27th January 2021
This literature review conducted by the Centre for Justice Innovation explores how youth diversion can contribute to keeping children and young people out of the formal criminal justice system but, if access to diversion is unequal, it can exacerbate racial inequality in criminal justice outcomes for young people.
Research from other countries, notably the US, shows that racial disparities can pervade diversion schemes. Explanations advanced for this include: unfettered discretion and the use of simplifying shorthand cues; the unquestioned use of apparently race-neutral indicators e.g. prior record; a lack of trust in the criminal justice system; racialised perceptions of culpability and capacity for reform; racialised assessments of risk; and a focus on welfare needs.
The question of who has access to diversion at the point of entry to the criminal justice system is important. Contact with the justice system can itself be criminogenic, deepening and extending children and young people’s criminal careers, with outcomes generally worse the further they are processed. Diversion limits this contact and the decision whether to divert can drive children and young people’s escalation into or trajectory out the formal criminal justice system. Research shows that unequal outcomes at the front end of the justice system can accumulate into larger disparities.
The review finds that racial disparities in access to diversion can be driven by inequalities in policing. BAME communities are more tightly surveilled, increasing the chance of detection and arrest, and are more likely to be arrested in situations for behaviour white people would not. In this way, racial disparities attach to the apparently race-neutral measure of ‘prior record’ which can be an important determinant of a person’s access to diversion. To address this, Schlesinger suggests looking to measures that ‘hold the least accumulated racial discrimination’ e.g. arrests for violent crimes rather than arrests generally.
Moreover, minorities may be deemed more culpable and less amenable to reform, barring the opportunity of diversion. Bridges and Steen note that practitioners separate internal (personality) factors from external (environmental) factors as causes of offending, with the latter entailing less culpability and therefore resulting in greater leniency. They found that probation officers tended to attribute black children and young people’s offending to negative attitudes or personality traits, while using environmental factors to explain white youths’ offending. Therefore, interpretations of behavioural and attitudinal indicators of risk may therefore operate to the detriment of BAME children and young people especially.
Diversion disparities may also stem from the fact that BAME people have significantly lower trust in the criminal justice system than their white counterparts. The Lammy Review similarly flagged this trust deficit, noting that it renders BAME people less likely to admit an offence or plead guilty at court. This can bar young people from diversion, which often requires a formal admission of guilt. The Centre’s recent briefing on eligibility criteria for diversion recommended that flexible criterion of ‘accepting responsibility’ should be used rather than requiring a formal admission of guilt. Admitting guilt is often interpreted as an indicator of remorsefulness and willingness to comply with the requirements of a diversion scheme, assumptions which Schlesinger points out ‘may be highly racialised’.
Read ‘Disparities in youth diversion – an evidence review’ on the Centre for Justice Innovation website here.