2. Juvenile Offender Treatment

When a juvenile offender has been adjudicated within the juvenile justice system and has been evaluated and found to have alcohol and/or other drug abuse problems, any disposition of the case should include treatment for those problems. Any juvenile who is detained pending trial must be given access to appropriate alcohol and/or drug treatment if evaluated and found to have alcohol and/or drug abuse problems.

There is general agreement among those involved in juvenile justice administration, whether judge,37 prosecutor,38 or treatment specialiat,39 that alcohol and drug abuse has reached epidemic proportions among juvenile offenders. One treatment official in Los Angeles reported to the Advisory Commission that, "of the 35,000 plus youngsters who come through Los Angeles County's Juvenile Courts each year, ... 85 to 90 percent have a basic, underlying drug problem."40 A recent national study reported by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) found that 50.3 percent of adolescents treated for delinquency had drug and/or alcohol problems.4'

Youth drug and alcohol abuse is a problem which the current system has failed to adequately address, and without reform may be unable to overcome.42 Accordingly, this recommendation urges that all juvenile offenders in need of alcohol or drug abuse treatment be given access to treatment while in the custody of legal authorities, and that the diversion of eligible juveniles into treatment facilities is an appropriate method for achieving such treatment.

Background: Access to Treatment

In 1967, President Johnson's Commission on Law Enforcement and the Administration of Justice recommended the "early identification and diversion to other community resources those offenders in need of treatment, for whom full criminal disposition does not appear required."43 This recommendation won swift approval from a variety of sources in the legal community.44

The American Bar Association endorsed offender diversion early,45 and has been instrumental in the creation and development of subsequent criminal diversion policy. The ABA, in conjunction with the Institute of Judicial Administration has dedicated volumes of the Juvenile Justice Standards to discussing and standardizing the procedures involved in juvenile diversion. The Standards Relating to Youth Service Agencies states:

The primary goal of each youth service agency is to ensure that needed services are delivered to juveniles in the community before any court contact occurs. A subsidiary goal is to ensure that suitable programs are also available for
all juveniles and their families formally referred by the police or courts, and not simply for those who are most easily rehabilitated.46

Juvenile diversion is firmly rooted within the ABA's tradition as an important alternative to the standard tools of juvenile justice: prosecution and incarceration. This support has been a crucial factor in the development and maintenance of the various diversion programs around the country.47

Therefore, it is consistent with established ABA policy that any juvenile who has come in contact with the juvenile justice system, and who has been found to have alcohol and/or other drug abuse problems, should be given access to appropriate treatment. Juvenile diversion is an appropriate vehicle to facilitate these treatment needs.

The Problem

As early as 1967, government officials were concerned about the sharply rising numbers of arrests, and the high recidivism rates among juveniles. The President's Commission on Law Enforcement and Administration of Justice, critical of the formal juvenile justice system, concluded that "the formal sanctioning system and pronouncement of delinquency should be used only as a last resort."48

The U.S. Supreme Court, in In re Gault,49 held that the wide powers of the juvenile court system had not appreciably diminished youthful crime, that inconsistencies in its philosophy had adverse effects upon youth under its control, and that gross injustices had resulted from its procedures in which youth were punished more severely than adults for comparable offenses.50 Critics condemned the juvenile court system as "degrading,"51 "unreasonable, prone to ordering detention,"52 and "criminogenic."53 This was the atmosphere from which the juvenile diversion programs first evolved.54

Testimony received by the Advisory Commission, reported that the same problems which confronted the juvenile justice system in the 1960's are still prevalent today. A broad consensus exists among juvenile justice officials and scholars that an unacceptably high rate of recidivism continues to persist among juvenile offenders;'5 that the juvenile justice system fails to meet the specific needs of juveniles;56 and that contact with the juvenile justice system can be more injurious than rehabilitative.57

The term diversion58 has been used to describe various administrative practices which procedurally have very little in common.59 For example, the police officer who rather than arresting a delinquent youth, chooses to take him home for a talk with his parents, exercises in essence a diversion decision.60 The unstructured discretion of a prosecutor to decline to charge or to prosecute in the interest of justice is also diversion.61 The problem with defining these informal procedures as juvenile diversion, is that such procedures, ad hoc by their very nature, are subject to uneven, even unfair, application.62—Thus, the American Bar Association, National Association of Pretrial Services Agencies, and other concerned organizations promulgated standards by which pretrial diversions should be governed.63

This recommendation takes into account the various procedural and Constitutional challenges which have been levied against diversion.64 These concerns are dealt with in the Institute of Judicial Administration - American Bar Association Juvenile Justice Standards. Thus, issues such as juvenile representation, the requirement of a plea, and the right to a speedy trial will not be discussed in this report.

Goals of Access to Treatment Through Juvenile Diversion

The traditional goals of pretrial diversion include: unburdening court dockets and conserving judicial resources for more serious cases; reducing the incidence of offender recidivism by providing an alternative community-based rehabilitative incarceration, and benefiting society, as well as the accused, by the training and placement of previously unemployed persons.65 This recommendation addresses another goal: where evaluation and screening indicate an alcohol and other drug abuse problem, diversion can facilitate the treatment and rehabilitation of the accused. The Advisory Commission received a great deal of testimony throughout its hearings explicitly recommending that adequate and complete substance abuse treatment to those juveniles in need of such treatment could be accomplished through diversion.66 These recommendations from those working within the juvenile justice system are important given the recent history of the pretrial diversion movement. Though pretrial diversion is far from extinct,67 its prominence has decreased over the last several years.68 While the number of diversion programs across the country has fallen,69 the amount of criticism the movement received has increased.70 Much of the criticism has centered on the failure of the diversion movement to achieve the lofty goals it set for itself back in the late 1960's. Pretrial diversion advocates have responded to this criticism by reappraising their goals:

It would appear that the most relevant question today about the pretrial diversion movement is not whether the programs have the impact they originally intended but why they do not, or why those effects are not stronger .... The major task now facing this field involves identifying the conditions under which pretrial diversion programs might achieve more of what they set out to do over a decade ago.71

One condition under which pretrial diversion can achieve its original goals would be the diversion of alcohol or drug abusing youth into treatment programs. These programs, with their limited scope and purpose, have achieved dramatic results in the treatment and rehabilitation of juvenile offenders.72

Conclusion

Testimony before the Advisory Commission has confirmed that a crisis presently exists in the juvenile justice system. The juvenile courts across the nation are ill-equipped to deal with the alcohol and drug abuse epidemic which prevails in its courtrooms and jails. This recommendation urges the states to confront this crisis by providing alcohol or drug abusing youth within the juvenile justice system an effective treatment alternative through diversion programs.

36Supra note 31, at 2.

37See testimony of Judge Leon Emmerson, Los Angeles.

38See testimony of Phillip Carchman, Princeton: "I can only speak for [my] county, perhaps in excess of 50 percent of the offenses we see committed by juveniles involve alcohol abuse or drug abuse."

39See testimony of Thomas H. Blatner, Princeton: "The New Jersey Department of Corrections estimates that 25 to 40 percent of the adolescents admitted to its facilities are either alcohol or drug addicted, or are experiencing problems with drugs or alcohol."

40Testimony of Judge Randolph Moore, Los Angeles. Judge Moore added that the statistics he reported did not account for "the many more thousands that bdo not come before our Courts and go unnoticed, untreated, and uncared for...."

41 Young, Residential Child Care, 1966 and 1981: Facilities for Children and Youth with Special Problems and Needs, University of Chicago, School of Social Service Administration at 92 (1982).

42See generally testimony of Gary Mangiofico, Los Angeles: "[the adolescent treatment community does] not believe that jail cells will cure chemical dependency, but we do believe the law enforcement/legal system can make a major impact in getting young people the appropriate help they need."

43Report of the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society at 332 (1967).

44See former Attorney General John Mitchell's address to the National Conference on Corrections, in which he states, "in many cases society can best be served by diverting the accused to a voluntary, community-oriented correctional program instead of bringing him to trial." The Minneapolis Star, Dec. 6, 1971, at 13b. See also an address by Associate Justice Rehnquist before the National Conference on Criminal Justice, in Washington, D.C., January 24, 1973. Other groups voicing support of diversion as a viable alternative to adjudication and incarceration, include the National District Attorneys Association, American Correctional Association, and National Council on Crime and Delinquency.

45See ABA Commission on Correctional Facilities and Services, Coordination Bulletin No. 17, June 1973. See also ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense  Function (1971). Standard 3.8(a) of the Prosecution Function, and Standard 6.1 of the Defense Function urge each party to explore the availability of non-criminal disposition, including early diversion into community-based rehabilitation programs, especially for first offenders.

461nstitute of Judicial Administration - American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Youth Service Agencies, approved by the House of Delegates, American Bar Association, 1980, see, e.g., commentary to Standard 2.1 of Youth Service  Agencies at 38.

47See, The Performance Standards and Goals for Pretrial Release and  Diversion, approved by the National Association of Pretrial Services Agencies, which remarks in the preface, "To date the American Bar Association and the National Advisory Commission on 47 (cont.) Criminal Justice Standards and Goals have led the way in attempting to define some standards in the area of diversion against which we can all measure whether we are coming any closer to being able to administer justice." Id. at iii.

48President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 81 (1967). The Report continued to say, "[the juvenile court system] has not succeeded significantly in rehabilitating delinquent youth, in reducing or even stemming the tide of delinquency or in bringing justice and compassion to the child offender."

49387 U.S. 1 (1967).

50íd. at 1-81. See also, Lemert, Instead of Court: Diversion in Juvenile  Justice 3 (Center for Studies in Crime and Delinquency, National Institute of Mental Health, 1971).

51 Lemert, supra note 50, at 12.

52Ferster, Juvenile Detention: Protection, Prevention or Punishment?, 37 Fam. L. Rev. 123 (1969); also published in Diverting Youth from the  Correctional System 31 (Youth Development and Delinquency Prevention Administration, U.S. Department of Health, Education and Welfare, 1973).

53Vorenberg and Vorenberg, Early Diversion From the Justice System: Practice in Search of a Theory, published in Prisoners in America 154 (Ohlin, ed. 1973). The Vorenbergs, described the court system as "hopelessly overloaded with cases; ... brutal, corrupt and ineffective."

54Hillsman, Pretrial Diversion of Youthful Adults: a Decade of Reform and Research, 7 Just. Syst. J. 361 (1982):
Defendants were afflicted with a wide array of social, emotional and physical problems, and their criminality tended to be neither violent nor particularly serious. What struck the reformers of the 1960's was the court's inability to address these deeper problems as they went about their traditional task of processing cases.

55See generally testimony of Phillip Carchman, Princeton. See also Selke, Diversion and Crime Prevention, 20 Criminology 395 (198TRojek and Erickson, Reforming the Juvenile Justice System: The Diversion of  Status Offenders, 16 Law & Soc'y Rev. 241 (1981-82).

56See generally testimony of Phillip Carchman, Princeton; Judge Randolph Moore, Gary Mangiofico, Los Angeles; and Hillsman, supra note 54, at 361.

57See generally testimony of Paul Mones, Esq., Los Angeles; Thomas H. Blatner, Princeton; and Baker, Milkman, and Sadd, The Court  Employment Project Evaluation: Final Report (Vera Institute of Justice, 1979).

58The American Bar Association, in its Juvenile Justice Standards, adopts the definition of diversion found in the Report of the Corrections Task Force of the National Commission on Criminal Justice Standards and Goals:
Diversion refers to formally acknowledged ... efforts to utilize alternatives to ... the justice system. To qualify as diversion, such efforts must be undertaken prior to adjudication and after a legally proscribed action has58(cont.)
occurred .... Diversion implies halting or suspending formal criminal or juvenile justice proceedings against a person who has violated a statute in favor of processing through a non-criminal disposition.
Institute of Judicial Administration-American Bar Association Juvenile Justice Standards: Standards Relating to Youth Service Agencies at 5, citing, National Commission on Criminal Justice Standards and Goals, Corrections Task Force Report at 50 (1973). Implicit in the above definition is a two step process: first the accused is diverted from the traditional criminal process, and then placed into an alternative rehabilitative program such as an alcohol and/or drug abuse treatment program.

59Nimmer, Diversion: The Search for Alternative Forms of Prosecution at 4 (American Bar Foundation, 1974).

60Klein, Issues and Realities in Police Diversion Programs, 22 Crime and Delinquency 421 (1976).

61National District Attorney's Association, Monograph on Philosophical,  Procedural and Legal Issues Inherent in Prosecutor Diversion Programs at 3-4 (1974).

62National Association of Pretrial Services Agencies, Pretrial Diversion: Performance Standards and Goals for Pretrial Releases and Diversion (approved 1978). See enerall Vera Institute of Justice, Programs in Criminal Justice Reform 1972 .

63lnstitute of Judicial Administration - American Bar Association, Standards Relating to Youth Service Agencies; National Association of Pretrial Services Agencies, Diversion: Performance Standards and Goals for Pretrial Release and Diversion. See also Note, Pretrial Diversion From the Criminal Process, 83 Yale L. J. 827, 828 (1974):
The label of diversion may properly be reserved for dispositions pursuant to formal standards followed by supervised rehabilitation. Pretrial diversion provides, in principle, criteria for decision-making, ... [I]t is an attempt to standardize ad hoc procedures of an informal discretionary system.

64See generally Note, supra note 63, at 827.

65See Standards and Goals for Pretrial Release and Diversion, supra note 47, at 24, which defined the goals of diversion as:
providing the traditional criminal justice system with greater flexibility and enabling the system to conserve its limited resources for cases more appropriately channeled through the adversary process; providing eligible defendants with a dispositional alternative that avoids the consequences of regular criminal processing and possible conviction, yet insures that defendants' basic legal rights are safeguarded; advancing the legitimate societal need to deter and reduce crime by impacting on arrest-provoking behavior by offering participants opportunities for self-development. Id. at 24.

66See generally testimony of Thomas Blatner, Phillip Carchman, Princeton; and Gary Mangiofico, Judge Randolph Moore, Paul Mones, Esq., Los Angeles.

67l-lillsman, supra note 29, at 367.

68Pryor, Practices of Pretrial Diversion Programs: Review and Analysis of the Data, (Pretrial Services Resource Center, 1982).

69The American Bar Association Directories of Pretrial Intervention Projects identified 148 projects in 1976. The Pretrial Services Resource Center identified 127 such projects in a 1981 survey. An interesting fact uncovered by this recent survey is the volatility of diversion programs; of the 127 projects identified, 62 percent had started up after 1974, and 28 percent since 1976.

70See supra note 55, at 241.

711iillsman, supra note 54, at 380.

72A limited investigation by the Advisory Commission uncovered a
number of successful diversion projects around the country. For example:

The Youth Diversion Unit of Whittier, California. This project is administered by the local law enforcement agency. The Unit identifies eligible first offenders and refers them to the appropriate treatment facility. The Unit reports that in 1984, of the total number of juveniles taken into custody, 19.2 percent were diverted, of that number, 19.8 percent recidivated.

The District of Columbia Juvenile Diversion Project. This project refers eligible juveniles to treatment in one of a consortium of private agencies. The project reports that while 30-35 percent of previously incarcerated juveniles are subsequently rearrested, only 20 percent of those juveniles who have been diverted are later rearrested.

Alcohol-Jail Program, Metropolitan Atlanta Council on Alcohol and Drugs, Inc. Due to reports by county and city jail facilities in metropolitan Atlanta of estimates of 75-80 percent of inmates with alcohol related incidents, an "Alcohol-Jail Pre-Release Course" was initiated by the Metropolitan Atlanta Council on Alcohol & Drugs, Inc. The Alcohol-Jail Pre-release course consists of four, two-hour sessions taught over a two week period. The medical aspects of alcoholism, the relationship between alcohol/drugs and crime, the relationship between alcoholism/drugs and domestic relationships, the disease of alcoholism, and the revolving door jail syndrome are just some of the topics covered by the course. A personal action plan is also developed and tailored to fit the needs of the individual and help find constructive alternatives to his alcohol/drug abuse. See testimony of Robert Y. Halford, Atlanta.

The Intake Service Conferences of Essex County, New Jersey. This diversion process is administered by an adjunct of the county Family Court. The court case managers review and refer eligible candidates to outside agencies. Essex County reports that of those diverted, 68 percent never come before a court. Each of New Jersey's counties has an equivalent program. These programs derive their authority from the New Jersey Family Court Act, N.J. Stat. Ann. Sec. 2A:4A-70 et. seq. (West 1983-84), which refers explicitly to alcohol and drug abuse as one of the criteria to be considered in making the decision to divert. Other states possess similar diversion statutes to those contained in the New Jersey Family Court Act. See, e.g., The California Juvenile Court Law, Cal. Welf. & Inst. Code Sec. 654 (West 1984); Mass. Gen. Laws Ann. ch. 276A, Sec. 1 et. seq. (West 1985).