

Importance of focusing explicitly on racial and ethnic equity. To date, however, renewed efforts to expand and improve diversion have most often lacked one essential ingredient: an explicit and determined focus on reducing racial and ethnic disparities. Especially at the diversion stage of the process, where decisions are often subjective and easily influenced by implicit biases, reform efforts are unlikely to narrow disparities unless new approaches are crafted with an explicit focus on racial equity.

Therefore, state and local advocates and system leaders should:

• Make reducing racial and ethnic disparities the primary focus 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.
• 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.

Conclusion

The diversion stage of the juvenile court process should be a top priority for youth justice reform. Advocates should push for and system leaders must take aggressive action to address racial and ethnic disparities in diversion. Combined, reforms to expand and improve the use of diversion offer perhaps the most important and promising avenue currently available to reduce disparities and to improve youth justice systems nationwide.

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