Chapter 8 - Police and Diversionary Measures Flashcards
A practice based on a philosophy that justice, rehabilitation, and reintegration are better served by keeping most people out of the formal justice system.
Diversion
The decision-making power that police and other criminal justice personnel (judges and crown prosecutors) have to make decisions with minimal legal requirements.
Discretion
Mechanisms and processes by which the state keeps track of people and monitor their behaviour.
Surveillance
Factors affecting criminal or youth justice processing that are outside the jurisdiction of law.
Extralegal Factors
Exists when racial differences in law enforcement surveillance activities cannot be totally explained by racial differences in criminal activity or other legally relevant factors.
Racial Profiling
Refers to disproportionate minority police contact because of frequent criminal activity, invovlemtn in serious crime, or persistent criminal offending.
Differential Involvement
Refers to disproportionate minority police contact because of systematic inequalities in the justice system or discriminatory practices by justice personnel, including the police.
Differential Treatment
Youth with characteristics and/or living circumstances that are known to be criminogenic.
High-Risk Youth
The detrimental consequences for an individual of having a negative label or definition attached to his or her behaviour.
Stigmatization
A variety of programs under the YOA, such as mediation, designed to prevent future crime and divert youth from the courts.
Alternative Measures
The principle that whatever action is taken should have the least impact on a youth’s freedom.
Principle of Least Possible Interference
Under the YCJA, refers to processing accused young offenders by means other than through the youth or adult justice system.
Extrajudicial Measures
Used under the YCJA when cases proceed to court and the provisions provide for specific sanctions and rules regarding the use of more formal diversionary programs.
Extrajudicial Sanctions
An important component of the mediation/healing process, based on the belief that a productive response to crime is to encourage all affected parties to participate in conflict resolution.
Reconciliation
A form of conflict resolution that involves a third party, usually a person with professional skills, to assist two parties with a grievance or unresolved matter to reach a mutually agreeable solution.
Mediation
Payment in money or kind to compensate victims for their loss.
Restitution
A tendency for places seemingly designed to reduce the number of people in the justice system to inadvertently result in more people under state control.
Net Widening
Police Contact and Decision-Making
- Police have direction in their decision-making
- In cases of youth crime, police have a number of options
- The YCJA indicates that officer “shall” consider warning rather than formal sanction
- The significance in YCJA and word ‘shall consider’ does not mean that an officer fails to take an action or program referral that he or she subsequently lay a charge
Police Options YCJA
- Issues a warning (formal or informal) and let the youth suspect go
- Arrest the youth and hold in custody
- Question the youth suspect
- Write up a report and release the youth suspect
- Charge the youth suspect with an offence
- Release the youth suspect with conditions
- Referral of the youth to a diversionary program or youth justice committee
- Hold youth suspect in detention for 24 hours until a “bail” hearing can be held
Extralegal Factors
- Supportive ‘good’ families more likely to be dealt with by diversion.
- Some of the research seems to suggest that young people who seem to have a supportive background are more likely to be dealt with this in this manner
Legal/Extralegal factors Affecting Police Discretion
- Seriousness of the offence and prior arrest records
- Prior police contract (“known to police”)
- Previously breached a probation order
- Rules of the Criminal Code
- Also restricted by rules of the code. Criminal code sections regarding police discretion relate to detaining versus releasing with promise to appear after a youth is arrested.
Extralegal Factors
- Race: minority youth are more likely to be arrested and have a record
- Demeanour and Race: A suspect’s behaviour, attitude, and appearance determine the outcome. Police may perceive all Blacks/Aboriginal youth are “difficult”, leading to a self-fulfilling prophecy.
Disproportionate minority contact with Police
- Disproportionate involvement suggests that minority groups are more likely to be engaged in criminal activity
- Disproportionate treatment refers to the presence of discriminatory practice by justice system personnel
Age and gender
- Gender differences in charging depend on age and nature of the offence
- Older boys are more likely to be charged and go to court than older girls, but younger girls are more likely to be charged and go to court than younger boys
Why diversionary measures?
Why diversionary measures?
- Stigma: there are negative consequences to being labelled a youth offender
- Least possible interference: emerges as an idea in YCJA to decrease stigma
- Extrajudicial measures — police: Under the YCJA, this involves processing the offender by means other than the courts. These are less formal and are ordered by police and other justice officials
- Extrajudicial sanctions (punishments) courts: These are mandatory actions ordered by the court. These use formal diversionary programs.
Youth Justice Committees
- Give advice on extrajudicial measures —like diversion
- Facilitate reconciliation between offender and victims — RJ practices, VOM or VOR
- Coordinate youth services and justice system
- Advise on compliance
- Give public information
Referral and success rates vary
Diversionary Measures Issues
- Police accountability: concern police discretion has enabled increased use of detention and the imposition of release conditions that are further criminalizing youth — the court puts more conditions on youth and sets them up for failure.
- Police discretionary decision-making: appears contrary to YCJA objective of reducing use of custody
- Net-widening: tendency for policies intended to reduce the number of people in the justice system to actually increase the number
- Diversion is formalized: therefore creates a justice system that still labels the youth in a different manner
Net Widening
- Largely based on police discretion through use of extrajudicial measures
- A consequence of participating in Extra Judicial Measures is requirement to take responsibility for actions. Alternative if youth wishes to not be involved in EJM is to go to court, plead not guilty and be processed accordingly. Changes to pre-trial detention imposed by Bill C-10 requiring record keeping for EJMs so they maybe used to justify detention mean nature of diversion is tainted. In its origin suggested a young person could avoid stigma of criminal / further consequences if s/he complied with diversionary measures required. Changes mean that despite compliance previous interventions can be used against youth in future.
- Warnings & cautions are formal. There is a record kept by police agencies.
- Bill C-10 changed conditions for pre-trial detention to include a pattern of EJMs (extrajudicial measure), or a pattern of guilt, formalizing need for record keeping
Problems with Mediation, Reconciliation, and Conferencing
- Businesses may not participate due to employee costs and other factors
- Some offenders have been sued in civil court for costs accrued by businesses
- Shaming the offender: is inherit in the restorative justice practice of having a victim and offender meet. This must be approached in a positive or reintegration perspective rather than from a negative or disintegrated perspective. The goal is to not punish the offender by shaming or humiliating him or her. Instead the shame is supposed to take the shape of remorse and the desire to restore the relationship with the victim.
Strengths/Criticisms of Diversion Programs
- Restorative justice: needs of victims can be addressed
- Closure for victims*
- Restitution for property offences - proportionate to your ability to pay
- Harm to victims and communities can be addressed
- Community can be involved in the justice process
Critics of Diversion
- Offender’s shame and stigma may persist
- Bureaucracy of programs
- Inequality of access to programs
- Some programs only deal with minor offences
