Diversion saves time for young offenders, their families and the courts, as well as taxpayers' money and lowers the recidivism rate. Because about 94 percent of all juvenile crimes in Utah are misdemeanors, there's an inherent benefit to diverting as many youths as possible.
"There's quite an opportunity for diversion in that 94 percent," said Lisa-Michele Church, Utah juvenile court administrator.
In Utah, 68.3 percent of youths who are diverted are never again petitioned in juvenile court. (A petition is similar to a charging document filed in adult court.)
But since fiscal 2003, when Utah leaders began studying diversion trends in earnest, black, Hispanic and American Indian youths have been diverted at a lower rate than their white counterparts. However, Asians are as likely, if not more so, to be diverted as whites.
Those facts prompted the Utah Board of Juvenile Justice's Disproportionate Minority Contact Advisory Committee to ask the U.'s Criminal Justice Center to analyze fiscal 2009 statistics to determine what factors may be influencing the disparity.
But the reasons aren't easy to pin down.
"That's the question," said Audrey Hickert, a U. research assistant professor who helped spearhead the study. "[From the factors] we can't isolate anything that is specific. [We] can't nail down any one cause."
More investigation needed • The study did identify several areas for further analysis:
• Minorities were placed in detention at a higher rate than whites, an important fact because no youths in detention were diverted. Law enforcement, rather than courts, determines who is initially placed in detention. Further assessment, the report said, "should examine why law enforcement is using [detention] with minority youth more often."
• Minorities had more severe prior histories in the juvenile justice system and thus were less likely to be diverted. And more of their offenses did not meet the diversion criteria. But minority youths who did meet the criteria were diverted at a rate significantly lower than whites.
• The study noted that youths who had previously been diverted were 25 percent more likely to be diverted again unless they were minorities.
• More minorities had open cases, such as fines that hadn't been paid or community service that was not completed. "The issue of open court cases is especially important, as intake staff noted it would be rare for a youth to have their episode diverted if they had an open case with a judge. It appears that more exceptions to that practice are being made for white youth."
The study analyzed 15,901 cases involving 8,569 youths in the state's three most minority-populous counties Salt Lake, Weber and Utah. Hickert said the research found disparities throughout the juvenile justice system in the counties analyzed.
Hickert said what happens to Hispanic youths ultimately drives the disparity trends statewide because Hispanics are the largest minority.
A nationwide issue • James Bell, director of the W. Haywood Burns Institute for Juvenile Justice Fairness and Equity, a San Francisco-based nonprofit, said he wasn't surprised by the findings. He said many other states face the same disparity issues in diversion.
"White kids are offered diversion and take advantage of diversion much more than kids of color significantly," Bell said.
He said youths living in neighborhoods of concentrated poverty who are often minority children are typically least likely to be diverted. His institute has pinpointed two reasons.
"Those young people just don't trust the system," he said, "because their peers and people they know haven't fared so well."
Also, he said, some juveniles adhere to a cultural norm of not admitting to a crime, so in states such as Utah which requires a guilty plea to qualify for diversion that's a factor. His institute has determined that some youths need to be educated about the benefits of pleading guilty.
Sheldon Spotted Elk, a member of the Utah committee that is tackling the issue, suspects income plays a big role in Utah's disparity.
"Disproportionately, minority people are lower income in the Salt Lake Valley," he said.
More American Indian families, he added, are moving from Utah's reservations to urban centers, which creates challenges for first-generation families by removing a traditional support structure.
Ensuring diversity among law enforcement and court officials, he said, could help foster cultural understanding and address stereotypes, such as some youths being more likely to be up to no good than others.
"Not having minority representation on the police force or on the bench, I think, makes a difference," Spotted Elk said.
Bell, who examined the study's findings at the request of The Salt Lake Tribune, said he was struck by the percentage of contempt cases handled in Utah's juvenile court in fiscal 2009. Those were the second most common episodes for both whites and minorities, behind class B misdemeanors, according to the U.'s study.
He said he understands the impulse to use incarceration for contempt, but "we all know the difference between compliance and change."
"What [incarceration] is set up to do is get you temporary compliance," he said. "They aren't getting change. They may get temporary compliance. And so often this notion of compliance is mistaken for change, which represents itself in the recidivism rate."
The fairness issue • Ultimately, officials agree that diverting as many children as possible typically reduces recidivism.
"Community safety in the larger term is going to be dealt with better if we can keep kids out of the system," said Reg Garff, Utah juvenile justice specialist. "It's cheaper on the front end and the back end in the long run."
On average, it costs $163.58 a day to house a youth in Utah's secure juvenile facilities, according to Susan Burke, director of Juvenile Justice Services.
Church said the findings from the U.'s study are informative, but "the complexity behind them is a little daunting" because so many factors go into the decision-making. She said any changes will need to be made at specific points in the system.
"We've tried to hone in on a few of the very specific factors and address those and then, hopefully, if we can get that adjusted, we can build on that and address more factors," she said. "And the cumulative effect of that, we hope, will be reflected in future findings."
But it's not as simple as pointing to the data and telling people they're being unfair, Church said.
"That might seem like what you'd say to your child when you're trying to teach them about fairness, but to a justice system you have to be much more sophisticated, and there's a lot of complexity that goes into it."
Family involvement is also a key part of the diversion process and can have a significant impact on the diversion rate, Church said. That can include whether a parent shows up with a child and whether there's a language barrier between state officials and a parent. For an offender to be diverted, parental consent is required. Typically, youths rely on parents for rides to classes or to fulfill work crew obligations to complete diversion.
Church said they've asked probation officers for feedback on the study's findings and hired more who are bilingual. They've also taken steps to remove the "legalese" from the initial letter sent to parents notifying them of diversion possibilities, Garff said. The letter is now at a fifth-grade reading level in English and Spanish.
"A lot of people are aware of the issues and working toward addressing these issues," Spotted Elk said. "That's the good news. The word is out and we have a lot of stakeholders working on remedies for these issues."
Going forward • Bell said it's going to take cooperation to get any noticeable results.
"Everybody has to do something a little differently rather than saying, 'You're high go to jail,' " he said.
Bell recommends that Utah set up a process in which numbers for every county can be analyzed on a quarterly basis.
"The feds haven't given them the tools to get down to that granular level," he said.
He said getting there will allow Utah leaders to determine exactly where disparity is occurring and remove emotion from the discussion.
For instance, is one police department locking up youths at a higher rate than another? Are youths who live in ZIP code A being diverted more frequently than those in B? Are youths associated with Courtroom A getting the same treatment as those in Courtroom B?
Bell said Utah receives federal funding to tackle the issue of disproportionate minority contact and recommends the state use some of that to delve deeper into the issue to better target what might be causing the disparities.
Once armed with specifics, he said, the players can sit down on a quarterly basis to discuss strengths and weaknesses and ultimately make changes.
What is diversion?
Some juvenile offenses can be resolved without a court appearance through a process known as diversion. Probation officers assist the youth and parents in resolving the matter with a "non-judicial agreement" between the youth and the court where the youth agrees to pay fines, restitution, perform community service or a similar consequence without a formal petition being filed in juvenile court.
Youths don't qualify if they've committed a felony, or more than four misdemeanors in at least two separate incidents and the current case is a repeat offense. Also, youths who have committed a motor vehicle-related offense involving alcohol or drugs, who have been found in contempt, or who cannot reach a resolution involving restitution with the victim don't qualify.