Diversion in the Youth Justice System | House Interim Study | Aug. 27, 2024

OK Policy’s Youth Justice Policy Analyst Jill Mencke spoke with lawmakers on August 27, 2024, about the state’s youth justice system. Mencke explores the challenges, disparities, and opportunities within the system, advocating for effective reforms to empower youth and families across Oklahoma. The following is a transcript of her prepared remarks. The full video of the interim study — IS-24-076, A Study on the Youth Justice System (Rep. Jason Lowe) — can be viewed at the Oklahoma House website. 

Comments from Jill Mencke, Youth Justice Policy Analyst for the Oklahoma Policy Institute:

Hello everyone, my name is Jill Mencke and I am the Youth Justice Policy Analyst at Oklahoma Policy Institute. At OK Policy, we use data-informed approaches to build toward an Oklahoma where all families can thrive. My work is informed by my time as a family preservation specialist, where I provided community based services for families involved in the child welfare system. I saw firsthand the struggles that Oklahoma families face, and how few resources we have to empower families and support kids as they grow up. Similarly in the youth justice system, my experience has been informed by the many families and children who say their needs have not been met by this system, and that they were desperate for something different.

That brings us to today. I and the other presenters today will be talking in depth about diversion and their experience with the youth justice system, and how we can better use this tool to keep kids away from the prison and court system, and empower them with the tools they need to succeed in life. 

So going over my agenda for this presentation, I will be talking about how the juvenile justice system works and why we have it, discuss what diversion is and why we use it, review how other states use diversion, and end the presentation with what we could be doing differently in Oklahoma to better utilize diversion. 

So, what is the purpose of the juvenile justice system? While it’s hard to pin down an exact definition or purpose of what the juvenile justice system does, what I can say is there are many different pieces and system actors at play. The juvenile justice system is composed of law enforcement officers, the court system, the Office of Juvenile Affairs, county government, community partners, service providers and agencies, and the youth themselves.

In an ideal world all of these pieces would work together toward a singular goal, with prevention and treatment being the primary methods the juvenile justice system uses to address juvenile delinquency. However there are other pieces of this system that might set their focuses on other goals, like public safety, justice, or carrying out the letter of the law. While all of these are worthy goals, this system does not always agree on what should be the top priority. I point out the Office of Juvenile Affairs mission statement here, because truly, all of these goals can work together to prioritize their own goals, while valuing prevention and treatment for Oklahoma youth as a top priority. 

While we have had a juvenile justice system since even before 1969, I started there to show how this created the framework for the youth justice system we know today. 

Shortly after Oklahoma created the Oklahoma Children’s Code, the federal government passed the Juvenile Justice and Delinquency Prevention Act. This act made federal funds available for states that complied with a number of reforms. However, Oklahoma was one of six states that refused to accept grants at the time, shielding them from federal scrutiny and oversight. Oklahoma would go over 20 years without accepting federal funding for juvenile justice and delinquency prevention until 1996. 

Shortly after the JJDPA was enacted, the infamous Terry D lawsuit was filed on behalf of seven teenage plaintiffs, which led to the discovery of horrific conditions faced by children in state custody and cared for by institutions. This lawsuit was a catalyst for several changes to Oklahoma’s youth justice system, including the establishment of OCCY in 1982 and the closure of several facilities in the state, and changes in practices after a federal court ordered a consent decree on how the state could treat youth in state custody in 1984. 

This consent reduced the number of state detention beds from 1,200 to 220 and cost the state millions of dollars to correct the widespread abuse of youth, and to provide adequate programming for young people.

The Terry D lawsuit was still not resolved by the time the Youthful Offender Act was enacted in 1994, which introduced the ability to transfer youth to the adult system for offenses committed as children. This law still plays a major role in how the youth justice system functions today. Under this law, youth may be tried as a “youthful offender” depending on age and nature of the offense. 

The influence of the Terry D lawsuit also led to the creation of the office of juvenile affairs (OJA) in 1995 to be the sole facilitator of youth justice issues and programming, where previously, the department of human services (DHS) was in charge. This wouldn’t be the end of civil rights lawsuits in the name of youth justice, though.

In 2004 a second civil lawsuit was filed against the Lloyd E. Rader Juvenile Detention Center, less than 6 years after the conclusion of the Terry D lawsuit in 1998. The federal investigation eventually led to lengthy and costly litigation, United States v. State of Oklahoma. Records showed that juveniles and staff members at Rader reported 1,277 assaults during a span of just three years.

This lawsuit eventually led to the closure of the L.E. Rader Juvenile Detention Center in 2010, and in the same year, the legislature formed the Juvenile Justice Reform Committee. Although the committee made other recommendations such as expanding evidence-based community programs, effective mental health and substance abuse treatment, and life skills training programs, ultimately, budget cuts rendered most of these improvements impossible, while simultaneously requiring the reduction of supports already in place for youth.

Budget shortfalls meant that improvements to the youth justice system had to come from legislation rather than programming, which in 2015 led to Oklahoma establishing juvenile competency requirements, and added “developmental immaturity” as one of the reasons for  finding a young person incompetent. However, Oklahoma still lacks remediation services for youth found incompetent.

Then in 2020, the Juvenile Justice Protection Bill was enacted, which prohibits children 12 years of age or younger from being placed in a state juvenile detention facility “unless all alternatives have been exhausted and the child is currently charged with a criminal offense that would constitute a felony if committed by an adult and it has been indicated by a risk-assessment screening that the child requires detention.”

So how does this system work today?

There’s the pre-arrest period, which essentially means that a young person has not yet been arrested or referred formally to the Office of Juvenile Affairs. I mention this because this is often a decision point for law enforcement to make a formal referral or take a child to detention. A child in the youth justice system can receive services without detention being used. 

Next comes a referral. A referral is a formal request to the Office of Juvenile Affairs that a young person is in need of services related to their delinquency. This stage may involve detention at law enforcement’s discretion. A referral can also come directly from a school or a parent, but 85 percent of the time, referrals are made by law enforcement. This makes law enforcement a very natural decision point for offering diversion, but we can’t speak to how often this happens based on our data.

The referral may be elevated to court involvement, which I’ll talk about in a moment, or referred directly to services. At this stage, a juvenile services worker might refer a young person to mental health or substance abuse treatment, counseling, or programming that might help the young person learn to make better decisions, or take better care of themselves. 

After a referral, a young person may be given recommendations for treatment from a juvenile services worker and living in their community, or they may be in detention waiting for their case to be heard in court if they have committed an offense deemed worthy of adjudication, or formal processing in court.

A case may be court-involved without adjudication, or an official judgment being made. A judge might refer youth to a program similar to a juvenile services worker, but this has the extra layer of process and procedure behind it. Many youth do not understand what is happening in court when they are subjected to it, or understand the consequences of what’s happening to them.

There is also the added pressure of services being required for youth who are court-involved, and they are not as bought in to the process because a) they don’t understand it, and b) they don’t have a say in their treatment options. This stage would also be a natural decision point to offer diversion and it often is, but we can’t speak to what those services look like. 

This leads us to the treatment plan stage, which might be better known in the criminal legal system as a “sentence.” However in the youth justice system, they do not use sentences, but rather treatment plans to set youth on a new path. This is when a young person may complete services they have been recommended to by a juvenile services worker, or required to complete as a part of court involvement, and this may involve placement. Placement refers to when a young person might complete their treatment plan in a Level E Group Home, or the Central Oklahoma Juvenile Center, or COJC. This means that they are completing their treatment plan outside of their home or community in a more secure environment. 

And finally, that leads us to re-entry, which may be part of a treatment plan, but I’m using it to refer to when a youth is back in their community after completing their treatment plan or stay in detention or placement. Sometimes this involves formal programming and sometimes it does not. 

So keeping all that in mind, I’ll go more in depth about the racial makeup of this system. This graph shows us our state population with the yellow bars, youth referred to the Office of Juvenile Affairs in the blue bars, and youth adjudicated in court with the red bars.

These are broken down into percentages of the population that belong to a certain race or ethnicity, which you can see on the bottom of the graph. One very important takeaway here is that Black youth are massively overrepresented in both referrals and adjudications.

Black Oklahomans make up less than 1 in 10 people in the state’s population, but over a quarter of referrals, and a third of adjudications in court. We also see some disparities in the American Indian or Alaska Native and Hispanic populations but not to the same extent that we see with Black youth. There is no evidence to support that Black and Indigenous youth of color engage in risky behavior or commit crimes at higher rates than their peers, which suggests that Black and indigenous youth of color are treated differently in this system, and this has not improved since we started tracking this data. 

What can we do to fix this? As I mentioned before, the purpose of our youth justice system should be to create pathways to success to prevent delinquency and treat youth who commit crimes. Our youth justice system, with all of its moving pieces, although well-meaning, does not always create pathways to success for youth. That’s exactly why I’m talking to you about diversion today.

So, what is diversion? Using the definition that the Office of Juvenile Affairs uses, diversion is when a referral to services occurs outside of the juvenile court system, although for the purposes of our study today, diversion from the court system during the court involvement stage can also be utilized.

Why use diversion?

Diversion is often more suitable for youth who commit status offenses, or youth who are experiencing mental health distress. A status offense is not necessarily a crime, but is prohibited under the law because of a youth’s status as a minor. This includes skipping school, running away, or violating curfew. We know from our research that on a national-level, detention is used too often for youth who pose minimal risk to public safety, such as status offenses. While in Oklahoma we may utilize detention or the court system to address status offenses at a lower rate than the rest of the country, we do still use it, and that’s a problem. (Status offenses make up 1.76 percent of adjudicated offenses or 61 individuals.)

We also know that formal involvement in the justice system can be counterproductive to public safety and youth well-being. Once arrested, youth who are formally charged in juvenile courts do far worse than those whose cases are diverted from court. Research studies consistently find that being arrested in adolescence substantially increases the likelihood of future justice system involvement, and it reduces future success in school and work.

Further, we know that involvement in the justice system is often subject to biased decisions, especially in the case of when to use detention. We also know decisions at the early stages of the justice system process – those that involve diversion as an alternative to arrest, or to formal processing in court – suffer from substantial biases against youth of color, and that these biased decisions around diversion are a factor in the disparities we saw earlier. 

If the negative outcomes youth experience as a part of justice system involvement is unconvincing, studies also find that youth diverted from the justice system experience better outcomes than youth who are not. They experience far lower likelihood for subsequent arrests, are less likely to be incarcerated as an adult, commit less violence, have higher rates of school completion and college enrollment, and earn higher incomes in adulthood.

So let’s try to examine how often we use diversion in Oklahoma. As I mentioned earlier, diversion is a very loose term, and how we define it in Oklahoma and how we look at it in the data offer different takeaways. What we do know is that we could certainly utilize formal diversion more than we do currently. 

Looking at all referrals to OJA, we can see that 73 percent of referrals to OJA are not adjudicated, or given a formal judgment in court. This is what we might call “informal diversion” but it’s hard to say if all of these cases that were not adjudicated received diversion services. Or that those that were adjudicated didn’t receive diversion. But we can dig deeper by looking at cases that were misdemeanor offenses. 

Of all referrals to OJA, more than half, or 52 percent of referrals were for misdemeanor offenses. Of those, a quarter are adjudicated. Again we cannot say that all these misdemeanor offenses that were adjudicated did not receive diversion but it gives us an idea. 

Furthermore, we know that of those who have adjudicated misdemeanors, that almost half do not have a felony offense, and more than half had their very first interaction with OJA. This piece is particularly troubling, because we have programs in OK specifically designed for first time offenders, but based on the data we have on how often it’s utilized, not every first time offender is offered this programming. This area in particular is where we have immense opportunities for diversion. 

I’m sure at this point you might be wondering what types of offenses are being committed, so let’s take a look. 

This chart shows you the top 10 categories of offenses across all misdemeanor cases that have been adjudicated or not in our youth justice system with no prior felony charges. So these are just misdemeanor cases that occur most frequently. We have this represented by how they were given to us, but you can see assault and battery, drug possession, threatening acts of violence, destruction of property, assault again, obstruction of a public officer, and possession of drug paraphernalia. When comparing the list of the top 10 offenses, the list is almost exactly the same, with the exception of misdemeanor possession of a firearm.

So, what does this tell us?

With these two lists being almost exactly the same, we can conclude that youth who commit misdemeanor offenses receive different treatment for the same offense. This is especially troublesome when we’re talking about unnecessarily subjecting youth to the court system, when a referral to mental health treatment, social services, or programming to help youth succeed would be more appropriate. 

Just to drive home the point that we could use diversion more than we do, this slide compiles data about final legal status. These are cases that OJA has seen through to a final legal status, and does not capture all youth who receive formal or informal diversion, but it gives us an idea. I have bolded here the final legal statuses that OJA considers to be diversion.

I mentioned earlier that a good deal of misdemeanor cases were first time offenders, and that not all of them receive the same access to this program, and as you can see here, 132 individuals went through this program despite 604 individuals having their very first interaction with the youth justice system. This also does not capture all of the cases that might benefit from diversion if this was not their first offense. Also taking a look at deferred filing and informal adjustment, we don’t know exactly from the data what services youth did receive or what was needed. 

What can we do differently? What are other states doing?

First, let’s look to our northern neighbor, Kansas. Kansas created a new diversion option, the Immediate Intervention Program (IIP). This mandated the use of diversion for youth accused of first-time misdemeanors and authorized it for all misdemeanor offenses. This program saw 2000 referrals to this program as a diversion from formal court processing, and saw a 92 percent completion rate while also avoiding a new adjudication or conviction. 

Now let’s look at South Dakota. South Dakota passed a comprehensive juvenile justice reform bill that made diversion the default option for first time nonviolent misdemeanors as well as all status offenses, while also providing local courts with a financial incentive for each young person that completes diversion. Since then, South Dakota has increased the number of youth who are diverted more than 50 percent, and it sharply reduced the failure rates of youth in diversion. 

The total number of youth completing diversion successfully has more than doubled from 970 in 2016 to 1,983 in 2022.

Indiana also passed comprehensive juvenile reform recently. They created a grant program that provides state funding to support local diversion programs. The law required the state to develop parameters to guide the operation of new diversion programs and ensure that the programs follow best practices, and create a data collection and analysis process to guide the development of diversion programs and to track outcomes. 

Finally, looking at Kentucky, which passed a comprehensive juvenile reform law in 2014. This law mandated diversion for youth accused for first-time misdemeanor offenses, similar to Kansas and South Dakota. The one exception here is this law allows judges and prosecutors to override the mandate based on the circumstances of each case. Since its passage, the share of juvenile cases diverted statewide in Kentucky increased from 41 percent in 2013 to 60 percent in 2020. 

Not every solution that other states implement is the right fit for Oklahoma, but we need to explore other options for misdemeanor diversion, because the law is not being applied equally for all youth, and that’s a huge problem, and it means our system is not working as intended, to apply equal justice under the law. So how can Oklahoma begin to use diversion differently?

We can follow the lead of other states, not just the ones I mentioned, and create uniform rules that mandate diversion for low-level misdemeanor offenses, so that young people can be treated equally in the justice system. This can help to correct the problem of overrepresentation of black and indigenous youth of color, and also allows us to spend less money and time in the court system. This would be a common sense reform that we could see tremendous benefits from. 

Furthermore, we can create new investment opportunities for Youth Service Agencies, who you will hear speak today, to create and implement new diversion programs and strengthen their existing programs. Some ideas for new programs include credible messenger mentoring, or restorative justice, which can still hold youth accountable while being more appropriate for children. 

The bottom line is that we do not use diversion programs in our state as much as we could, and considering the burden families and children face, there is so much more that we could do differently to serve them better.