In July 1978 the Washington State Legislature passed a new Juvenile Justice Act. The new law revised many facets of the Juvenile Justice System. The one we are concerned with is what happens when a youth is charged with a minor offense. Instead of appearing formally before the Juvenile Court, the youth is "diverted" and seen by a Community Accountability Board.
What is Diversion?
Diversion involves the handling of minor juvenile offenders outside of the juvenile court. Juveniles under the age of 18 who are arrested for offenses up to and including certain class C felonies are typically eligible for Diversion. After making an arrest, the police will refer the case to the local Prosecuting Attorney or designee where it is reviewed to determine legal sufficiency. If the case is legally sufficient it will be sent to a Diversion Unit. The case is thus diverted from the court.
What is a Diversion Unit?
A Diversion Unit is usually made up of professional and citizen volunteers. This combination of participants is responsible for ensuring that the juvenile offender is held accountable for his or her criminal behavior. The professional staff member(s) of the unit are responsible for information gathering and for ensuring that due process is followed throughout. The Citizen volunteers act as Community Accountability Board members to determine the terms and conditions of the Diversion Agreement.
Diversion Hearing and Agreement
The Diversion Unit will schedule a meeting with the juvenile offender, advise him/her of his/her rights, discuss the nature of the crime and the surrounding circumstances. The Board will determine the appropriate consequences (penalty) for the juvenile offender and write the conditions of the penalty in the form of a contract known as the Diversion Agreement, which may include restitution to the victim for his/her losses, community service (volunteer work in a public or non-profit agency), fines, and/or a counseling, informational, or educational session. The juvenile is expected to fulfill the terms of the Diversion Agreement within the allotted time or the Diversion Unit will refer the case back to the prosecutor for formal court action. Under specified conditions, the juvenile may be counseled and released without further penalty.
Victim's Compensation and Civil Action
When a juvenile's crime has caused a financial loss to a victim, replacement of that loss (restitution) will normally be required by the Diversion Unit. The Diversion Unit will contact the victim to determine the amount of such loss and assess the juvenile's ability to pay. It will set the restitution amount based on these two considerations and determine a schedule for payment.
The Diversion Unit deals only with criminal charges; the victim retains the right to initiate civil court action for additional damages. In shoplifting cases, a special statute allows the victim store to sue the parents regardless of the actual loss.
What Are the Juvenile's Rights?
The Diversion Unit is obligated to inform the juvenile offender before entering into a Diversion Agreement of the availability of free legal counsel though the juvenile may seek legal assistance from any counsel of his/her choosing. Prior to signing the Diversion Agreement, the juvenile may request that his/her case be heard in court before a judge. While the Diversion Unit does not determine guilt or innocence, the juvenile must acknowledge his/her willingness to participate in Diversion and to accept responsibility for the crime. While this is not a conviction, it will become part of the juvenile's criminal history.
What Are the Advantages of Diversion?
Diversion is more protective and informal. Diversion is also more convenient, less expensive, and less time-consuming than going to Juvenile Court. The Diversion process is confidential; unlike the court proceedings which are public. The Diversion process is private.
Notice About Diversion or Court
If you choose to go to Court, or if you miss more than one appointment for an interview or more than one appointment for an Accountability Board, your case could go to Juvenile Court. If you fail your Diversion Agreement, your case will or could go to Juvenile Court.
You should be aware of the following information about cases that are returned to the Juvenile Court:
- Juvenile Court is a very formal process that can require up to five different appearances, although usually not that many are required. All cases must be seen at the Juvenile Court in Port Angeles. There is travel expense and time lost from schools and work as all appointments are from 9:00 a.m. to 4:30 p.m.
- You may not be entitled to a free lawyer as only persons in danger of being placed in detention are offered a free lawyer. You can act as your own Attorney or hire your own Attorney.
- If you go to Juvenile Court and are found guilty:
- You will be assigned a probation officer (at times you may be contacted weekly--often at school).
- You will probably be given Community Service hours.
- You may be fined.
- You will have to pay a mandatory Victim Restitution Fee of $75.00 for misdemeanors and $100.00 for felonies. If there is more than one charge in your case you can be charged for each offense. (This is a state mandated fund for victims. All adults and juveniles found guilty must contribute to the fund).
- You will have to pay restitution to a victim if there was damage to persons or property or a stolen object was not returned or there is a loss in any way to a victim.
- If your case is returned to Juvenile Court and you do not meet the terms of the Court Order you can then be given detention time for up to 30 days.
- You will have a conviction on your record and the record remains open until sealed or destroyed by court order.
- Diversion is a different way of dealing with juveniles who are charged with an offense. You do not go to court and there is no trial before a judge.
- A Diversion agreement is a contract between you and the Diversion unit. A Diversion agreement may require you to do certain things, such as community service, attend counseling, informational, or educational sessions, pay a fine, or make restitution, but you cannot be sent to jail. Under certain circumstances, you may be counseled and released, which means no further action will be required of you.
- If you do not follow the Diversion agreement, the prosecutor may bring you to a hearing for the offenses with which you are charged. If you do not appear at the court hearing, the court may order that you be arrested.
- You may ask the court to seal your file on this offense if you have not been charged with another offense for 2 years after you complete the terms of your Diversion agreement.
- When you are 18 years old, you may ask the court to destroy all records on this offense if your criminal record consists of only one Diversion and 2 years have passed since you completed the Diversion agreement.
- If your file contains more than one referral, you may ask the court to destroy your court file, social file, and all records if:
- You are twenty-three year of age.
- You have not been convicted of a felony or a serious crime.
- There are no criminal proceedings pending against you.
- Information sent to the Department of Licensing will not be sealed or destroyed.
- You can talk to a lawyer about whether you should participate in Diversion or go to court and you will not have to pay for this legal service if you cannot afford it. A lawyer can review the police reports, explain your rights, and explain the law.
- If you want a lawyer present with you at a Diversion conference, you must hire a private lawyer at your own expense.
- You do not have to participate in Diversion. If you do not participate your case will go to court if charges are filed by the prosecutor. If your case goes to court, you can have a lawyer represent you, and you will not have to pay for the lawyer if you cannot afford it. If you are found guilty in court, the maximum penalty cannot be greater than the maximum penalty the Diversion unit may impose.
- If you are charged with a traffic infraction and agree to Diversion, the Diversion unit may notify the Department of Licensing. This may affect your driving privileges. A Diversion agreement signed for a traffic infraction will not result in criminal history. If you agree to enter into a Diversion agreement for a traffic infraction, a diversion agreement requires you to do community service or attend education or counseling sessions, and/or pay a fine. You do not have to participate in Diversion. If you do not participate, your case will go to court if charges are filed by the prosecutor. If your case goes to court, you can talk to a lawyer but you may have to pay for it.
- Diversion must notify the Department of Licensing when you sign a Diversion agreement for violation of laws relating to alcohol, drugs or any offense relating to a firearm. Notification will be provided within 24 hours of the signing of the agreement. The Department of Licensing will revoke your driving privileges and send a letter to you which will describe the actions required if you want your privileges reinstated. The Diversion unit will notify the Department of Licensing when you complete the Diversion agreement. This notification will make you eligible for reinstatement of your driving privileges.
Diversion and the Minor Juvenile Offender
The current Juvenile Code in Washington State went into effect on July 1, 1978. It provides for juveniles who commit crimes, run away from home, or who are abused or neglected.
Diversion involves handling minor cases outside of Juvenile Court in lieu of prosecution. It is the prosecuting attorney who decides whether or not a case is legally sufficient to be handled by Diversion. This depends on the type of offense and the number of times the youth has been handled by Diversion. Once a youth has committed more than one offense, he or she is usually considered ineligible for Diversion, and the case is referred to Juvenile court for disposition.
When a case is received by Diversion, an intake interview is set up with the offender and his/her parents. During the interview, the juvenile's rights are explained in detail. He/she may consult with an attorney at any point in the Diversion process. After this process is described, the juvenile must decide whether to go through Diversion or court. Once a youth agrees to go through Diversion, he/she appears before an Accountability Board.
Diversion is more convenient, less expensive and less time consuming than going to Juvenile Court. The Diversion Unit normally conducts its meetings in the evening or at a time that is convenient to the youth and his/her family. The Diversion process is confidential, unlike the court proceedings which are public. The Diversion Unit does not have the scheduling problems usually associated with the Court. Diversion is more protective and informal. The Diversion Agreement is not a conviction and only affects the youth's future if he/she comes back into the Juvenile Court System.
The purpose of the juvenile code is very clear: juvenile offenders must be held accountable for their illegal acts. It does recognize, however, that young people will make mistakes. It is for this reason that minor offenders are being diverted away from Juvenile Court and are required to be accountable to the community.
The Accountability Board
An Accountability Board is a group of community residents that meet with youth referred for Diversion. The boards determine the reasonable requirements that the community can expect of the offender. These requirements may include community service, restitution, fines, counseling, or information/educational sessions. It is hoped that through the board process, citizens from the youth's community can impress upon the youth the connection between his/her behavior and the effects on him/herself and the community. Consequently, the board can serve as a positive influence on the youth's future behavior.
The Accountability Board has the responsibility of determining how much and what kind of consequences are appropriate to the offense. This is accomplished by questioning the youth about the incident itself and any relevant issues that may pertain to the incident.
The number of times you will be requested to sit on Board hearings depends on the number of referrals received by the Diversion Unit. Out of the Board member pool, only three members are needed to make up a Board to hear cases on any given evening. The Diversion Unit schedules Board members on monthly calendars. Members are asked to notify the Diversion Unit of any conflict on the scheduled dates. An effort is made to distribute the opportunities as evenly as possible so all members can participate and no one is over-burdened. Hearings generally take thirty to forty-five minutes and up to three cases are scheduled per evening. New volunteers come to Board meetings as observers until they feel comfortable serving as an active member.
The Juvenile Diversion Unit requests that each new member commit at least a year (12 months) to the program. The reason for this is to ensure that the staff does not have to be constantly screening and training new members. In addition, the Boards will run much more smoothly if the Board members are familiar with each other and have had some experience. This does not mean that after a year you may no longer be a Board member, but that you will commit yourself to the program for at least that period of time.
One of the most important aspects of Diversion, and the major concern of both the parents and the youth, is confidentiality. An Oath of Confidentiality must be signed by Board members prior to each hearing. It is extremely important that Accountability Board members do not discuss cases outside of the Diversion office. A breach of confidentiality could result in a lawsuit and would be grounds for dismissal from the Accountability Board.
In addition, all Board members are required to fill out and sign a Clallam County Sheriff's Department background check form.
Benefits of the Board Process
Community members become active participants in holding young people accountable for criminal activity in their community. Members also gain insight into the problems of youthful offenders as well as the workings of the juvenile justice system. In addition, the juvenile offender is made aware of the direct relationship between the crime and the people affected by it (i.e., the community).
The Diversion Agreement
A Diversion Agreement may consist of one or more of the following:
Community Service Work
The most common element of a Diversion Agreement is community service. The Board assigns the youth a certain number of hours (up to 150 hours) that must be spent working for a non-profit organization without pay. If the youth is attending school, no community service can be required during normal school hours. It is the responsibility of the youth to contact the Diversion Office within 48 hours of the Board meeting to arrange a community service site.
Restitution is defined as financial reimbursement to the victim. It is limited to the actual loss incurred, such as damages for injury to or loss of property, or expenses for medical treatment for physical injury. When the amount of loss or damage is high, the Board sets a figure that the youth can reasonably be expected to pay during this period. Accountability Boards deal with only criminal charges. The victim retains the right to initiate civil court action for additional damages. In shoplifting cases, a special statute allows the store to sue the parents for up to $200 plus the cost of the item up to $500.
Fines may be assigned from 0-$100. In determining the amount of a fine, the juvenile's ability to pay, not that of his/her parent, is the primary consideration.
A Diversion Agreement may require participation in educational or informational sessions. Civic Responsibility, Anger Management and Drugs and Alcohol Information classes are offered. All youth aged 13-17 who commit drug-related or alcohol offenses are required to attend the drug and alcohol class. Youth will be notified of the time and date of their assigned seminar. Seminar fees of $40 are the responsibility of the juvenile and his/her parents.
5. Individual Counseling
A Diversion Agreement may require up to 10 hours of individual counseling, either with a counselor or minister. It is the responsibility of the youth to arrange counseling and provide verification of hours to the Diversion Unit.
After the Diversion Agreement is Signed
Once the juvenile agrees to the terms set by the board, and signs the Diversion agreement, he/she is supervised by the Diversion counselor while the contract is being completed. If the juvenile violates the contract, the case is sent back to the prosecutor who may refer it to Juvenile Court.
When a Youth Fails to Complete the Diversion Agreement
The case is referred to the prosecuting attorney and a formal court hearing may occur. If this occurs, the youth must receive written notice of the violation of the Diversion Agreement, and all evidence relating to it must be fully disclosed. The court termination hearing procedure must include an opportunity to speak and present evidence, the right to cross examine, and a written statement by the Court outlining the reasons for the termination.
Following the termination hearing, the charge against the youth is brought before the Court for adjudication. In such a case, the court can reimpose the terms of the original Diversion Agreement or set new requirements (such as additional community service work) for the youth to complete, and order a term of community supervision under a probation counselor. If the youth fails to complete the terms imposed by the court, he/she may be given detention time, up to thirty (30) days. In addition, the court file is open to the public and the youth's criminal records become public. Up until this point, the youth's criminal records are confidential.
Refusal of Diversion
Refusal of Diversion by the Accountability Board
The Accountability Board may make the decision to refuse to enter into a Diversion Agreement with a youth when appropriate. The following circumstances may be used to determine the refusal of services.
- A youth who has a court hearing for a criminal complaint pending.
- A youth who has failed to abide by the terms of an earlier Diversion Agreement and was referred by the Diversion Unit to the Prosecutor for termination.
- A youth with a weapons offense, assault offense, or felony as part of his/her criminal history.
- A youth who has previously rejected or been rejected by Diversion.
- A youth whose offense involved serious assaultive or threatening behavior, including domestic violence.
- A youth whose offense involved weapons.
- A youth whose offense has sexual overtones.
- A youth who, as determined by Diversion Program staff, needs a more extensive assessment.
- A youth who has "gang affiliation" as determined by law enforcement.
- A youth who refuses to cooperate or is hostile toward Diversion staff or Accountability board members.
- A youth whose offense is determined by Diversion staff to be excessively complex.
- A youth who fails to accept responsibility for his/her behavior and is not willing to discuss details of the offense.
- Any other reason as documented in the Diversion Unit's Policies and Procedures.
Rights of the Diverted Youth
A Diversion Agreement is a contract between the youth and the Accountability Boards. The contract states the requirements and completion date. Such agreements may be entered into only after the prosecutor has determined that probable cause exists that a crime has been committed and it is legally sufficient for filing criminal charges. Certain rights are guaranteed to youth. The Diversion Unit is obligated to inform the juvenile offender of the availability of free legal counsel, though the juvenile may seek legal assistance from any counsel of his/her choosing. At any point in the Diversion process, the juvenile may request his/her case be heard in court before a judge. While the Diversion Unit does not determine guilt or innocence, the juvenile must acknowledge his/her willingness to participate in Diversion and to accept responsibility for the crime.
Specifically, youth have the following rights:
- The right to a court hearing prior to signing a Diversion Agreement;
- Right to counsel at all stages prior to Diversion Agreement;
- Advisement about Diversion;
- Advisement that violation shall be the only grounds for termination of the Agreement;
- No additional punishment (outside of what is contained in the Diversion Agreement).
Diversion as Part of the Youth´s Criminal Record
Files kept on diverted youth may contain only:
- The fact that the charges were made;
- The facts of the offense;
- The fact that a Diversion Agreement was entered;
- Youth's obligation under the Agreement;
- Whether the youth met obligations.
Destruction of Records
A youth may ask the court to destroy all records related to an offense if his/her criminal history contains only one Diversion Agreement, he/she is at least eighteen (18) years old, and two years have elapsed since completing the Diversion Agreement; OR, if his/her criminal history contains more than one Diversion Agreement, he/she is at least twenty-three (23) years old, and he/she has not been convicted of a felony or a serious offense, and has no criminal proceedings pending.
Juvenile Diversion Informational/Educational Sessions
Seminars will be grouped according to the type of offense and appropriateness for each case.
- Community responsibility
- Self respect
- Temper tantrums
- Coping with fighters, bullies and troublemakers
- Violent emotions
Drugs and Alcohol
- Drugs and alcohol
- Drinking and driving
* For youth aged 16+