In my last post, I discussed restorative justice, law enforcement in schools, and why it was important we implement restorative justice practices. In this post, I will discuss programs which can reduce student entanglement in the justice system, reduce crime, and improve student outcomes. I have three main recommendations. First, I suggest expanding the eligibility requirements for pretrial diversion programs. Second, diversion programs should be designed to address the underlying causes of crime, repair harms, and prevent reoffending. Third, school discipline should be put back in the hands of school administrators to reduce the criminalization of acts on school campus.
Expanding Diversion Programs
Pretrial diversion is a process that allows a defendant to have the charges against him dropped without having to enter a guilty plea. In California, a defendant with pending charges may, at the discretion of the prosecutor and judge, be required to participate in drug or alcohol education classes and follow a plan involving medical treatment and counseling. Only after a program is completed satisfactorily are the charges dropped.
Current law limits eligibility for pretrial diversion. California Penal Code Section 1000 only applies to drug-related offenses, whereas Section 1001.36 extends it to cases where mental health is an issue, and Section 1001.80 to military veterans with PTSD. In any other situation, prospective defendants are not entitled to pretrial diversion under current law. According to the California Attorney General’s office, only 18% of youth misdemeanor arrests are for drug or alcohol related offenses. This means that only a small portion of cases qualify for pretrial diversion under these statutes. According to the same source, upwards of 55% of youth arrests are for violent or property offenses, usually simple assault and battery, theft, or defacing property.
My suggestion is to change the law to expand eligibility to those offenses which constitute the bulk of arrests. The misdemeanor assault and battery, property crime, and status offenses are all potentially remediable by restorative justice programs (depending on the situation), and youth participation in the types of programs I discuss below can prevent the negative outcomes associated with prosecution and entry into the criminal justice system.
Restorative justice can also be applied to instances of violent crime in some cases, though it is more difficult and complicated. Restorative justice principles can be utilized to address the underlying causes of the crime, and, in cases where victim engagement is appropriate, can help the victims recover. For example, we already have victim-offender dialogues designed to engage the offender in developing empathy for victims they have harmed, to take responsibility for the act they committed, and to assist the victim in recovering. Though this tool is currently used after conviction, it can be utilized in diversion, as I discuss below.
Due Process Rights
As I discussed in my last post, restorative justice draws criticism for subjecting somebody to obligations such as therapy, treatment, or community service without needing to first be convicted. Additionally, restorative programs also require offenders to be honest with many different people about what they did and why, to better aid in the creation of a plan to prevent reoffense in the future. However, without protections, a defendant’s honesty could easily be used later by prosecutors to secure a conviction in the event a restorative justice plan is not adhered to, but, unfortunately, teachers, therapists, doctors, and others involved may not be privy to how their well-intentioned work could disadvantage their patient as a defendant.
Pretrial diversion programs, however, already avoid this issue with some statutory protections. Participation in diversion does not require a formal admission of guilt, and records of treatment are kept confidential and sealed once a program is completed. The existing protections are limited, as the current programs only address drug use and mental health treatment. But extending confidentiality to all professionals who are involved in a program, or otherwise preventing a defendant’s participation from disadvantaging her at trial could simultaneously ensure the efficacy of the program and protect a defendant’s due process rights.
Ultimately, while restorative justice programs may place some burdens on the defendant without a conviction, the burden of a conviction and the social stigma it carries is a far greater burden in many cases.
Example Youth Diversion Programs
Currently, there are only four counties in California with restorative justice-based diversion programs: Alameda, San Francisco, Los Angeles, and Contra Costa. Alameda and San Francisco have programs which are based on the restorative principles I discussed in my previous post, while Contra Costa and LA counties’ programs are somewhat more limited.
Alameda and San Francisco counties partner with Communityworks to run a Restorative Community Conferencing Program (RCCP). Counselors and program coordinators first meet with the victims of crime to assess their needs, then meet with the offending youth to begin counseling, developing empathy for those affected by crime, and planning to rebuild trust and repair harms. The specifics of the plan are customized to the stakeholders involved and their specific needs. Plans may involve victim conferencing, development non-criminal skills, community service, or other forms of case support (direct dialogue with victims or an apology letter, getting a job to help pay for damaged property, volunteering at school, et cetera). The point is that a plan created under the RCCP assesses the needs of the offender, victim, and community, then comes up with some method of holding the offending youth accountable.The program does so in a way that promotes the offender’s collaboration and investment in the community, rather than total removal and non-constructive punishment. Once an agreement is made and adhered to, the pending charges are dropped, nobody gets prosecuted, and, ideally, everybody is better off.
Contra Costa County’s pretrial diversion program is targeted at youths who have had multiple run-ins with law enforcement. Its program, Law Enforcement Assisted Diversion ( LEAD) is modeled off of the Seattle-King County LEAD program which reduced rearrests by 58%. Like the RCCP, LEAD is a voluntary program where an offender may choose to participate rather than be prosecuted. However, because LEAD is based on criteria in the California Penal Code, it seems to be limited to drug use disorder and mental health assistance. The LA County program, Alternative Prosecution Program, is also limited to first-time misdemeanor cases, drug abuse disorder treatment, and mental health assistance. Contra Costa County and Los Angeles’ programs seem to be limited to people who fall into the scope of the statutes discussed above.
Current diversion programs address important needs, since drugs, alcohol, and poor mental health can all play a significant role in a person becoming involved with the justice system. However, there are many other ways in which someone can become involved in the system, and the option of pre-trial diversion should be the rule rather than the exception. My suggestion is to modify the Penal Code Section 1001 to expand pre-trial diversion eligibility to those who could benefit from it but who may not meet the current law’s eligibility requirements. Second, any statewide program should be like those in San Francisco and Alameda counties.
Teacher-led Restorative Justice
Finally, I want to address the issue of criminalization of activity on school campuses. One of the main issues with law enforcement on campus is that SRO’s have wide discretion to assess whether something is just typical problem behavior, or criminal behavior. They tend toward the latter as a result of the rise in “zero tolerance” school discipline policies. Officers may, at their discretion, let students off with warnings or arrest them and refer them to the DA’s office for prosecution. About 40,000 youths were arrested in California in 2018. Youth arrests are associated with a significantly increased likelihood of dropping out, suspension, expulsion, and future incarceration.
Given these harms, I suggest we do two things. First, minor disciplinary issues should be handled by teachers, faculty, and other staff. Second, more serious behavior should be directly referred to the diversion programs described above.
Direct referral is more efficient. If someone needs referral, why not cut out the middlemen? Why wait for assessment by law enforcement and prosecutors when teachers are, themselves, ready and able to look for troubling signs in student behavior and intervene? Instead of Student Resource Officers (SROs) and police referring students to the DA who then might refer them to a diversion program, I propose that teachers be able to refer students directly to diversion programs.
Though direct referrals may create some logistical difficulties, such programs may ultimately be more efficient than staffing programs at individual schools. A RAND study from the Pittsburgh School District showed that implementing a full-fledged restorative justice program in schools only provided some of the intended benefits–or no benefit–over schools which did not. The Pittsburgh program used professional development staff and ongoing teacher coaching to adopt eleven specific practices to use with students. Practices involved things like fair and transparent communication guidelines, student meeting circles to build empathy and understanding between students, and restorative conference meetings between teachers, students, family, and trained personnel. Some of the outcomes the study measured were suspension, academic performance, and student feelings of safety and community. The study showed that schools that implemented the restorative practices significantly reduced suspension rates and improved student feelings about their schools. The program did not, however, result in increased academic performance.
The Pittsburgh study had two limitations: first, the treatment group (schools with onsite restorative justice programs) had difficulties rolling out the program with all the intended personnel, and, second, the researchers did not have access to information about control group (schools with no change) interventions. Control group schools may have had some teachers resorting to restorative justice practices on their own, which would mitigate the perceived benefits in the treatment group.
While this study couldn’t find that a full-on restorative justice program would deliver the desired results, that isn’t to say restorative justice doesn’t work. On the contrary, it suggests that small changes by teachers and faculty deliver most of the benefits, without the need to resort to more highly trained people in every single school. If schools do not already have counselors and social workers at their disposal, then staffing and training its own restorative justice specialists is most likely less cost-efficient and less effective than being able to refer students to a county-level program.
A better use of resources at the school level would involve training teachers to resolve disputes interpersonally, to seek constructive and non-punitive results, and to look for signs that a youth may need help before it erupts into criminal behavior. Teachers should be trained to avoid “zero tolerance” mindsets and instead focus on principles such as fostering trust with adults and promoting positive peer influence. If teacher interventions are ineffective, teachers should be able to refer students to an outside program to work with offenders and community stakeholders to repair the harms of crime.
California has already used pre-trial diversion programs to reduce convictions and recidivism, and we already have a statutory framework which protects defendants’ rights if they are able to participate in diversion programs. However, eligibility for pretrial diversion remains limited only to the least grievous offenses and are mainly focused on drug and mental health treatment. Restorative-justice-based programs hold potential to benefit a wider range of people, but only a few counties in the state have them at all. Accordingly, eligibility requirements should be extended to the majority of crimes committed by students, and restorative-justice-based programs should be made available statewide. And at the school level, it is perhaps not necessary to have complex programs with well trained staff and specific protocols unless the goal is to reduce suspensions. General restorative justice interventions by teachers may be sufficient to achieve better feelings of community and trust, and where those interventions fail to prevent crime, a county-level program would be more efficient and effective.