Diversion Programs for Adults
1997-05
By
Joan Nuffield, Ph.D.
The views expressed are those of the author
and are not necessarily those of the Ministry of the Solicitor
General of Canada. This document is available in French. Ce rapport
est disponible en français sous le titre:
Programme de déjudiciarisation à l'intention des adultes
.
Public Works and Government Services Canada
Cat. No. JS4-1/1997-5
ISBN: 0-662-26208-5
EXECUTIVE SUMMARY
This is a review of evaluated programs to divert adult offenders from
further involvement with the criminal justice system. It focuses on
"programmatic" diversion efforts and is organized according to the stage
in the criminal process at which the diversion initiative occurs. Because
of the paucity of evaluations of adult diversion, some findings from the
juvenile literature are included. In addition, some ideas from other
jurisdictions which may not have been evaluated are reviewed for their
possible utility in Canada.
Although there are very few sound evaluations available in the area, they
do point strongly to a number of findings, which are echoed in the
juvenile literature. Some studies suggest that cases which are "diverted"
through a formalized police procedure might never have been arrested, but
the existence of the formalized procedure creates a record of police
contact which follows the offender. Cases which are diverted post-charge
are more likely to be dismissed on successful completion of the program.
However, controlled studies indicate that large proportions of offenders
"diverted" at this stage would not have been fully prosecuted, convicted
or given a significant sanction if they had proceeded through the usual
course of the justice system. Rather, attempts to formalize the
discretion to divert cases tend to "widen the net" of social control. A
lengthier and more intensive intervention with the offender will often
result from diversion than from the more traditional process.
Diversion programs tend to be seen and used as a "break" given to first
offenders, younger offenders, those suspected or accused of minor
offences, and those who are considered to present little if any future
risk. Cases which may be difficult to prove in court also appear more
likely to be diverted, as are cases of mentally disordered offenders. For
offenders who do not fit these categories, diversion is less likely to be
seen as appropriate.
At the sentencing stage, efforts to divert "prison-bound" offenders from
jail also face challenges in identifying offenders who are truly
"prison-bound", obtaining services for them which will make a difference
in sentencing, and convincing judges that the severity of their offence
should not result in a jail term. Serious offenders for whom a community
sentence plan is rejected by the sentencing judge may face a more severe
penalty than if no plan had been presented. Nonetheless, there is some
evidence to suggest that diversion at the sentencing stage may have a
beneficial impact on some offenders' likelihood of being sentenced to the
community.
Many diversion programs which are "programmatic" have faced problems
common to correctional initiatives, in that the intervention may not be
suited to a large proportion of the client group, may not be well
implemented, and may fail to make a difference in the areas which they
are intended to address. The few studies which have compared the
recidivism of diverted cases to that of a suitable control group have
tended to find no significant differences. Expansion of criminological
knowledge about the design of effective programs may increase the success
of diversion programs in the future.
Expectations that diversion programs will reduce justice system costs
have not been supported in the literature. Most programs affect only a
very small proportion of criminal cases, some studies have shown that
diverted cases experience the same number of court appearances as their
controls, and no instances were found of diversion programs which
resulted in reductions of justice system expenditures. Indeed, some
studies suggest that diversion can increase justice system workloads and
that the diversion alternative is more expensive than the traditional
alternative.
Studies of the use of incarceration in different countries suggest that
it is not crime rates which account for differences in imprisonment
rates. While certain factors such as unemployment and public opinion can
affect imprisonment rates, it is a nation's internal criminal justice
policies which are the most important determinant of imprisonment use.
Thus, Canada is in a position to affect current trends in the use of
incarceration and other criminal sanctions.
TABLE OF CONTENTS
EXECUTIVE SUMMARY
PART I. Introduction
Purposes of Diversion
Evaluation of Adult Diversion
PART II. Pre-Charge Diversion
Pre-charge Diversion: Discussion
Diversion of the Mentally Ill from Justice Processing
PART III. Deferred Prosecution
Invoking the Process: An Add-on or a Mandatory Step?
Other System Considerations
Deferred Prosecution: Discussion
Mediation and Arbitration Programs
Dedicated Drug Treatment Courts
PART IV. Diversion at the Sentencing Stage
Alternate Sentence Planning Strategies
Community Service Orders
Day Reporting Centres
PART V. Post-incarceration Programs
Juvenile Decarceration in Massachusetts
PART VI. Ideas from the International Arena
Criminal Policy and Incarcerated Populations
PART VII. Summary and Conclusion
REFERENCES
Diversion Programs for Adults
PART I.
Introduction
This is a report on evaluated programs to divert adult offenders from
further involvement with the criminal justice system. For purposes of the
review, "diversion" was defined very broadly, and included the most
common use of the term (meaning the avoidance of full prosecution through
a screening process which occurs after the laying of a charge), as well
as processes which occur prior to the laying of a charge and the
avoidance of more intrusive measures (such as imprisonment or parole
revocation) following conviction.
Diversion has always been a feature of criminal justice, since with
certain exceptions, the exercise of discretion is permitted and even
encouraged at most stages of the justice system. The present review,
however, for the most part concentrates on specific, evaluated efforts to
reduce further system insertion for a targeted group of persons who come
to the attention of justice officials.
The review excludes purely descriptive accounts of adult diversion
projects, and concentrates on "programmatic" initiatives. Thus, the
report covers only those evaluated studies of adult diversion programs
which were intended to address offenders' risks and needs through program
intervention. This eliminated alternative forms of punishment in the
community (such as "shock incarceration" to short-term "boot camp"
programs) and alternatives which were purely incapacitative in nature
(such as house arrest or electronic surveillance).
Purposes of
Diversion
Over the years, a number of differing objectives have been established
for diversion initiatives. Palmer (1979:14) suggested that broadly, there
were five goals of diversion: "(1) avoidance of negative labelling and
stigmatization, (2) reduction of unnecessary social control and coercion,
(3) reduction of recidivism, (4) provision of services (assistance) and
(5) reduction of justice system cost". Other analysts have added or
elaborated, pointing to the objectives of reversing the uneven imposition
of serious sanctions onto those who are already socially disadvantaged,
avoidance of the harsh and criminogenic impacts of prison in particular,
informing and providing a range of alternatives for decision-makers to
choose from, providing a "more satisfying justice" for victims and
communities, and dealing with the social, economic and personal factors
associated with crime, in preference to the often punitively-oriented
alternative.
These are ambitious goals, and Palmer noted that they were not
necessarily congruent. Decker (1985:208) suggested that because of the
existence of "multiple goals, ineffective ranking of priorities, and
competing objectives, many diversion programs are likely to produce
outcomes at variance with their ideal".
These issues will appear repeatedly in the studies surveyed in this
review. Competing objectives are commonly cited as a key problem. For
example, the goal of providing assistance to accused may be in direct
opposition to the goal of reducing system costs and labelling. The need
to set priorities among various goals also appears frequently in the
literature in discussions of "net-widening". For example, the desire
among diversion and criminal justice staff to see offenders placed in
programs which may assist them to stay out of trouble in the future may
conflict with the goal of reducing the catchment of social control and
intervention "nets".
It is also worth stating that, in the years following the initial
enthusiasm for diversion as envisaged by Palmer, many jurisdictions saw a
distinct change in the dimensions of the "alternatives" debate. In the
late 1960s and early 1970s, there had even been an active controversy as
to the relative merits of "true diversion" (screening out, without
further consequences) versus "conditional diversion" (to a program
different from traditional processing). By contrast, the late 1970s
ushered in a return to a conservative arc of the endless criminal justice
cycles of liberal and conservative reform. In the latter period, the
central questions became more ones of whether existing justice system
elements should be tightened and toughened, rather than whether they
should be avoided by large numbers of delinquents and adult offenders.
Thus, the "alternatives" debate in the U.S. in particular is now about
intensive probation, "shock incarceration", electronic surveillance,
probation supplemented by day reporting centres with daily drug testing
of offenders, and parole release to "home arrest". These "intermediate
punishments" and other reforms have virtually monopolized the American
"community corrections" scene, to the extent that there is less research
being conducted on diversion and programmatic alternatives now than
twenty years ago.
Evaluation of
Adult Diversion
Two decades ago, as enthusiasm for diversion was at its peak in North
America and elsewhere, early reviews of the research and evaluation
literature routinely lamented the paucity of controlled research in the
area. A typical lament is offered by Mullen (1975:1): "Regrettably,
enthusiasm for diversion has grown with surprisingly little validated
support from the evaluation literature. Thus, [a review of the evaluation
literature on diversion] is largely a commentary on the unknown."
Despite the intervening years, the above statement is as true today as it
was when originally written. There are still only a handful of rigourous,
comprehensive evaluations in the field of adult (or even juvenile)
diversion which address the key questions of interest to policy-makers
and program specialists. In part, this is due to the rapid decline in the
number of controlled diversion projects begun after the mid-1970s and the
increased funding and attention to programs aimed at greater control of
offenders.
Most "evaluations" are merely descriptions of the process and the flow of
cases through the program. These kinds of studies do not allow us to
assess many of the key questions in diversion because they do not have a
control group or some other method for comparing what happened in
the diversion program with what would have happened without it.
Thus, for example, they cannot address one of the most important
questions in diversion, which is: would the offender who is "diverted"
actually have faced, in the more usual course of business, an outcome
which was much different? Or to take another example, the recidivism rate
of the diverted offenders looks impressive (or does not), but would a
comparable group of offenders who proceeded through the more usual course
of business have done any worse (or any better)?
Some evaluations describe several different diversion/treatment
modalities and compare their success rates to one another, but also fail
to address the questions which are central to the diversion conundrum
because they do not discuss the dispositions and outcomes of comparable
cases passing through the traditional justice system.
Other evaluations address the "key questions in diversion" but fail to
describe the diversion program itself in sufficient detail to give us a
picture of what really occurred in the program. Since some studies show
that a large proportion of offenders placed in treatment programs
actually receive little or no treatment of the type intended, it is
important to examine this aspect as well, in order to draw inferences
about whether, on the one hand, the treatment was delivered as intended
but failed to "make a difference", or, on the other hand, no difference
was found because the program did not deliver the treatment. Diversion
studies which measure the actual delivery of treatment are rare. Studies
which show the "intermediate" effects of the treatment - did the
offenders improve their cognitive skills, did they get a job during the
program - are even more rare.
Many evaluations follow only those offenders who successfully completed
the diversion program. While this is useful information, it is also
important to know how many of the offenders accepted into the program
actually completed it - if it was 98%, our conclusions about the program
will be different from our conclusions if it was 15%. A similar
deficiency in many evaluations is in giving an imperfect understanding of
the proportion of the total criminal caseload and the eligible caseload
who were accepted by the program, and the reasons why some were rejected.
There are a number of reasons for the paucity of good evaluative
research. Sound evaluation requires expertise and care in the creation of
methods for comparing the results of the experiment to what would have
occurred had the experimental process not been in place. This kind of
expertise (and the time to exercise it) is rarely available to program
administrators and workers. The use of external evaluators can be
expensive. Then again, for program personnel, the key interest is in
getting the job done and making the service available to as many clients
as the workload can handle; withholding services from some potential
clients in order to form a "control group" for research is the furthest
thing from their mission.
However, the important questions about diversion which policy-makers must
answer include the following:
-
would diverted clients likely to receive a significant sanction (such
as imprisonment) if they had proceeded through the normal course of the
justice system, or might they have received a minor intervention, or
even not been prosecuted?
-
what proportion of the total criminal cases in the jurisdiction were,
or feasibly could be, diverted to the alternative, and are they more
than just minor cases?
-
were the diverted clients assisted by the services (if any) provided to
them?
-
following the diversionary outcome, did the diverted cases fare better,
worse, or about the same as comparable cases which proceeded through
the more usual processing of the justice system?
-
what savings are produced, if any, to the justice system and the public
purse through the operation of the diversion initiative?
These five key questions are central to any comprehensive understanding
of whether any given initiative will fulfill the objectives of diversion.
Much has been said about whether "alternatives" in justice are being held
to a higher standard than the more routine actions of the traditional
justice system. To some extent, this concern is justified. If an
alternative program produces outcomes which are at least as good as (or
no worse than) those produced by the more usual route, alternative
program administrators may still find themselves in a constant struggle
to justify and maintain their funding, especially if they are seen by the
formal criminal justice system as an adjunct, an "add-on", or a
short-term experiment. Nonetheless, this concern does not relieve
policy-makers and researchers of the burden of asking probing questions
about the real impact of the alternative.
Although this report focusses on evaluative studies, the rarity of sound
evaluations in the adult diversion area required some consideration of
studies in the juvenile area, to the extent that they were relevant.
Other interesting ideas which have not yet been subject to rigourous
analysis were also referenced. Thus, a certain amount of speculation
about other ideas which might be tried or expanded in Canada is included.
The discussion which follows is organized according to the stage in the
criminal justice system at which the programs occurred. This is certainly
not the only possible way to organize the material. Depending on the
audience, it could have been organized according to the type of
"programmatic" intervention offered, according to the issues,
chronologically in an attempt to trace the development of thought and
programming in the area, according to the type of research design, or in
any number of other ways. The method chosen was intended to reflect the
varying system constraints which pertain to the different stages of the
justice system, and the orientation towards a particular stage which
characterizes the work experience of so many justice system officials.
PART II. Pre-Charge
Diversion
Although police diversion is usually not "programmatic", and formal
police diversion often targets juveniles in preference to adults, police
diversion is worth noting because it serves to introduce some of the key
issues in the diversion field generally. Much of the discussion which
follows is based on studies of police diversion of juveniles and what can
be learned from these studies.
Diversion by police is, of course, a daily occurrence, possibly even in
countries like Germany where police are mandated to investigate and
report in writing to prosecutors on all penal code violations. However,
some studies suggest that attempts to encourage police diversion and make
it more formal have the unintended effect of increasing the number of
offenders who come to the official attention of the justice system and
creating a permanent record of their contacts.
An article entitled, "Police diversion: an illusion?" by Dunford (1977),
although focussed on juvenile diversion, is useful for its cautionary
lessons, and is echoed in his later evaluation of two programs for police
diversion of juveniles to "programmatic" alternatives (Dunford et
al., 1982). Dunford suggests that there are several reasons to
exercise care in considering police diversion of juveniles to programs
intended to assist them. First, youth who would otherwise have been
simply screened out by police are placed in programs because police are
of the view that they are in need of corrective treatment. This in itself
may or may not be undesirable, but Dunford also suggests that many
"diverted" youth receive no services at all, despite the intention to
deliver service, and others receive so little, or receive service which
is so irrelevant to their needs that no useful purpose is served. Many
youth service agencies are under such pressure to be cost-efficient that
they will accept large numbers of clients even though they are
under-resourced to serve even a minority of them. The service which they
could provide theoretically to youth who really need it thus becomes
diluted by the sheer numbers accepted.
Diverted youth, Dunford finds, are subject to more record-keeping than
they would have been if screened out. They are breached for non-criminal
violations of program conditions and actually are subject to detention
more than their counterparts in the traditional justice system. Dunford
suggests that the principal distinction between youth diversion and
traditional processing is the relative differences in due process
safeguards. Finally, his random-assignment evaluation (1982) found no
significant differences in rearrests between youth who were diverted with
services, those diverted without services ("lectured and released"), and
those processed through the justice system. Self-reported recidivism
showed the same pattern. This study actually evaluated four very
different juvenile diversion programs, offering a range of services aimed
variously at case advocacy, crisis intervention, referral to and
brokerage with a number of different service agencies, and direct
counselling.
Lerman (1975: 6-7), in a study of youth diversion programs in California,
also questions their impact on decarceration:
An examination of social costs and benefits indicates that community
treatment can also include an appreciable amount of deprivation of
liberty. A detailed presentation of the evidence ... discloses that
offenders placed in the CTP [Community Treatment Project] experimental
group experienced more detention stays than those youth placed in the
regular CYA [California Youth Authority] parole program (control
group). CTP parole agents were much more likely to bring their wards
physically to a lock-up facility for reasons that did not pertain to
renewed delinquency. The reasons given included violations of treatment
expectations, accommodation to community complaints, administrative
convenience, diagnostic purposes, and the prediction and prevention of
"acting out" behavior. The broad scope of reasons, the loose procedures
for initiating a lock-up, the failure to distinguish between serious
and non-serious deviance, and other practices produced an array of
discretionary decisions that appear to be arbitrary and unfair.
Ditchfield (1976) studied police cautioning of criminal offenders in
England and Wales. Used principally for juveniles, "formal" police
cautioning was officially encouraged in the 1969 Children and Young
Persons Act. Regarded as an alternative to prosecution, formal police
cautioning almost invariably takes the form of an oral warning by a
senior uniformed police officer. It is to be used only where the offender
admits his guilt, police believe they have a provable case, and the
complainant does not insist on a prosecution.
This practice has been tracked in official statistics since 1954. Using
time series data for all of England and Wales, Ditchfield found that from
1969 to 1974, the use of cautioning doubled in absolute numbers and
significantly increased as a proportion of total outcomes of
police-juvenile encounters (i.e., as opposed to going to court). However,
the numbers of juveniles found guilty in court remained virtually
unchanged despite the "undoubted increase in juvenile crime" during the
period. Ditchfield concluded that the use of cautions has therefore been
at least partly diversionary.
However, because of the increased formality of the procedure and the more
systematic police procedures for dealing with juvenile offenders,
Ditchfield (1976) suggested that the increase in cautioning may have had
an "inflationary" impact on the recorded numbers of known offenders.
Shopkeepers and social service agencies, knowing that cautions were being
encouraged, may have been more willing to call police where previously
they might not have. Furthermore, police may have used the formal caution
where previously only an informal warning or other NFA ("no further
action") would have been taken. Those areas in the country where
cautioning was used most also recorded the largest increases in the
numbers of "known offenders".
For adults, Ditchfield found that the formal caution was used mostly for
shoplifting and other minor theft. He also found an inverse relationship
between cautioning rates and court rates of discharge of adult offenders
found guilty. In other words, the outcome for minor adult cases may
simply, as a result of the active use of cautioning, be decided at an
earlier stage. However, Ditchfield questioned whether police cautioning
was cheaper than discharge. In urban areas, courts are nearby and
cautioning can actually take more police time than a court appearance
where a non-salaried magistrate is the adjudicator. In addition, fines
paid in magistrates' courts partially offset the costs to the justice
system.
Sanders (1988), wrote a later and very critical review of police
cautioning of both juveniles and adults in England and Wales. "Informal"
cautioning at the police station, endorsed in Home Office guidelines in
1985, creates a permanent police record which is available to the
prosecution, although informal cautions are not part of the annual
cautioning statistics. A formal caution, invoked at a higher level of
police authority, can be cited by the prosecution in later court
appearances, and a formal caution is more likely than an unofficial
warning to be followed by a second formal caution. While in and of
itself, this might not be a matter for concern, Sanders suggested that
there are difficulties with the way in which police use cautions.
From his reading of cautioning reports and conversations with police and
Crown officials, Sanders (1988) suspects that net-widening is a reality,
since cautioning is an alternative not just to prosecution, but to NFA
(taking "no further action"). Police sometimes use cautioning where the
evidence in the case is weak and the accused may be willing to accept a
caution in order to end the incident. Sanders also found wide and
unjustified disparity in the use of cautioning within and between
offences and police forces. The interests and needs of victims, he
suggests, are rarely taken into account. It may be that prosecution would
serve victims better by, for example, opening up the possibilities of
restitution. Since cautioning does not lead to referrals for service in
this system, moreover, help which the accused may need is not arranged.
Pre-charge Diversion:
Discussion
What can be inferred from this brief review of a few studies of police
diversion? First, there is reason to believe that formalizing the use of
police discretion to divert may in fact increase "labelling" and widen
the net, creating a formal record which would not otherwise exist, and
which will follow the offender, possibly affecting future dispositions in
ways which are unintended. This is not to say that this effect is
necessarily undesirable if the intent is to enhance police information
about offenders. However, if the intent is to bring about "true
diversion", the effect may be counter-productive.
Second, diversion without "programmatic" or other consequences may fail
to serve what Sanders (1988:528) refers to as the "expressive" and
"utilitarian" aims of prosecution, including denunciation of offences and
reconciliation with victims. This view proceeds from a set of assumptions
which are the reverse of the view that penetration into the justice
system tends to be destructive. Sanders' view rejects that premise as
unproven at best, and goes back to questions around the fundamental aims
of the law. Of course, no single theoretical view can encompass all the
variants of offences and offenders which present themselves. For example,
Sherman and Berk (1984) found, in a study which subsequent researchers
have had difficulty replicating (Garner, Fagan & Maxwell 1995), that
domestic assault offenders had a lower repeat-incidence rate when they
received counselling (19%) than when they were separated from their
victims (24%), but formal arrest was even more effective (10%).
Third, there is little evidence from the juvenile literature that police
diversion to "progammatic" alternatives has had the intended impact of
effectively diagnosing and serving the needs of youth. For various
reasons, including staff selection and training, caseloads, funding
restrictions, and other difficulties in delivering effective treatment
programs, the hoped-for impacts have not materialized (see, e.g.,
Dunford, 1982). In fact, the detection of recidivism may be enhanced by
increased contact with program staff, violations of the conditions of
diversion may lead to higher rates of detention, and the failure to live
up to program expectations may increase the offender's chances of
receiving a stiff penalty if returned for processing in the justice
system.
Diversion of the Mentally
Ill from Justice Processing
Although no rigourous evaluations were found of programs for diverting
the mentally ill from pretrial detention and later justice processing,
some process descriptions serve to shed light on the more effective
approaches.
There is no question of the importance of diverting mentally disordered
persons from the justice system. Questions of diminished criminal
responsibility aside, the justice system is ill-equipped to deal
effectively with such persons, including problems of treatment, safety,
and control which they present in the correctional population. Their
diversion into settings where their needs can be better met and the risks
which they present to themselves and others can be better contained is
therefore considered generally desirable by jail administrators and other
justice system officials. Unfortunately, with the deinstitutionalization
of much of the mental health system, mentally disordered persons have
increasingly found themselves in the justice system. Estimates of the
percentages of seriously mentally disordered persons in local jail
systems at any given time vary markedly, from three percent to 16
percent. Early identification of mental disorders in arrested persons and
appropriate action are critical to an integrated response to these
situations.
Steadman et al. (1995) paid field visits to 12 jail diversion
programs rated as highly effective and six rated not highly effective by
the local jail administrator, the mental health system official closest
to the program, and the program director. Based on their observations,
six characteristics were found present in all the effective programs.
First, there was close communication and cooperation among the mental
health system, justice system and social service system at the local
level; formal interagency agreements were considered "essential" by half
the program directors. One noteworthy program used an interdisciplinary
team of 10 members who work intensively with up to 100 forensic clients
at a time. Also involved closely in the workings of the program were
representatives of the judiciary, the public defender's office,
prosecutors, probation, and the jail services supervisor.
Second, there must be regular meetings of representatives of the three
systems, both at the service delivery level and at the
policy/administration level. Third, it is helpful to have a designated
person who is responsible for liaison among the three systems; this
person is the "glue" that holds the various program components together.
Fourth, there must be strong leadership which eventually turns informal
cooperative relationships into institutionalized ways of working
together. Fifth, jail inmates must be assessed early in the process - an
initial medical assessment within 24 hours and a more in-depth mental
health screening within 48 hours were recommended. Sixth, there must be
active case management at all stages including intake, linkages with
needed services, information and advice to the courts, monitoring of
service delivery, client advocacy and direct service provision. The
researchers found (1995: 1634) that very few of the programs which paid
careful attention to linkages with community-based services "had any
mechanism to ensure that the initial linkage was maintained". They
suggest that this is a final characteristic of long-term effectiveness.
McDonald and Teitelbaum (1994) assessed a privately run day treatment
program in Milwaukee which had many of these characteristics. Offenders
were ordered into the program as a condition of pre-trial release,
probation, or some other court order. The average client was a man with
two prior arrests, a diagnosed major mental illness, and an average of 75
days in a psychiatric facility in the previous two years. Priority was
given to "referrals that represent a genuine alternative to
incarceration". The program offered a range of services, including
required daily attendance, the provision of medications, individual
psychotherapy and group therapy, and assistance with housing, money
management and health and social assistance.
Some indirect measures were found of the program's success at diverting
some of the estimated 1000 mentally ill arrestees annually (the program
has the capacity to serve about 250 clients at any given time, and the
average stay in the program was 18 months). During 1992, the program
accepted 67 clients; 30 others were referred to other community-based
support programs, and 40 others "remained in custody through the end of
the year and therefore were not eligible for admission to the program"
(1994:5), apparently because of the program's capacity limits. Another
indication of the catchment of this program was in the discharge status
of the 84 persons who left the program in 1992. Of these, 57% performed
successfully in the program until the end of their legal obligation
(three-fifths of these declined the offer of a referral to another, less
structured program afterwards), 18% were jailed for a new offence or a
violation of the terms of their court order, 14% were transferred to a
residential treatment facility, and 11% died, disappeared or moved to
another state.
An unattributed article entitled "Diverting the Mentally Ill from a
County Jail" (1987) describes the Alternative Community Treatment Program
(ACT) in Orange County, California. This program also had a close
collaborative relationship with the justice, mental health and social
service systems, and "active case management". It attempted to divert
from county jails inmates with three or more incarcerations for "minor
law violations" within the previous 12 months, a primary diagnosis of a
major mental disorder, and a substantiated history of chronic dysfunction
due to the mental disorder. During 1984/85, 58 inmates were served by the
program, for an estimated net reduction of 989 jail days (how the
estimate was obtained was not detailed). Dispositions included 22
referrals to inpatient facilities, 23 to outpatient mental health, one to
a halfway house, one to a drug abuse service, and four to temporary
shelters.
These studies tend to suggest that it is possible to divert from pretrial
detention seriously mentally disordered persons and place them in more
appropriate settings, although how long some of them will remain out of
jail is an open question. Effective strategies involve close working
relationships between mental health, social service and justice
administrators, processes for early identification of mentally disordered
offenders, active case management and long-term follow-through on service
delivery to meet offenders' needs.
PART III. Deferred
Prosecution
More evaluative research work has been done in the area of deferred
prosecution than in any other diversion area. Doubtless this is because
of the hopes placed on the viability of diversion at this stage, and the
relatively visible and structured processes which attend this stage. A
typical deferred prosecution would involve an agreement between the
prosecutor and the defendant, post-charge, to suspend proceedings for a
period of time during which some kind of intervention with the accused
occurs. Following successful completion of this program or process, the
case is referred back to the prosecution and a decision made as to
dismissal or withdrawal of the charges. The key benefit to the accused is
the avoidance of a criminal conviction.
Among the key questions for policy-makers in assessing the operation and
impact of deferred prosecution processes are:
-
how are cases screened for potential
deferred prosecution? In particular, what kinds of offences are
involved and what kinds of risks do the accused present?
-
what would have been the likely outcome of
the case had prosecution not been deferred?
-
what proportion of accused choose not to
accept the alternative, and why?
-
what proportion of the total criminal
caseload are ultimately streamed into the alternative?
-
what kinds of assistance or other
intervention are the accused given, and to what extent do they
benefit from it?
-
what proportion of deferred cases succeed
within the program, and for what reasons do accused "fail"?
-
what is the impact on cases which succeed
or fail, in terms of case dismissal and judicial outcome?
-
are successfully deferred cases more or
less likely to recidivate than in-program failures or cases which
proceed directly to court?
-
what is the cost of operating the alternative, and what are the savings
to the justice system?
Answers to these key questions will determine whether the process for
deferred prosecution will make a real difference to offenders, victims
and the justice system, and to the kinds of differences experienced.
What kinds of adult cases are screened for deferred prosecution?
A number of studies have described the types of adult cases selected for
deferred prosecution. In the main, these findings confirm data from the
juvenile field: it is the less serious and less "risky" cases which tend
to be selected for this alternative. This includes a considerable
proportion of cases which would not have been fully prosecuted if the
diversion program had not existed.
Pretrial diversion (PTD) programs largely began in the juvenile justice
system, and many programs continue to serve juveniles exclusively. Adult
pretrial programs arose out of the experience initially gained through
work with juveniles. To this day, the criteria governing many formal
pretrial programs exclude from eligibility repeat (or persistent)
offenders, addicts and alcoholics, offences against the person, and
serious felonies. Most such programs, however, tend to make exceptions to
these exclusions on a case-by-case basis.
A majority of persons selected for diversion tend to be accused of theft
(shoplifting is an especially common offence) or drug possession. They
also tend to be first- or second-time offenders. Many, however, have
significant life problems which can affect their likelihood of criminal
activity including low educational levels, a history of unemployment or
underemployment, poor social adjustment and the like. Given the problems
exhibited by these potential clients, it is not surprising that many
prosecutors and diversion staff adopt the view that affording them the
help which is supposedly available through the program is preferable not
just to prosecution, but also to taking no action whatever. Especially
where potential clients are young and not criminally experienced,
moreover, workers understandably believe that it is these persons for
whom an intervention now could make a significant preventive difference.
Whatever the reasons, evaluations of pretrial diversion have tended to
identify a large proportion of diverted cases which would not have
received a significant sentence, or would not even have been prosecuted.
This conclusion is reached through research designs which identify (or
attempt to identify) a "matched" comparison group or, more rarely,
designs which identify a group of cases accepted for diversion and then
randomly assigned to diversion or to the traditional prosecutorial
process.
Austin (1980), in an evaluation of a pretrial diversion program in San
Pablo, California which "closely resembled probation" (plus community
service for 22% of participants), found that 90% of diverted clients had
their charges ultimately dismissed and 3% received some jail time. This
compared favourably to a randomly selected control sample of accepted
cases, of whom 7% were dismissed, 21% were jailed (for an average of 14
days), 28% were fined, and 10% were given probation for an average term
of 12 months.
Few other evaluations have reported such dramatic differences in
dismissal rates, although the differences are significant for some. Pryor
et al. (1977), in a well-controlled study, used four control
groups for their evaluation of a project in Rochester, New York. This
program was aimed at educational upgrading and employment for defendants.
The first control group was individually matched to the experimentals,
and virtually identical in key respects. The second group had been
accepted into the project but rejected by prosecutors. The third control
was judged by program staff to be "not in need of service", and the
fourth was individually matched to the "not in need" group. Among the
experimentals (those favourably terminated and those unfavourably
terminated, taken together), there was a 79% dismissal rate; this
compared to rates of 36%, 32%, 46% and 41% respectively for the control
groups. The difference for the third control group, those assessed by
program staff as "not in need of service", was particularly interesting
inasmuch as this group received no service, but did receive a positive
recommendation to the court.
Many pretrial diversion programs are globally referred to as "court
employment programs" (CEPs) because they concentrate on finding work for
the accused. One such CEP, the Manhattan Court Employment Project (Vera
Institute, 1972), was a pretrial program for unemployed and underemployed
offenders between 16 and 60 who had never served more than a year in a
penal institution and who were considered unlikely to be sent to jail on
the current offence. Once accepted, clients were given assistance with
vocational testing, counselling, education, training, job placement and
emergency loans. Zimring (1974), in a re-analysis of the data using his
own control group (which was not completely comparable), found 52% of
defendants who were accepted into the program ultimately completed the
program successfully and had their cases dismissed. A virtually identical
proportion (51%) of the matched comparison group had their charges
ultimately dismissed, not pursued, or the defendant was acquitted. Only
seven percent of the comparison group was given a jail term.
Similar results were seen in the comparable Project Crossroads (reported
in Rovner-Pieczenik, 1974). In this evaluation, 54% of the comparison
group were not convicted and only six percent were ultimately jailed.
However, defendants who entered the program were considerably more likely
(85%) to complete it successfully and have their case dismissed.
Likewise, case outcomes for the comparison group in an evaluation of the
New Haven Pretrial Diversion CEP program (as reported in
Rovner-Pieczenik, 1974) suggested that 30% of the program intake would
not have been convicted, and none would have been jailed. However, 73% of
those who were admitted to the program received a dismissal.
Difficulties with evaluative designs may actually under-represent the
problem. That is, comparison groups which are matched by researchers on
age, offence, prior record, and other relevant dimensions are unable to
control for the less tangible factors which may affect both admission
into the alternative program and downstream justice decisions, as well as
recidivism. Thus, diversion program staff usually apply a set of
additional screening criteria which will not be reflected in a
retrospective attempt to construct a control sample based on variables
found in paper files. Additional screening criteria can include anything
from apparent enthusiasm for the program to drug usage. As will be seen
later, the proportions of cases excluded by program staff, prosecutors
and others is often quite sizable. Especially where the alternative
program is seen as a benefit to potentially deserving clients, there is a
natural tendency for program staff to select the most promising clients
according to a wide variety of factors.
Nonetheless, a number of evaluations suggest that deferred prosecution
programs do confer a benefit on some participants, in that they increase
the likelihood of case dismissal. However, the few available studies
suggest that perhaps a third to one-half of participants would have had
their charges dismissed anyway during the normal course of business.
There is no question that, to the extent that these persons undergo
sometimes extensive intervention programs, they are subject to what
Austin and Krisberg (1981) call "wider, stronger and different nets". As
Hillsman (1982:381) says,
The diversion literature tends to evoke an image of criminal courts
that prosecute and convict most cases brought before them, even the
less serious ones. Yet the pictures drawn of these courts from a
variety of empirical sources ... undermine this image. ... [M]ost
jurisdictions (particularly lower courts where diversion is most
common) dispose of many cases with discharges, relatively small fines
or other relatively lenient outcomes even when they are not dismissed
outright. ... Diversion tends to occur in contexts where some
proportion of cases (and perhaps a fairly large one) is already
screened out or disposed of with some degree of leniency.
What proportion of accused choose not to accept the alternative, and why?
Some studies have examined diversion clients who were accepted into a
deferred prosecution alternative, but who did not participate, choosing
instead to go to court. The proportions of clients who meet the criteria
for diversion but refuse it can be substantial. In one CEP,
Baker-Hillsman and Sadd (1980) found that fully a third of the defendants
chose not to accept the alternative. This program has been operating in
one form or another for many years, and an earlier review (Zimring, 1974)
suggested that the defendant refusal rate might be closer to 14%. Perhaps
the thirty-year history of the program had caused defendants in that
jurisdiction to understand the comparative advantages of diversion better
than they did in the beginning.
In Dade County, Rovner-Pieczenik (1974) reported that 48% of candidates
refused to participate, although this figure was no doubt inflated by the
fact that defendants were invited to participate by mail. A quarter of
Operation Midway's screened-in cases declined to participate (Miller,
reported in Zimring, 1974), similar to the "no-show" rate observed by
Austin (1980). Goetz (1978), in a review of the early stages of an adult
diversion program in Nanaimo, British Columbia found that only 4% of
defendants rejected the alternative, mostly it would appear on advice of
counsel that they could do better taking their chances in court.
In many cases, it would appear that the reasons for nonparticipation can
be traced to the relatively intrusive nature or lengthy duration of the
alternative, as opposed to the accused's perceived outcome in court.
Diversion programs typically are designed to run from three to six
months, or up to a year for completion of conditions like restitution or
community service. Austin (1980) found that the control group's
court-mandated outcomes were lenient, both on an absolute level and when
compared with the degree of constraint imposed on the participants in the
diversion program. The diversion regime was briefer, however, than the
probation sentences given to controls. Similar conclusions were reached
by Nimmer (1982), as quoted in Hillsman (1982), and much of the juvenile
diversion literature, Bohnstedt (1978), for example, in a review of
juvenile diversion programs, found that diversion meant more contact in
at least half the cases.
What proportion of the total criminal caseload are
ultimately streamed into the alternative?
Some evaluations have attempted to estimate the percentage of all cases
which were diverted by the deferred prosecution alternative. Roesch and
Corrado (1983: 388) suggest that most diversion projects affect only one
or two percent of the "total criminal court case load", largely perhaps
because of the "limits on the number of defendants that could be served
at a given time". Baker-Hillsman and Sadd (1981), in an assessment of a
CEP in New York, suggest that two percent of eligible defendants were
affected. An earlier stage of the same project found that 1.2% of all
arraigned felony and misdemeanor cases were diverted (Zimring, 1974). New
Haven affected 2% of the total criminal caseload in the court. Austin's
(1980) study of San Pablo proves the exception; he estimated that 17% of
arrests and 25% of charges were diverted to the program. The reasons for
this difference were not clear.
Some programs screen out a majority of the cases initially referred to
them. Austin's (1980) study and Zimring's (1974) review of Vera's CEP
found rates of screening-out by diversion and/or criminal justice staff
of 81% and 85%, respectively. Austin found screening-out decisions to be
based on a loosely-conceived collective notion and perceptions of moral
character, motivation to change, and criminal intent. Pryor et al.
(1977) found a staff screening-out rate of 40%, based mainly on "lack of
motivation" among rejected defendants.
It would appear that the limited coverage of most diversion programs is
actually a function of at least three factors: the limits on the time and
budgets of assigned personnel (including limits on the services which are
available to assist accused persons who are diverted); limits on their
own and justice system officials' willingness to accept cases which seem
"less deserving"; and the perception of some defendants that they could
"do better" in court.
What kinds of assistance or other intervention are accused persons given,
and to what extent do they benefit from it?
Some evaluations have attempted to assess the extent to which diversion
clients have profited from the programs, quite apart from the question
(addressed below) of whether recidivism rates were affected by program
participation.
Most well-evaluated programs have shown modest, if any, lasting benefits
to clients from the diversion services offered them. Most programs have
not even attempted to measure "lasting benefits", contenting themselves
instead with measuring effects at program termination (which may only be
three to six months after initial client contact). This kind of
assessment is not only time-limited, but particularly vulnerable to
"regression towards the mean", a statistical phenomenon which, for
example, would tend to show artificially higher rates of improvement for
defendants who, at the time of arrest, were probably at a very low ebb in
their personal lives. These defendants have "nowhere to go but up".
In a macro-analysis of the results from all nine "second-round" CEP
projects funded by the U.S. Department of Labor, Abt Associates (1974)
compared the pre-program and post-program employment situation of
"favourables" - those clients who succeeded in the diversion program. (Of
course, this tells little about how the diverted clients as a whole fared
after the program, since some failed to complete the program because of
recidivism during the program or for failure to cooperate in the
program.) While 33% of the "favourables" were employed at intake, 58%
were employed at program termination. During the year prior to program
intake, according to clients' accounts, "favourables" were employed 45%
of the year, and in the year following program termination, the same
group were employed 60% of the time. There was also an average 30-cent
wage increase for "favourables" over the two-plus-year period. These
differences were statistically significant, but it can be argued they
could be explained on the grounds of "regression towards the mean" as
well as maturation - these predominantly young males may have matured
during the two-plus years covered by the research period. In addition,
Rovner-Pieczenik (1974) suggests that the job market and minimum wage in
many areas improved during the research period, which could also account
for the differences observed.
Other studies have reported similar results for programs aimed at
vocational and educational upgrading. Crossroads, a project in
Washington, D.C., reported 44% employment at intake and 70% employment at
termination for all participants (favourables and unfavourables); New
Haven reported 38% employment at intake and 68% employment at termination
for all participants. Vera's Manhattan Court Employment Project reported
31% employment at intake for the entire group of participants, and 79%
employment at termination for program-favourables only. However, a later
controlled study (Baker-Hillsman and Sadd, 1981) of the Vera CEP in
Manhattan and Brooklyn showed no differences between experimental and
control groups in employment rates or earned income after four and twelve
months. Defendants were mostly provided with low-paying, menial jobs.
There was no impact reported on vocational or educational status for
defendants who were not working.
In a study summarized by Galvin et al. (1977b) of Vera Wildcat, a
program of six to 24 months of subsidized work for "deep end" repeat
offenders with a history of hard drug use, a 40% employment rate two
years after program departure was reported. In addition, there was little
return to hard drug use (although the program made no direct efforts to
work on offenders' drug involvement). By contrast, a British study
(Pointing, 1986) of a program of three months' supported work for
probationers with a "poor or non-existent" work history but no history of
hard drug usage, showed no impact on later work.
Some studies found, based on psychological testing, that participants'
self-esteem, self-confidence and self-control increased during the period
of the program. In general, however, few evaluations report on the
delivery, quality and intermediate results of the services offered in
much detail.
What proportion of cases succeed within the program,
and what proportion are unfavourably terminated?
Wide variation in rates of unfavourable termination from the programs
were found: from 9% to 52% in the evaluations which made this clear (and
many do not). These differences do not appear to be particularly
explainable from the profiles of the offenders entering them. The
exception is Austin's (1980) less serious and more pro-social offenders,
of whom only 9% were unfavourably terminated. Rather, terminations
appeared to be related more to the degree to which defendants were
required to fulfill specific and regular obligations: those who were
required to attend training daily had more opportunities to "fail" than
those who were under a regime which more closely resembled regular
probation, for example.
However, a number of studies (Abt Associates, 1974; Mullen, 1975) have
called for less unstructured discretion in the exercise of the
termination decision, pointing to the prevalence of reasons linked to
"motivation" in termination records. "Motivation", of course, may be a
convenient short-hand for a host of perceived behavioural defects in
performance.
Are successfully diverted cases more or less likely to
recidivate?
Less is known about this question, perhaps, than any other, because of
the difficulties of constructing control groups which are truly
comparable. A majority of the evaluations in the area which have used
techniques for controlling or comparing findings to the diverted group
have, in fact, been criticized for weaknesses in methodology (see, e.g.,
Hillsman, 1982).
The soundest study found in the literature is Pryor et al.'s
(1977) review of a three-month program aimed primarily at employment and
educational upgrading. They found that 24% of the PTD clients were
rearrested after one year (19% of the program favourables and 44% of the
unfavourables). This compared to 37% of the individually matched
controls, 35% of the cases accepted by the program staff but screened out
by prosecutors, 9% of the cases judged "not in need of service", and 19%
of their matches. Of course, one year is not an ideal follow-up period;
these differences in treatment outcomes could shrink or disappear after
two or three years. Interestingly, staff were apparently accurate in
their judgments about cases who were not "in need of service": these
cases performed best of all. No explanation is offered for the recidivism
differences between them, however, and their individually matched
controls.
Austin (1980) found no statistically significant differences in
recidivism between the experimentals, who were sent to a probation-like
program, and randomly selected controls. No other studies were found in
which much, if any, confidence can be placed in the comparison.
Baker-Hillsman and Sadd (1981) found no differences between their
experimentals and controls in the likelihood of rearrest, the number of
new arrests, or the severity of the new offence after four months and
after twelve months.
What is the cost of operating the diversion program, and
what are the savings to the justice system?
A very wide variance was found among the reported per-client cost for the
programs, from a low of $370 to a high of $1020. Some studies report
costs per successful client only; in others, it is not clear what forms
the client base for the calculation. Other studies report total cost
figures for the program only. Many studies suggest a comparison between
the cost of the diversion program and the cost of imprisoning its clients
(usually employing the average cost, not the marginal cost, of
incarceration). One study suggested that the relevant comparison is
between the cost of the program and the value of the wages earned by its
employed clients! Probably the best simple cost comparison is by Austin
(1980), who compared the per-client cost for diverted offenders to the
per-client cost for a control group, finding that diversion cost twice as
much.
Of course, costing is not simple when one considers all the
possible factors which could be taken into account. These factors include
offences theoretically prevented by treatment (or by being taken off the
street and imprisoned), medical costs to victims, taxes paid by offenders
who are put to work, relative numbers of court appearances (often found
not to be much different for diverted offenders as compared to controls),
and so on. In addition, there is no general agreement as to how to deal,
in such costing, with certain fixed costs, such as administration.
For all the studies found, however, the
bottom line (where it was addressed) was that no savings to the
justice system were observed from the diversion program, if by
"savings" is meant that probation officers or other officials were
released because of reduced workload, courts were closed, or jails
relieved of overcrowding. No other result can reasonably be expected
from the fact that most programs reach only two or three percent of
the cases in the jurisdiction.
Rather, the budget of the diversion program
was an additional cost, albeit one which may have benefits. Touche
Ross (1976), in fact, found that costs to probation more than
doubled after the introduction of a program to divert drug offenders
from trial to treatment. This was largely a result of probation
officers' having to conduct extra work in investigations, referrals,
monitoring and special counselling programs.
Invoking the Process: An Add-on or a Mandatory
Step?
One of the process issues which will
dramatically affect the numbers of accused considered for deferred
prosecution is the manner in which potential cases are invoked. Some
pretrial diversion programs are operated as part of the offices of
the prosecution, the courts, or probation. Great variety exists
concerning how the screening process is invoked. It may be
automatically triggered by virtue of certain case characteristics,
or it may be instituted at the discretion of a given prosecutor,
diversion staff member, or other functionary.
Other programs, however, are operated as an
"add-on"; they are not part of a prosecutorial office and do not
operate as a routine consideration by prosecutors and other justice
officials. A large number of the programs which have been evaluated
are, or began as, initiatives by private organizations which have
had to establish their credibility with mainstream justice
officials. Following this initial period, the screening process may
continue to operate as an adjunct to prosecutorial decisions around
proceeding on the charge. The result is that there may be a less
than perfect collaboration between prosecutors and those who screen
cases for possible deferred prosecution. This will affect the
success of the initiative, but some commentators (e.g., McDonald,
1986) suggest that private programs, working from intake referred to
them by the defence bar, will have the greatest impact on court
caseloads and on marginal cases.
Hillsman (1982:376) in fact suggests that
prosecutors may, in many instances, operate from entirely different
perspectives from those which supposedly inspire the drive to divert
cases from court:
... [P]rosecutors actively rejected from
diversion eligible defendants who were "convictable", and screened
into the program cases where there were technical (evidentiary)
problems or where the case would normally have been screened out
because it was too minor... This decision strategy maximizes their
various goals of convicting those who can be relatively easily
convicted, and extending some form of supervision to as many other
defendants as possible.
Hillsman goes on to speculate that defence
attorneys do not object to this strategy because it is also in their
interest to support it, since the strategy accomplishes the desired
end (dismissal) and does so with a minimum of time spent in
negotiation and without the need to use up "favours".
Considerable debate exists in the literature
about the ideal placement for pretrial screening programs. Some
commentators proceed principally from the view that diversion
program staff must be, and be seen to be, independent from both
prosecution and defence, in order to maintain both program goals and
credibility with decision-makers and others. Many program directors
suggest that ideally, they should be seen as "in the justice system,
but not of it". Musheno (1982) proposes that small, community
development-oriented organizations with clear communications lines
may be less likely to expand the program's catchment in ways which
would promote net-widening. A review (Administrative Office of the
U.S. Courts, 1979) of ten U.S. federal pretrial release service
agencies found that the five independently structured programs
appeared to have higher initial release rates, lower use of cash
bail, lower pretrial detention rates, less use of supervised
release, and lower pretrial rearrest rates. The programs which were
run by probation departments, on the other hand, appeared to have
slightly lower failure-to-appear rates. The same kinds of patterns
may pertain to other pretrial services programs as well.
Some deferred prosecution programs operate
from an initial screening process by prosecution officials, who then
refer the case to staff of the diversion program for their own
intake and screening process. Collaborative processes for joint
screening of cases by prosecutors and diversion staff together may
be closer to the ideal. In the Winnipeg Mediation Services,
prosecution and diversion staff jointly review cases from the outset
and make the screening decision together. This collaborative process
also helps staff from both offices to gain a clearer understanding
of each other's objectives, needs and operations.
The need to involve prosecutors and judges in
the initial process of goal-setting, goal-priorization and design of
alternative processing has been repeatedly emphasized (e.g., Galvin,
1977; Decker, 1985; Moriarty, 1993). Moriarty (1993: 69) suggests
that many criminal justice personnel are not familiar with the
diversionary alternative. Surprisingly, he states, "experience in
Massachusetts has demonstrated that a number of highly qualified
members of the [defence] bar know next to nothing about pretrial
diversion".
Other System Considerations
For deferred prosecution initiatives, it is
critical to be aware of other factors relevant to how the justice
system operates. Perhaps key among these is the process of plea
bargaining. Because deferred prosecution involves processes in which
the plea-, charge- and sentence-bargaining processes are still open,
it is important to be aware of how the existence of the diversion
option affects plea negotiation and vice versa.
Unfortunately, few studies have examined this
relationship in any detail. Galvin (1977:Vol.3:13) suggests, without
elaboration, that "deferred prosecution can make the diversion
program more of a handmaiden to plea bargaining than an option in
its own right". Rovner-Pieczenik (1974:145), in discussing the
options for organizational placement of diversion programs, noted
concerns that their placement in prosecutors' offices ran the risk
that "the potential abuses of plea bargaining are transformed and
expanded into 'diversion bargaining'". Especially with naïve,
first-time, and job-seeking offenders, lack of information about
what probably awaits them in the traditional system may both
increase their desire to participate in pre-trial diversion and
provide prosecutors with another mechanism for moving caseloads
expeditiously through the courts.
Deferred Prosecution: Discussion
There is a great deal of room for better
evaluative studies of adult diversion. In Feeley's (1983: 12) rather
pessimistic assessment, "Nowhere are the failures of the diversion
movement so glaring as in its evaluation." Little can be said with
certainty about much of what has gone on, save that a sizable
proportion of the cases who would normally have been dismissed,
given a suspended sentence, or fined have been streamed instead into
a relatively intensive experience.
On the other hand, it remains to be seen
whether this is inevitable. Roesch and Corrado (1983) suggest that
diversion has been hijacked and distorted from the original concept
by pressures to fit it to pre-existing objectives and perspectives
of the traditional justice system.
Among the challenges to pretrial diversion
raised by the literature are the following:
Program
targetting. Too many diversion programs end up diverting
offenders who would not have penetrated the justice system very far.
The challenge is to construct and maintain admission criteria which
take probable dismissal rates into account and test the limits of
what can, and should, be done with those who will not be dismissed.
Little needs to be done to improve the performance of low risk
offenders, and the resources of the system can be better used
elsewhere.
Program placement.
As noted above, it would appear that considerable differences are
observed in the numbers and types of cases handled by programs,
depending on the nature of their affiliation and working
relationships with other parts of the justice system. In particular,
considerable debate exists around whether prosecutors should screen
cases at an early stage, whether diversion staff should work
collaboratively with prosecutors, or if diversion staff should be
most closely affiliated with the defence bar.
Due process
considerations. Numerous critics have attacked the "consequences
without conviction" reality of diversion. At the least, they argue,
defendants being offered the diversion option should be informed
about the true nature of their prospects if they proceed to court.
The possibility that clients who fall within the parameters of the
diversion program will suffer a harsher penalty as a result also
needs to be addressed in an "informed consent" system.
Program quality.
Much has been said about the appropriateness of the interventions
offered to diverted clients. Too often clients are "cut to fit" the
program, not vice versa. Programs should have more flexibility in
assessing case needs and designing responses to the individual.
Mediation and Arbitration Programs
Programs for mediation and arbitration of
victim-offender conflicts which come to the attention of the justice
system have a place in a discussion of "programmatic" diversion
schemes, although that place is not without controversy. Even within
the ranks of advocates for "restorative justice" in general and
mediation in particular, some division of opinion has arisen as to
whether it is even reasonable to speak of rehabilitative aims for
victim-offender mediation (VOM).
Theoretical writings in the area, as in
diversion generally, point to the negative impact of adversarial
systems of justice and their attendant delays, "degradation
ceremonies", and punishments (especially through imprisonment), and
to the extent that VOM can mitigate these effects, it is argued,
there may be a positive, long-term impact on the accused. More than
that, however, some VOM advocates suggest that the mediation process
may have positive rehabilitative effects inherent in it, from such
aspects as giving the accused the opportunity to meet the victim,
fully learn the impact of the offence on the victim, gain insight,
participate in the decision about the consequences for his/her
behaviour, and make reparation. Further, there may be a beneficial
effect in reducing the "stigmatization" of clients. Many offenders
apparently perceive the VOM process and outcome as fairer than do
their counterparts who go through traditional justice processing
(see, e.g., Davis et al., 1980).
Other VOM advocates and practitioners
disagree, suggesting that, in the words of Marshall and Merry
(1990:193), "Any short-term intervention like that offered by these
schemes was unlikely to alter patterns of behaviour formed over a
long period of time and influenced by strong community, family and
peer-group forces."
Umbreit (1994:117), commenting on his finding
of no significant difference in recidivism between experimentals and
controls in four juvenile VOM programs in the U.S., says similarly:
It could be argued that it is naïve to
think that a time-limited intervention such as mediation by itself
(perhaps four to eight hours per case) would be likely to have a
dramatic effect on altering criminal and delinquent behavior, in
which many other factors related to family life, education,
chemical abuse and available opportunities for treatment and
growth are known to be major contributing factors.
Indeed, the VOM process itself does not
attempt to address criminogenic factors directly, although these may
on occasion be addressed in the agreed-upon conditions of the
settlement between victim and offender. Most VOM agreements,
however, confine themselves to terms such as an apology, restitution
to the victim, community service or a donation to charity, an
undertaking to behave civilly to one another, or a combination of
the above (Davis et al., 1980; Marshall
and Merry, 1990; Umbreit et al., 1994).
Nuffield (1997), in an evaluation of a
deferred prosecution VOM program for adults in Saskatoon, found that
only 12% of agreements contained a clause requiring the accused, or
both the accused and the victim, to obtain counselling or some other
therapy, to be assessed for therapy, or to research the available
therapies. Her finding that accused who went through VOM had a
higher recidivism rate than the controls (who had been screened into
the program, but had not proceeded, principally because of victim or
offender reluctance) seemed to be explained by the more extensive
prior records of the experimentals. She speculates (1997:46) that
"to expect mediation to reduce recidivism and prevent crime may be
loading it up with more expectations than it was designed or funded
to handle".
Dedicated Drug Treatment Courts
An innovation in the handling of "low-level"
drug offenders in the U.S. since the late 1980s has been special
drug courts. Although many of these are aimed solely at speedy
prosecution of drug offenders, there are two dozen or more which
target treatment. Variations exist in many program aspects,
including the stage at which diversion is available (deferred
prosecution or sentence consideration). The program is based on a
number of premises. They include, for example, that freedom from
drugs is a long-term goal, treatment should begin with
detoxification immediately after the "crisis" occasioned by the
arraignment, the judge should be actively and frequently in contact
with the offender, the program should include attention to
education, employment, and family issues, and relapses are to be
expected and dealt with in court immediately without resort to
lengthy imprisonment.
It is too early to tell what kinds of
outcomes to expect from treatment-oriented drug courts, but their
advocates are enthusiastic (see, e.g., Tauber, 1994; Dickey, 1994).
The oldest established such court (since 1989), in Dade County,
Florida, is a deferred prosecution scheme promising dismissal upon
successful completion of the one-year treatment program. It targets
felony drug possession defendants with up to three prior felony
non-drug convictions and any number of prior felony drug
convictions. The program includes counselling, acupuncture to assist
with withdrawal pains, fellowship meetings, education and vocational
services, along with active monitoring through urine testing and
regular court appearances in which the judge inquires into progress.
The program had an active caseload of about 1200 cases in 1993.
An evaluation by Goldkamp and Weiland (1993)
used a comparison sample of similar drug offenders who had been
processed in the years before the introduction of the drug court.
Eighteen months after program completion, 28% of successful program
graduates had been rearrested, about half the rate for the
comparison group. New offences were also less serious, on average,
than for the control group. The average time to rearrest for the
favourables was 235 days. Bench warrants for clients who failed to
appear in court or suffered a relapse in treatment were frequent;
fully 54% of clients had at least one bench warrant during the
program. Typically, the outcome was from two to eight days in jail,
the number of days escalating with subsequent violations. About half
the defendants presented with the option declined it, choosing to
take their chances in court. Although the program attempted to avoid
"net-widening", it is not clear how much was occurring. The
program's net cost per completed case was $800 for one year. Most
clients, however, contributed to the cost of their treatment, thus
lowering the net cost.
PART IV. Diversion at the Sentencing
Stage
Diversion at the sentencing stage can take
many forms. They include postponement of sentencing pending a
referral to an intensive, community-based intervention, and the
administration of "new" sanctions such as victim-offender mediation
and community service.
Alternate Sentence Planning Strategies
Alternate sentence planning programs,
sometimes known as "client-specific planning" (CSP), provide an
information/advocacy aid to prosecutors, sentencing judges and
defendants. CSP, a term coined by Dr. Jerome Miller, recommends
"prison-bound" convicted offenders for an intensive correctional
experience in the community which is individually tailored to the
risks and needs presented by each case. For that reason, alternate
sentence planning is probably more appropriately called a strategy
than a program since each program designed for an offender will be
unique.
Recommended correctional strategies to
maintain the offender in the community may include such diverse
elements as intensive surveillance, including electronic monitoring,
enrollment in treatment, educational or vocational programs,
restitution or community service, new accommodation arrangements
(such as group home placement), or even 24-hour supervision by a
live-in monitor. The key to the process is to fit the sentence
recommendations to the offender and the offence and manage the risk
and needs in the community.
Because CSP tries to target serious offenders
(e.g., those for whom a prison sentence is being recommended by
prosecutors or those eligible for early release from a prison
sentence), its success rate in having community-based plans accepted
by authorities tends to vary. Acceptance rates have varied from
one-quarter to three-quarters of all cases, with many programs
showing acceptance rates clustering around 50% (Yeager, 1995).
In the adult arena, there are a handful of
evaluations which address some of the key diversion questions in
relation to alternate sentence planning programs. Undoubtedly the
most comprehensive is Clements' (1989) study of 117 felony cases for
which CSPs were prepared. He compared CSP clients to 141 cases for
which no CSP was prepared. Despite attempts to match the comparison
group as much as possible, there remained observed differences. Many
of the differences suggested that the experimentals were a more
serious group. The CSP clients represented about four percent of the
total criminal caseload in the courts studied.
Clements' data showed that the CSP clients
were indeed convicted of serious charges; 55% were convicted of
crimes against the person, and in 33% of all cases the victim had
sustained an injury. 40% of the cases involved a weapon (handgun).
In terms of criminal history, 64% of the cases had one or more prior
convictions, 47% a prior felony conviction, and 38% had a prior
custodial term.
Many of the experimental group would indeed
have been "prison bound". Clements conducted a regression analysis,
a statistical method, in order to show whether, controlling for
other factors such as the seriousness of the offence, the fact of
having had a CSP presented to the sentencing judge made a difference
in sentencing outcomes. He found that it did, but only for those CSP
cases whose plans were fully accepted by the court (one quarter of
the CSP group). These 29 cases were significantly less likely to be
imprisoned than the control group.
Another 28% of the CSP cases had their plan
only partly accepted by the sentencing judge, and they were
imprisoned at the same rate as the controls. The remaining 47% of
the CSP group, for whom none of the recommendations of the CSP were
accepted, however, received much higher rates of incarceration than
the controls. Clements speculated as to whether a "dangerousness"
label became attached to CSP clients for whom the judge did not
share the view reflected in the plan. This may also be reflected in
the fact that the average probation term of CSP clients was 17
months longer than that of the controls, and the number of
conditions applied to them higher. Clements suggested that this is
in keeping with the CSP view that many of the clients which CSP
seeks to retain in the community actually require more control and
assistance than do most probationers. However, this does not explain
the differences between the experimental and control groups in this
regard. Perhaps the CSP served to identify more of the client's
needs and risks than does the average presentence report, and thus
raises more warning flags for sentencing judges. Significantly, the
overall variance in sentencing was accounted for almost entirely by
the seriousness of the offence.
This last finding was also suggested in a
study of the Restorative Resolutions program in Winnipeg (Bonta and
Gray, 1996). This program targeted cases for whom the Crown has
recommended at least nine months in prison. Additional criteria for
the program were a history of incarceration and/or breach of
probation. The 63 plans submitted to the courts in the first 30
months of the program were analysed. Nearly two-thirds (64%) of the
clients were repeat offenders; 76% were unstable in their family or
marital relationships; 51% had alcohol or drug problems; and 47%
were assessed as having emotional difficulties. Finally, 39% were
convicted of violent offenses.
Plans for 86% of the offenders were accepted
in whole or in part, and all of these accepted cases were placed on
probation. Offenders who had committed a violent crime, however,
were less likely to have their plan accepted by the judge.
Another significant predictor of plan
acceptance was Crown support for the plan. In 34 cases, the Crown
supported the plan, and in all of these, the judge accepted the
plan. Since many of these cases would have been instances in which
the Crown had initially recommended at least nine months in jail,
the CSP could have influenced the Crown's perception of the
alternatives.
Bonta and Gray used data on medium-risk
probationers to draw comparisons in a one-year follow-up of the CSP
cases (which were assessed as being mostly medium-risk as assessed
by the Manitoba Offender Risk-Need Scale). The 48 CSP cases for whom
a one-year follow-up was available had an 85% success rate (no new
arrests), as compared to 72% of the medium-risk probationers.
A number of evaluations of alternative
sentence planning have been conducted in North Carolina (Institute
of Government, 1990, 1987, 1986). Unfortunately, small sample sizes
and shrinkage over time in those samples greatly reduces the
generalizability of these studies, but they tend to suggest a
positive effect of the programs in diverting offenders from
incarceration. Another apparent indication is that CSP makes no
difference in cases which may not be "prison-bound". Again, however,
for that significant proportion of "prison-bound" CSP cases for whom
the judge rejects the plan, there are indications that prison
sentences may be significantly longer than for controls.
The Institute also conducted a study (1992)
of recidivism among 37,933 non-traffic offenders in North Carolina
who received various sentences in the state. The study showed that
the 313 offenders sentenced to the "Community Penalties Program"
(i.e., a rather intensive form of probation following the acceptance
of a CSP) were extremely similar along critical factors to the 6,514
persons released from state prisons to regular parole. These factors
included prior record, education, drug and alcohol involvement, and
felony conviction. It seemed that the CSP group had indeed been
"prison-bound". Interestingly, however, their recidivism rates after
an average of 26.7 months was 36%, compared to 41% for the parolees
after the same period, and the CSP group were rearrested for violent
crimes less often (6%) than the parolees (12%). These differences
remained after controlling for risk-related factors.
Other studies of CSP programs for adults in
Washington (Dash et al., 1970) Ottawa
(Peters, unpublished,1983, summarized by Yeager, 1992) and Boston
(Klausner and Smith, 1991) have been marred by small sample sizes
and questions regarding the comparability of control groups.
These few available evaluations of
alternative sentence planning for adult offenders suggest that the
approach holds some promise for diverting offenders from prison and
into a fairly intensive intervention in the community. However, the
more intensive the intervention, the more likely that offenders are
terminated early, detected in undesirable behaviours, and more
heavily penalized in a later proceeding. For offenders whose CSP is
rejected in the first instance by the sentencing judge, there may
also be a heavy penalty to pay, perhaps more than they might
otherwise have received. The proportions of cases where the CSP is
rejected are sizable in many programs.
Some of the program aspects and issues raised
by these studies echo those found earlier in diversion programs at
other stages. They are:
Catchment issues.
Targetting offenders who are truly "prison-bound" remains a
challenge. The use of clear criteria can be supplemented by
prediction instruments which estimate the probability of receiving a
prison sentence and the risk of recidivism. Since there are some
early indications that CSP may be superfluous for offenders who are
not prison-bound, this is a resourcing issue as well as a
diversion-effectiveness one. Then again, targetting offenders who
are at very high risk to reoffend may be a resource-intensive
exercise in futility. Klausner and Smith (1991) described a CSP
program for women who committed offences which were in the main not
extremely serious. However, their lifestyles were so dysfunctional
that fully 72% were unsuccessful in the program. All of the program
unfavourables and one favourable were incarcerated within a year,
although it is not clear whether it was for failing to meet the
terms of their sentence or for new offences.
Timing of
Referrals. Alternative sentence planning is time-consuming. It
can take 40 hours or more of staff time over a period of several
weeks. For this reason, it is important to begin the process at the
earliest opportunity. Dash et al. (1970)
found that workers needed to become involved in the case immediately
after defence counsel was appointed. This necessitated routine
screening of court dockets and integrated working relationships with
legal aid workers. This was not just because of the advance time
needed (or because defence attorneys tended not to call in CSP
workers until after they had developed their own strategy in the
case), but because of the inseparability of pretrial plea- and
sentence-negotiation processes. Dash et
al. found that although the program was aimed at sentences, if
the fundamentals of the plan were available early in the process,
they could actually increase the likelihood of case dismissal.
Structural placement
of the program. A similar issue relates to the ideal
organizational placement of the program. Some programs are an
adjunct to or a project of the legal aid society or bar association.
This seems to increase referrals, especially early referrals,
prevent workers from unduly "anticipating" the reactions of judges
and prosecutors, and enhance information-sharing with defendants and
their counsel. Other programs distance themselves from the defence,
aiming instead to present an independent assessment from all points
of view. It remains to be seen where the balance of advantages and
disadvantages lies.
Resistance from
related interests. Many commentators (e.g., Yeager, 1995) have
noted that privately-run CSP programs tend, at least at first, to
meet opposition from professional groups, probation officers in
particular, who may see the program as usurping and interfering with
their function. CSP may place an added workload burden on probation
and lead to sentence conditions which must be enforced by them, even
if they disagree with their application. This can, in turn, lead to
difficulties for CSP workers in carrying out their own mission.
Yeager notes (1995:26) that in North Carolina, the Office of the
State Auditor criticized the efforts of the probation office to
"de-stabilize" the Community Penalties Program.
Cost. Alternative
sentence planning is expensive, sometimes costing upwards of $2000
per plan. Offenders who are able to pay for this service will not be
in the majority, and the cost for the others is likely always to be
compared to the cost of presentence reports by probation officers,
even though these may not be a comparable service. Since CSPs will
not normally replace presentence reports, if they are to be
subsidized for indigent offenders, they will represent an additional
system cost.
Are Services
Provided? Many CSP programs try to "turn around" significant
elements of an offender's life before the time of sentencing, even
securing a confirmed program placement ahead of time. Doubtless this
can have a powerful effect at sentencing, but, depending on the
offender, it can be a formidable task. Clements (1987) notes that
attempts to secure a job for the offender and place him/her in a
residential treatment centre before sentencing were frequently
unfulfilled. For programs which do less of this early intervention
work, there still remains the question of the capacity and
suitability of community services, especially in the case of the
clients who might otherwise be prison-bound.
Community Service Orders
There is some question as to whether a
discussion of community service orders (CSOs) belongs in a review of
"programmatic" alternatives to custody. Certainly, most examples of
community service incorporate few if any of the traditional elements
of correctional treatment, although its adherents point to the
potentially reformative effects of regular attendance at a job site
(if only for brief and/or intermittent periods), exposure to
pro-social environments and other similar benefits. Pease and
McWilliams (1980) suggest, in fact, that community service has been
"all things to all men", and this is part of the problem. If
community service is to be used as a form of punishment, then it is
not always consistent with its implementation. This is demonstrated
in examples of lack of consequences for nonattendance, or the nature
of the work sometimes assigned.
If, on the other hand, community service is
to be treated as a rehabilitative measure, problems are often
encountered in finding work which is meaningful (or at the least,
not boring make-work) and building contacts with persons who are
likely to provide the offender with something of lasting value.
Flegg et al. (1976), for example, found
that CSO offenders mentioned the importance of the relationship with
their work supervisor on the job. The correct supervisor could
stimulate the offender's reappraisal of himself and others, provide
a role model and give the offender confidence. But for most
offenders experiencing community service, "the order will be a grind
to the end, perhaps with some small benefit" (spoken by a CSO
organizer quoted in Pease et al., 1977a).
Nonetheless, there are a few studies which
suggest that CSOs can in fact divert substantial numbers of
offenders from custody. These are cases where the offence is
considered to merit some additional punitive measure beyond
probation, and the offender is not considered a risk to public
safety. Pease et al. (1977b) estimated,
through indirect measures, that some 46 to 50% of CSOs imposed in
England in the early years of its growth were likely used in cases
which otherwise would have received a custodial measure. Spaans
(1995) arrived at the same proportional estimate with a more
sophisticated matched comparison of CSO offenders and offenders
given a short custodial sentence in the Netherlands. McDonald (1986)
documents a lengthy but successful struggle to increase sentences of
"prison-bound" offenders to community service in New York City.
Ultimately, after various program adjustments, 52% of community
service offenders were estimated by statistical modelling to have
been removed from the "prison-bound" population.
How CSO offenders compare, in terms of
recidivism, to similar offenders sent either to jail or to a
community-based option, is a question which has not been fully
explored. Pease et al. (1977b) found
somewhat higher rates of recidivism for CSO offenders than for
imperfectly matched comparison groups of offenders sentenced to
custodial and non-custodial options. McDonald (1986) found higher
recidivism rates for the CSO group in two boroughs of New York City,
but lower rates in a third.
Day Reporting Centres
Day reporting centres (DRCs) have been in
extensive use in England for a few decades, and are growing rapidly
in the U.S. Parent's (1995) survey indicates that in 1990, there
were 13 day reporting centres in the U.S., and by 1994 there were
114. Parent notes that there is as yet no systematic experimental or
quasi-experimental research on DRCs in the U.S., and this may in
part be as a result of the wide variation in their application.
Depending on state law and policy, they may be available at
virtually every stage of the justice process, and their varying
profiles are reflected in the enormous variance in the average daily
cost per attendee and the widely varying termination rates reported
in the survey (from 14% to 86%). Parent notes that many DRCs are
targetted at "nonserious, drug- and alcohol-using offenders who do
not require residential treatment" (1995: 23), but also suggests
that there is a recent trend towards placing at least as strong an
emphasis on supervision as on treatment. The norm is a five to six
month length of participation in the program.
In England, "probation day centres" service
two distinct populations: voluntary clients who may or may not be
offenders, and offenders who are required, as a condition of
probation, to attend a day centre for up to 60 days. These latter
so-called "4Bs" (after the section of the Powers of Criminal Courts Act of 1973 which
conferred the authority for them) are persons who, it is intended,
would otherwise be prison-bound, albeit for relatively short periods
of time.
British day centres have a lesser concern
with supervisory or control objectives. They focus instead on an
intensive program of life skills, cognitive skills, counselling,
vocational training, literacy and numeracy training, introduction to
computer use, and the like. The emphasis varies from centre to
centre.
For clients, it is an intense experience, one
which requires almost daily full- or (for employed clients)
part-time attendance. Vass and Weston's figures for referrals to
Cedar Hill Day Centre suggest that 10% of clients turned down the
option "either on the grounds that they could not participate in
such activities or because going to prison seemed an easier and
often quicker alternative" (1990:197). Vanstone (1986: 101-2) quotes
a client who found the regime too taxing:
I would not recommend this place. This
place has messed me up. Of all the institutions I've been in I
would not like to come to this place again if it were not for the
threat of prison. There are too many personal discussions and so
much distrust. It's very strenuous - you have to make an effort to
control your behaviour. I'm up against authority here. I can't
stand it. I'm anti-authority. It's not heavy but you still feel
it.
While there are no experimental or
quasi-experimental studies available to suggest precisely how many
"4Bs" were in fact diverted from prison, a few studies have
suggested that a substantial proportion were diverted. In the most
extensive available study of the centres, Mair (1988) reviewed a
sample of 867 clients (of both types). He found that they fit a
profile of socially inadequate repeat offenders with 60% of the
sample as "4Bs". Of these, 88% were under 30; 87% were unemployed;
67% were convicted of burglary or theft, 11% of violence; 51% had a
previous imprisonment; 43% had six or more previous convictions.
Mair concludes (1988:17) that "probation day centres may indeed be
playing a part as an alternative to custody for those who are given
4B orders".
Vass and Weston (1990) and Vanstone (1986)
agree, although also based on nonexperimental evidence. Vanstone
cites data showing the similarity between prison populations and the
population of one English day centre in terms of offence profiles,
the number of previous convictions, and the number of previous
imprisonments. A sample of social inquiry reports (presentence
reports) for the same centre showed that in 79% of the reports,
probation officers "raised the possibility of imprisonment". In 83%
of the cases in which the recommendation for day training was not
followed, a custodial sentence was imposed. Vanstone also notes that
recidivism rates of day centre clients after a year following
program completion are comparable with those for released prisoners.
Vanstone's interviews with Pontypridd Day Centre clients indicated
an average age at first sentence of 13 years, an average of 13
previous convictions, and, among 91% of the group, an average of
four custodial sentences.
Vass and Weston (1990) examined the outcomes
of 79 recommendations to the Cedar Hill Day Centre which were denied
by the courts. Of these, 56% were given custodial sentences.
PART V. Post-incarceration Programs
An interesting departure from the norm was a
program for "persistent petty offenders" described by Fairhead
(1981). Recognizing the substantial contribution to prison
populations made by persistent property offenders, officials
identified a sample of 125 such offenders for intensive assistance
in four areas: accommodation, employment, substance abuse and pro
social contacts. These offenders were older (half were over 40), had
extensive criminal records (half had 25 or more priors), tended to
have few or no close acquaintances and to abuse alcohol, and "slept
rough" or had no fixed abode. Reasoning that the first priority
should be to place these released offenders in stable accommodation
which was better than their accustomed living arrangements, program
staff attempted to secure placements for each. In addition, prior to
release, attempts were made to link each offender with a volunteer
who would accompany them to the accommodation from the prison gate
and would continue to provide assistance to supplement that of
corrections staff.
A group of 125 persistent petty offenders was
selected for intervention. It should be noted that these 125
offenders would, on any prediction scale, be considered high risk to
reoffend. In addition to their lengthy records, most were rated as
having "severe" problems in all four of the key needs areas. Only
one of the 125 offenders agreed to be assisted by a volunteer, and
all but eight refused the arranged accommodation, could not be
placed, failed to show up, or stayed there for less than a month. In
a nine-month follow-up, no significant differences in reconviction
or reimprisonment was found between those who were assisted into
accommodation (however briefly). However, there was a difference in
the number of reconvictions and reimprisonment sentences per
offender. Six out of the eight offenders who stayed in the arranged
accommodation for at least a month were not reconvicted during the
nine-month follow-up period. There is no record of further attempts
to assist the group with substance abuse, pro social contacts and
employment.
Juvenile Decarceration in Massachusetts and
Other U.S. States
The juvenile diversion literature provides
some noteworthy initiatives in decarceration. Best known among these
is the dramatic deinstitutionalization of the juvenile justice
system of Massachusetts during the early 1970's by Dr. Jerome
Miller, the then Commissioner of Youth Services. Aided by the Youth
Services' authority to assign offenders to whatever facility or
program deemed the most fitting, Miller abruptly transferred
virtually all juvenile inmates out of state facilities and
aggressively contracted with community service-providers for a wide
variety of alternative placements and programs, including group
homes and non-residential programs (Miller, 1994).
In 1968, one year before Miller's tenure
began, there were 2,443 commitments to Youth Services, 833 of whom
were institutionalized and 1,610 were on parole following a period
of commitment. In 1974, one year after Miller's departure, there
were 2,367 commitments, of whom 132 were in state institutions, 941
were on parole, 399 were in private group care facilities, 171 were
in foster care, and 724 were in other non-residential programs
(Bullington et al., 1986:513).
Although there has been some retreat from
Miller's original approach, the state retains one of the lowest
juvenile incarceration and crime rates in the U.S. Juvenile
arraignments fell 46% from 1974 to 1984 despite a 25% increase in
the juvenile population of the state (Bullington et al., 1986:517). A study of 800 clients
released from Youth Services care in 1984-85 showed a lower
re-arraignment rate after 12 and 24 months than for youth released
under the former training school system (Krisberg et al., 1989). However, there is some
evidence that rates of temporary juvenile detention may have
increased as longer-term stays decreased (Massachusetts Advocacy
Center, 1980).
Obviously, the success of this kind of reform
is dependent on a number of critical factors. The factors include a
suitable sentencing/commitment authority, political support, the
ability to assemble a sufficient number of effective community-based
alternative programs, and the skill to deal with opposition from
displaced state employees, political opposition, and public concern.
These factors are present in few jurisdictions, and virtually none
dealing with an adult correctional population. The funds previously
devoted to institutions must be available to support the
community-based alternatives to them, without regard for reaping
cost savings from institutional budgets at the outset.
Indeed, Miller was unable to replicate his
Massachusetts experience to the same degree during later tenures in
Pennsylvania and Illinois. However, there have been a number of
successful closures of individual juvenile institutions in various
U.S. states, including Utah, Maryland, and Missouri (see Krisberg
and Austin, 1993). Similar findings for deinstitutionalized
juveniles have been found in other studies (e.g., Lerner, 1990;
McGillis and Spangenberg, 1976).
PART VI. Ideas from the International
Arena
This section presents a few ideas from the
systems of other countries which could be added to the available
options for diverting offenders. Unfortunately, little if any
outcome studies are available on the impact of their implementation.
Day Fines
Day fines have been the norm in many European
countries for decades. The principle is to make fines more just by
tailoring the amount of the fine to the offender's ability to pay,
thus resulting in widely varying amounts of fines which nonetheless
would have an approximately equal impact on offenders with different
incomes. The total fine is payable in a lump sum unless installments
are authorized.
Some commentators (e.g., McDonald et al., 1992) have speculated that the
introduction of day fines may increase the use of fines in
preference to other forms of sentence, since in theory the day fine
system makes the fine more appropriate for both rich and poor. For
offenders with more financial resources, a day fine could have more
"bite", and for the poor, the day fine should still be within their
means. Day fines are premised, perhaps more than conventional fines,
on an active expectation that the fine will be paid, rather than
defaulted. Thus, day fines are considered to have a potential impact
on the imprisonment in default of fine payment for low-income
offenders. Since fines are the most common penalty in many justice
systems, in wide use even for some serious crimes, their potential
impact is enormous. A British Home Office study reviewed in Morgan
and Bowles (1981) attributed the extent of defaulting to real
financial hardship.
Of course, the calculation of day fines and
the resultant fine levels need to be gauged accurately. Fogel (1988)
cites a study that showed the same defaulting rates for day fines
imposed in the first year of their availability in Germany as under
the previous system three years before. In Finland, changes in 1976
to the method of computing day fines and in the number of day fines
per offence reduced the number of default days.
An experiment by the Vera Institute in
implementing day fines on Staten Island (McDonald et al., 1992) found that the average fines
imposed were larger and collection periods were longer. The day
fines, however, were collected in full as often as the lower, fixed
fines. Many day fines for more financially secure defendants could
have been higher if the statutory ceiling for them permitted it. In
this experiment, judges were given the option of using day fines or
the more traditional, fixed fines. In the first year, judges chose
to use day fines in 70% of the cases. There was, however, no impact
from the innovation on the relative use of fines, as compared to
other forms of sentence.
The same study also reported on a day fine
experiment in Milwaukee, where day fines were used in two-week
periods which alternated with traditional fines in succeeding
two-week periods. The average day fine was lower than the average
conventional fine, but again, for 22% of defendants who had a
greater ability to pay, day fines might have been higher if the
statutory limit permitted it. The two schemes had the same default
rate (61% for day fines and 59% for conventional fines), but those
offenders who were given day fines were more likely to pay their
fine in full (37% versus 25%). Among the lowest-income defendants,
33% paid day fines in full, as compared to 14% who were given
conventional fines. There was no significant difference in rearrest
rates over a nine-month follow-up period.
Prosecutorial Fines
Prosecutorial fines were found in Scotland
("fiscal fines"), Belgium, Sweden, and Germany, and no doubt exist
elsewhere. In these jurisdictions, the prosecutor has the authority
to levy a fine on consenting offenders who have not been convicted,
in exchange for a dismissal of charges. The prosecutor must be able
to demonstrate his/her ability to convict on the available evidence.
Judicial Waiver of
Prosecution
Some European countries give explicit
authority to prosecutors to waive prosecution in the public
interest, even where there is evidence to convict and where the
complainant wishes prosecution to proceed. Such an explicit
authority could give Crowns the "comfort level" they require to
withdraw or dismiss charges, even in instances where there is no
specific diversion program to which accused can be referred.
Probation Subsidy
Results of probation subsidy in the U.S.
have, in the main, been disappointing. California, Minnesota and
Kansas, among others, have experimented with this concept. The
notion is that the state (which controls prisons where offenders
serve a year or more) encourages comprehensive justice planning,
community development and reduced sentence lengths among local
county authorities. The county has responsibility for local jails
(housing offenders serving less than a year), many community
services, and probation departments attached to local courts. The
state provides grants to local counties which opt into the scheme
for the purpose of encouraging reduced or community-based sentences.
There is a "charge-back" for each offender sent to state prisons
from the participating county.
Jones (1990) found, based on an indirect
statistical prediction of sentences, that there may have been a
small effect (nine percent) from probation subsidy on the numbers of
cases retained in the community, albeit under more stringent
conditions than for regular probationers. In an extensive study of
Minnesota, Strathman et al. (1981) found
slight effects in the intended direction for juveniles, and none for
adults. In fact, there was an observed increase in the severity of
community sanctions for adults.
However, the Minnesota study suggested that
the program was implemented without proper planning, criteria for
local implementation, guidelines, or delineation of the roles and
responsibilities of local officials. With advances since that time
in the availability of statistical information for predicting
sentences, offender needs and risk, and in our knowledge about
alternative sentence planning and other methods which incorporate
strict criteria for usage, a more effective implementation of such
programs is theoretically possible.
Perhaps the more relevant question is whether
Canada's jurisdictional split is suited to the idea. In Canada, the
parallel to American probation subsidy would be for the federal
government to make grants to the provinces to enhance their
community corrections capability to handle offenders who otherwise
would be sentenced to two years' imprisonment or longer - probably
with a cut-off for "charge-backs" at two years or on some other
basis. Changes in this context may be doubly difficult because of
the meaning now attached to the split by sentencing judges, who may
view offenders whom they send to penitentiary as qualitatively
different from provincial prisoners.
Minimum Sentences
to Imprisonment
Several European countries, such as Germany
and the Scandinavian countries, have a "floor" of one month on the
length of custodial sentences. These are intended to reduce the use
of very short-term custodial sentences in the first instance (i.e.,
as opposed to imprisonment in default of fine payment). Introducing
such a "floor" in Canada would probably prove ineffective if not
accompanied by an expansion in other relatively minor punitive
options for sentencing judges. Otherwise, the impact might be simply
to increase the use of jail terms of just over one month.
Criminal Policy and Incarcerated
Populations
Criminologists have examined the imprisonment
rates of different countries in an effort to determine what factors
cause some countries to have very high rates of imprisonment and
others, much lower rates. Two recent examples (Snacken et al., 1995 and Junger-Tas, 1994) have,
like many before them, concluded that it is the criminal justice
policies of a nation which are likely the most important determinant
of incarceration rates.
Differences in crime rates between countries
and over time do not account for differing imprisonment rates. While
"external factors" like the age distribution, unemployment rate and
income disparities within a society have been linked to prison
populations, and "interfering factors" like public fear and opinion
can affect them, it is the "internal factors" of criminal justice
policy which most strongly impact them (Snacken et al., 1995: 40). Furthermore, these
policies can change, and can in turn change the patterns of
imprisonment and other sanctions within the nation.
Finland and West Germany are two Western
countries which in recent decades made deliberate efforts to reduce
their use of imprisonment. Finland traditionally had a higher
imprisonment rate than that of the rest of Scandinavia, but
researchers and scholars were able to demonstrate that this status
was due not to higher crime rates in Finland, but longer average
prison sentences. Legislative changes were coupled with intensive
courses and seminars with the judiciary, both in order to build
consensus over required changes and to promulgate them. It appeared
that the Finns were able to create consensus over the limited value
of punishment as a deterrent and the impracticability of widespread
incapacitation or treatment through carceral sanctions. Public
drunkenness was decriminalized and the maximum penalties for
property offences were reduced. The prison population dropped from
5600 in 1976 to 3500 in 1992. The use of fines increased greatly.
In West Germany after 1983, an apparent
consensus developed around the desirability of reducing
prosecutions, remands, and short-term incarceration sentences for
young adults and juveniles. This seems to have had a small spillover
effect on the treatment of older adults as well (Graham, 1990). The
total remand population dropped by nearly 30% between 1982 and 1988.
The adult prison population decreased from 38,500 to 35,600 between
1983 and 1986. In the same period, 17% fewer young adults and 1%
fewer older adults were prosecuted, and the proportion of all
convictions resulting in a custodial sentence also dropped by 19%.
For adults, the reductions in the imprisonment rate seemed to have
been a function of a decrease in shorter prison sentences; this
impact has not been entirely offset by an increase in longer-term
sentences.
The Germans made no legislative changes
during this period, although in the years before, some changes were
made which may have contributed to the climate of reform. In 1969,
custodial sentences of one month or less were abolished and
restrictions were placed on the use of sentences between one and six
months. In 1974, the availability of suspended sentences was
increased, and community service was introduced as an alternative to
jail in default of fine payment. But Rutherford (1988) suggests that
the key reason for the changes in the 1980s was an important
conference of 200 justice officials and policy-makers, which served
to coalesce the growing loss of faith in the rehabilitative and
deterrent impact of imprisonment.
Snacken et al.
(1995:42) concluded:
...[E]ven if the criminal justice system
cannot influence all elements that determine its functioning, it
has sufficient leeway to refute the argument that changing prison
populations are a pure product of external factors out of its
reach. Fate is, at least partly, a matter of policy.
PART VII. Summary and Conclusion
Although there is an alarmingly small number
of sound evaluations of adult diversion in the criminological
literature, they do point strongly to a number of tentative
conclusions, which in turn are supported by the more extensive
juvenile literature in the area.
Most significantly, it still remains a major
challenge for diversion programs to identify and work with clients
who would, but for the existence of the "alternative", have received
significant attention from the justice system. Rather, it appears
that large proportions of "diverted" clients might never have been
arrested, fully prosecuted, or given a significant sanction. To this
extent, concerns that diversion "widens the net" of social control
to a broader cross-section of offenders are well placed. Initiatives
designed to formalize police discretion to divert offenders may be
particularly vulnerable to this criticism.
Diversion programs tend to be used for first
offenders, younger persons, minor offences, and clients who present
less significant risks. These cases are felt to be more deserving of
the "break" that diversion is considered to represent. Diversion of
the mentally disordered from the justice system is also considered
appropriate, given the limited capacity of the justice system to
deal with the treatment, control and safety issues presented by
these individuals. Older offenders who present fewer mental health
problems and who represent a greater challenge from the standpoint
of the offences they commit and their past criminal involvement are
less likely to be considered suitable for diversion at
pre-conviction stages. For these offenders, attention to sentencing
alternatives after a conviction has been obtained is likely to be
the most productive course of action.
Diversion programs must be designed to take
into account the professional orientation and situational demands
placed on the justice system workers with whom they work most
closely. Prosecutors, for example, may instinctively screen out
cases where a conviction is less likely and the probable sentence
insignificant, while wishing to proceed with other cases which may
actually be more suited to diversion. Agreement on objectives and
productive working relationships among all involved parties is
highly desirable.
Expectations that diversion programs will
reduce justice system costs and will be more cost-effective than
traditional processing by the justice system are open to question.
In part, this is a product of the narrow reach of most diversion
programs. In the deferred prosecution area, most programs are able
to deal with only two or three percent of cases charged. Moreover,
diversion programs often represent a greater intervention in
clients' lives than does the justice system outcome that they
replace, and evidence of diversion programs which permit real
reductions in justice system expenditures is lacking. The cost of
operating diversion programs which will have a material impact on
clients can be significant.
Many diversion programs which are
"programmatic" suffer from problems common to corrections. The
interventions they provide may be inappropriate to much of the
client base they serve, may fail to deliver needed services, and may
have difficulty demonstrating a downstream impact on recidivism.
However, this is not to say that diversion interventions which are
better designed and delivered than those which have been evaluated
to date would not show better results.
Although "true diversion", as the early
terminology had it, was aimed at keeping lawbreakers out of the
justice system as much as possible and reducing if not eliminating
intervention with them, the past three decades of justice upheaval
have made it clear that diversion has become, and will continue to
be, characterized by attempts to address clients' risk and need in
some fashion. The further the offender's penetration into the
system, moreover, the more likely the "alternative" will actually be
an attempt to shore up and provide more treatment and more teeth to
existing community-based responses.
To this extent, a more effective strategy for
diversion must partake of the same approaches which are currently
being advocated for enhancing correctional intervention generally.
These approaches will thus include more selective and informed case
management strategies with specified offender goals (see, e.g.,
Andrews, 1996; Austin and Baird, 1990), and selective application of
structured approaches for offender change (Palmer, 1995; Robinson,
1995; Antonowicz and Ross, 1994; Anglin and Speckart, 1988; Gendreau
and Ross, 1987).
In addition, diversion can benefit from the
continuing expansion of our knowledge in the area of prediction,
both of criminal risk and of justice system outcomes. This growing
knowledge base can be used to refine the design of diversion
screening techniques and program design.
Finally, it is worth noting that nations have
a greater ability to influence their own criminal policies than is
sometimes supposed. The factors which determine a country's
imprisonment rate and use of other "alternatives" do not boil down
to a simple equation of crime rates and public pressure. European
countries and selected jurisdictions in the U.S. which have
deliberately set out to reduce their reliance on imprisonment and
other accustomed ways of doing business have found that it is
possible to build consensus and strategies for successful change.
With current concerns in Canada over the considerable and rising
costs of the justice system in general and imprisonment in
particular, we are once again at a juncture where policy-makers may
wish to decide to embark on a comprehensive strategy to influence
rather than be driven by present trends.
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