NCJ Number
38923
Date Published
1977
Length
50 pages
Annotation
JUVENILE DIVERSION IS DEFINED, A TYPOLOGY OF PROGRAMS IS OFFERED, AND A RANGE OF POSSIBLE LEGAL PROBLEMS ARISING FROM DIVERSION IS EXPLORED.
Abstract
THE JUVENILE COURT ITSELF WAS ESTABLISHED AS A DIVERSIONARY DEVICE - AN INSTITUTION TO DIVERT JUVENILES FROM THE ADULT CRIMINAL PROCESS AND TO MAKE THEM ELIGIBLE FOR THERAPEUTIC, REHABILITATIVE PROGRAMS. THE SUPREME COURT HAS HELD THAT JUVENILE ADJUDICATORY HEARINGS ARE TO BE MEASURED BY CERTAIN DUE PROCESS STANDARDS. MODERN JUVENILE DIVERSION PROGRAMS HAVE THUS RESULTED FROM THE PARTIAL FAILURE OF A DIVERSIONARY MOVEMENT. THE AUTHOR SUGGESTS THAT THE DANGERS OF SACRIFICING CONSTITUTIONAL SAFEGUARDS TO THE GOALS OF TREATMENT HAVE BEEN MADE APPARENT BY THE HISTORY OF THE JUVENILE COURT. WITH THIS BACKGROUND IN MIND, LEGAL PROBLEMS SUGGESTED BY MODERN DIVERSION PRACTICES ARE ANALYZED. JUVENILE DIVERSION IS DEFINED AS THE SUSPENSION OR TERMINATION OF PROCEEDINGS AGAINST A JUVENILE, AFTER AN INITIAL RECORDED CONTACT WITH A LAW ENFORCEMENT OFFICIAL BUT BEFORE A FINDING OF DELINQUENCY OR INVOLVEMENT, ON THE CONDITION OR ASSUMPTION THAT HE WILL PARTICIPATE IN SOME TYPE OF THERAPEUTIC PROGRAM OR PLAN. IN AID OF THE LEGAL ANALYSIS, A CLASSIFICATION OF DIVERSION PROGRAMS IS PROPOSED. IT IS BASED UPON TWO CRITERIA: WHO MAKES THE INITIAL DECISION TO DIVERT? TO WHAT RESOURCES IS THE JUVENILE DIVERTED? THREE MODELS OF DIVERSION PROGRAMMING ARE DEVELOPED - DIVERSION WITHIN THE JUVENILE JUSTICE SYSTEM; DIVERSION WITHOUT THE JUVENILE JUSTICE SYSTEM, DECISION MADE BY SYSTEM PERSONNEL; DIVERSION WITHOUT THE JUVENILE JUSTICE SYSTEM, DECISION MADE BY PROGRAM PERSONNEL. THE SOURCES OF THE POWER TO DIVERT ARE NEXT EXPLORED FOR EACH OF THE THREE MODELS; THESE RANGE FROM SPECIFIC STATUTORY AUTHORIZATIONS THROUGH INFORMAL VERBAL AGREEMENTS AMONG JUVENILE AGENCIES. THIS IS FOLLOWED BY AN ANALYSIS OF POTENTIAL CHALLENGES TO THE DIVERSION INTAKE DECISION. BOTH DUE PROCESS AND EQUAL PROTECTION APPLICATIONS TO THE INTAKE DECISION ARE CONSIDERED. IT IS SUGGESTED THAT DUE PROCESS MAY REQUIRE A PRE-DIVERSION ELIGIBILITY HEARING, AND THAT CERTAIN EXCLUSIONARY CRITERIA EMPLOYED BY PROGRAMS RUN AFOUL OF THE EQUAL PROTECTION CLAUSE. THE PROBLEMS CREATED BY PROGRAMS WHICH REQUIRE GUILTY PLEAS OR ADMISSIONS OF RESPONSIBILITY FOR THE OFFENSE AS A PREREQUISITE TO DIVERSION ARE ANALYZED FOR POSSIBLE VIOLATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION. IT IS HYPOTHESIZED THAT SUCH REQUIREMENTS MAY BE CONSTRUED AS UNCONSTITUTIONAL CONDITIONS ON THE EXERCISE OF A CONSTITUTIONAL RIGHT. CASE LAW REGARDING JUVENILE PROBATION AND PAROLE IS EXAMINED, AND IT IS SUGGESTED THAT THE IMPLICATIONS OF THESE RULINGS MANDATE A HEARING WITH PROCEDURAL DUE PROCESS PRIOR TO TERMINATING A JUVENILE FROM A DIVERSION PROGRAM. A FINAL SECTION CONSIDERS AN ASSORTMENT OF OTHER LEGAL ISSUES RAISED BY JUVENILE DIVERSION - SPEEDY TRIAL WAIVERS, CONFIDENTIALITY OF DIVERTEE-PROGRAM STAFF COMMUNICATIONS, SEALING AND EXPUNGEMENT OF DIVERSION RECORDS, PARENT-CHILD CONFLICTS, AND THE IMPLICATIONS OF THE JUVENILE RIGHT TO TREATMENT FOR DIVERSION....KOB