News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Proposed legislation would increase opportunities for juvenile diversion

capitol-building-415839_1920The majority of adolescents in Massachusetts, at some point, engage in behaviors that could subject them to delinquency proceedings in Juvenile Court. Although most of those adolescents are unlikely to engage in that type of behavior more than once or twice, even those who are otherwise not at risk for reoffending are significantly more likely to reoffend once they are arrested, charged, and processed in juvenile court.

Diversion programs provide an alternative to the court system. In diversion programs, through combinations of counseling, community service, restorative justice principles, or other programming, juvenile behavior is addressed in a manner that keeps youth out of court and provides them with services that ultimately improve their outcomes, including a decreased likelihood of reoffense and increased access to employment and higher education.

Juveniles can be diverted from the court system by a number of decision-makers including police, clerk magistrates, district attorneys, schools, and judges. Currently, judges can only divert juveniles who are charged with a limited number of offenses. Earlier this month, the Massachusetts State Senate passed Bill S.2942, An Act Promoting Diversion of Juveniles to Community Supervision and Services. This legislation, if passed by the House and put into effect, would significantly expand the number of offenses for which a juvenile is eligible for diversion, to include certain motor vehicle offenses and certain assault and battery charges with mitigating factors, such as no serious injury. Expanding eligible offenses gives judges more leeway to consider the circumstances surrounding an offense in making a decision to divert, and giving juveniles better access to diversion programs. When a juvenile is diverted by a judge pre-arraignment, no criminal record is created.

In recent years, Massachusetts has made significant strides in reforming the juvenile justice system. In 2018, the legislature passed a criminal justice reform act that included many significant juvenile law reforms, including excusing first-time minor misdemeanor offenders from the delinquency system. In 2020, the Supreme Judicial Court clarified that even if a juvenile commits multiple minor misdemeanors in a single incident, they are still considered a first-time offender, and are not subject to delinquency proceedings. Last fall, the state launched a pilot program to gather information about juvenile diversion and develop and refine a diversion model, with the intention of implementing the model statewide. Doing so is likely to ultimately improve outcomes for justice-involved youth.

Legislation is only one step towards ensuring that diversion is widely available. Research has shown that no matter the availability of diversion, at every decision point, white youth are more likely to be diverted than Black and Hispanic/Latinx youth. Studies also suggest that youth are more or less likely to be diverted based on where in Massachusetts they live. Addressing these disparities in a system where individual decisionmakers with personal biases divert youth on a case-by-case basis is a critical step in ensuring that all youth have access to diversion programs. A common statewide structure for implementing diversion has the potential to lessen disparities, though it may not eliminate them entirely.

Nonetheless, the recent Massachusetts Senate bill is a crucial step in expanding youth access to diversion. If passed by the House and implemented equitably, the legislation is likely to result in fewer juvenile delinquency cases and, therefore, decreased juvenile recidivism. Hopefully we will see this new legislation put into effect soon.

If you have been arrested or are facing criminal or delinquency charges, contact our criminal defense attorneys at (617) 742-6020.

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