More details and resources
State Juvenile Justice Purpose Clause Evolution
Parens Patriae (generally 1899-late 1950’s) The Latin phrase literally means “father of the nation,” and refers to the state’s selection of the juvenile court judge to exercise the state’s role in protecting child/ren. This concept stemmed from the ‘child saving’ Progressive Era that sparked the dawn of juvenile courts at the turn of the 20th century. Juvenile Court purpose clauses often reflected language found in model legislation drafted by national work groups. The most common was The Standard Juvenile Court Act, which had six editions from 1925-1959. The child’s welfare and best interests of the state were highlighted.
Excerpt from The Standard Juvenile Court Act, 6th ed. (1959)
Section 1. Construction and Purpose of Act.
This act shall be liberally construed to the end that each child coming within the jurisdiction of the court shall receive, preferably in his own home, the care, guidance, and control that will conduce to his welfare and the best interests of the state, and that when he is removed from control of parents, the court shall secure for him care as nearly as possible equivalent to that which they should have given him. [Comment within the document after section 1]…the well-established fundamental purpose of courts dealing with children is to protect them and restore them to society as law-abiding young citizens….]
Resources for Parens Patriae
Due Process Reforms (1960’s-early 1980’s) In this stage, statutory amendments were also influenced by federal law, court cases and national work group recommendations for drafting legislation. Expert recommendations of the time revealed the recurring dilemma of protecting the public (punish or incapacitate youth) vs. protecting the child (rehabilitate in the community).
Purpose clause language found within recommended ‘model’ acts reflected a shift from the juvenile court serving the more general ‘best interests’ of the state to a more focused purpose of the juvenile justice system that protected the public safety. Model Acts looked to define the role of the juvenile court, prosecutors, and juvenile justice agencies with more specificity in statute, and organized into other parts of the code. Model purpose clauses typically recommended: "[The purpose of juvenile court is] to remove the consequences of criminal behavior from juvenile offenders and substitute a program of supervision and rehabilitation for them [different from adults], while protecting the interest of public safety and the rights of youth subject to incarceration..."
During this period, some experts encouraged diversion from juvenile court, specifically that status offenders should no longer be under the jurisdiction of the juvenile court unless (abused, neglected or) in need of services, and that allowable juvenile court interventions should be clearly stated and limited by law. Many state legislatures formalized roles and practices of the prosecutor and juvenile justice agency to standardize procedures, and also separated delinquent and status offenses by definition and jurisdiction. The hallmarks of purpose clauses of this era are formal procedural mandates for “due process” protections for juveniles, similar to those facing charges in (adult) criminal court. These include: right to notice of charges, right to an attorney, right against self-incrimination, right to cross-examine witnesses, standards of proof (reasonable doubt), separate transfer hearings, jury trials if permitted by the state (but not required), etc.
Excerpt from: The Legislative Guides for Drafting Juvenile and Family Court Acts (latest version, 1969, internet link not available)
Section 1. Purposes.
This Act shall be interpreted and construed as to effectuate the following purposes:
To preserve the unity of the family unity whenever possible and provide for the care, protection and wholesome mental and physical development of children coming within the provisions of this act;
Consistent with the protection of the public interest, remove from children committing delinquent acts the consequences of criminal behavior and to substitute, therefor [sic] a program of supervision, care and rehabilitation;
To achieve the foregoing purposes in a family environment whenever possible, separating the child from his parents only when necessary for his welfare or in the interests of public safety;
To provide judicial procedures through which the provisions of this act are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights are recognized and enforced. [due process]
Section 1. Purpose
This (act) shall be interpreted and construed so as to effectuate the following purposes:
To divert from the juvenile justice system, to the extent possible, consistent with the protection of the public safety, those children who can be cared for or treated through community-based alternative programs; [described in comments as being applicable to status offenses]
To provide non-criminal judicial procedures through which the provisions of this (act) are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other rights are recognized and enforced [due process] ; and
To separate a child from such child’s parents only when necessary for the child’s welfare or in the interests of public safety.
Resources for due process era
- Federal Laws: Juvenile Delinquency Prevention and Control Act (1968); Juvenile Justice and Delinquency Prevention Act (1974), (See OLRC's 'popular name' search tool, then from "jump to" on the right, click the letter "J" and scroll down to find version/s of interest; also see OJJDP’s chronology.)
- Cases: Kent v. US (1966), In re Gault (1967), In re Winship (1970), McKeiver v. PA (1971) also see Fourteenth Amendment Annotation, 2016 GPO (“The Problem of the Juvenile Offender” starts on p. 238 of the file)
- Uniform Juvenile Court Act, National Conference of Commissioners on Uniform State Laws (1968)
- Legislative Guide for Drafting Family and Juvenile Court Acts. Washington, DC: U.S. Children’s Bureau. publication #472, Sheridan, W. 1969.
- Model Acts for Family Courts and State-Local Children’s Programs Department of Health, Education and Welfare, 1974
Balanced and Restorative Justice (BARJ) (models introduced late 1980’s-early 1990’s) Since the due process era, states “got tough” on crime. Nearly all states amended transfer laws to specify when juveniles may or must be ‘tried as adults’ in criminal court rather than juvenile (civil) court, and prosecutors gained more statutory ability to affect consequences for youth violating the law. Crime rates went up, incarceration went up, and perhaps unexpectedly for some, youth incarceration did not seem to deter crime or recidivism, and societal costs rose on many fronts.
Some of the best thinking in the field culminated in Juvenile Probation: A Balanced Approach, which appeared in a special issue of the Juvenile and Family Court Journal in 1988 with alternatives to incarceration. The trend was eventually funded by OJJDP to develop the Balanced and Restorative Justice (BARJ) model which took hold in the mid to late 1990’s as juvenile crime rates were reaching the highest levels in history.
BARJ is described as a structured restitution model developed to reduce recidivism (and avoid incarceration whenever possible) with three main priorities that held juvenile justice systems accountable:
- Public safety;
- Accountability to victims; and
- Competency development of skills necessary for offenders to live law-abiding and productive lives.
As with BARJ itself, states with these purpose clauses usually retain elements of past categories, but are marked by shifts toward BARJ priorities within the purpose clause.
Resources for BARJ
Developmental Approach (model introduced in 2013) Punitive practices of earlier times did not prove to reduce recidivism as expected. From the earliest days of juvenile courts, model purpose clauses aimed to keep juveniles with their families, but today’s national experts more clearly express that incarceration should only be used to assure the public safety as a last resort, rather than as a punitive or hopeful deterrent. This category is marked by purposes clauses that mention the use of adolescent brain development or other research and data as a driver for juvenile justice decisions and planning, or that at least some interventions must be research- or evidence-based.
The Developmental Approach, released in 2013, is described as a framework for juvenile justice reform based on a foundation of scientific understanding of adolescent development brain research. The model lists seven hallmarks of the approach:
- Accountability without criminalization
- Alternatives to justice system involvement
- Individualized response based on assessment of needs and risks
- Confinement only when necessary for public safety
- Genuine commitment to fairness
- Sensitivity to disparate treatment
- Family Engagement
Most of these hallmarks have appeared in earlier reform models, but this approach fine-tunes many concepts. The concept of "fairness" seems to have evolved from JJDPA's first requirement to avoid disparate confinement in 1996, avoiding disparate contact in 2002, and here, avoiding disparate treatment. Using data and research to evaluate and justify actions and drive reform marks the paradigm shift.
More than 75% of states have statutory data requirements identified in its juvenile code. Juvenile justice data collection or use of data is also required by regulation and state program guidance or licensing requirements in many states. So far, only a handful of states have elevated requirements for the use of data and/or research to help guide the state’s juvenile justice system to its purpose clause/s.
Resources for the Developmental Approach
- Reforming Juvenile Justice: A Developmental Approach. Committee on Assessing Juvenile Justice Reform, Richard J. Bonnie, Robert L. Johnson, Betty M. Chemers, and Julie A. Schuck, Eds. Committee on Law and Justice, Division of Behavioral and Social Sciences and Education. Washington, DC: The National Academies Press, 2013.
- Implementing Juvenile Justice Reform: A Federal Role, National Academies of Science Engineering and Medicine, 2014
Writing Purpose Clauses
Standard instructions for legislators and regulators encourage writing purpose clauses after other sections of law are written to avoid the unintended consequence of trying to fit amendments for new sections into an old purpose.
Court Diversion Types
All states have statutory requirements for juvenile court intake processes. State legislatures designate roles or grant authority to juvenile courts, prosecutors, or other groups to oversee or make decisions about when and how situations that would otherwise meet criteria for juvenile court jurisdiction can be diverted. Court diversions include pre-petition ways allegations can be handled without involving a judge and post-petition ways that avoid a formal record of juvenile delinquency or status offense adjudication once the judge becomes involved.
For the sake of simplification, court referrals that initially involve custody or detention were excluded from the comparison, but processes are described in state summaries (double click on the state in the map.) Juvenile court intake and diversion statutes were compared, and typical pre- and post-petition diversion scenarios and agreement elements are described below. Actual practices may differ when local arrangements are permitted by law.
Pre-petition court diversions: alternatives to judicial involvement
Pre-petition decisions can include unmonitored referrals to programs (and the case is closed), or a consensual diversion agreement is developed and conditionally monitored by the DA, JCIO, or designee, which varies by state. A court referral, complaint, or petition for delinquency or status offense jurisdiction and adjudication can be held informally at the intake stage pending successful completion of negotiated terms and conditions. When terms of a written pre-petition court diversion agreement are not successfully completed, the agreement can be revoked and a petition may be formally filed or authorized to bring the matter before the judge for formal adjudication proceedings.
Typical pre-petition diversion decision scenarios:
States vary in whether and when the DA or JCIO has discretion to make the initial decision for pre-petition diversion with non-judicial handling. Decision-making roles are sometimes divided by offense, or both the prosecutor and JCIO have independent discretion to divert based on other factors.
States also vary in whether and when the DA or JCIO may file/authorize petitions independently or must seek approval or authorization of the other before the matter can go before the judge for adjudication proceedings. Since these complexities can impact the initial decision to divert, various state scenarios are described below.
Common pre-petition labels: refer and close, non-judicial handling, informal adjustment agreements, etc.
- The Juvenile Court Intake Officer (JCIO) or Prosecutorial Official (DA) makes a referral to a community-based program or determines sufficient supports are in place and the matter is closed without further court involvement or monitoring;
- In lieu of prosecution, the prosecutor conditionally diverts the matter and monitors compliance with a planned course of action that does not involve the court as long as there are no violations;
- The prosecutor diverts the matter to JCIO for ‘non-judicial handling’ or ‘informal adjustment.’ The JCIO typically negotiates agreements and determines successful completion, though some states also require that the DA consents to terms or provides for the DA to revoke the agreement or file a petition for adjudication without further JCIO screening or authorization;
- The prosecutor pre-designates its discretion to divert to JCIO, usually by category, and an MOU is developed;
- The JCIO screens the complaint or petition and decides to divert the matter from formal judicial involvement. The JCIO negotiates an agreement with terms and conditions that are monitored for success. Some states require that the JCIO seek agreement of the DA before diverting at times, usually only when felonious offense allegations are involved. States vary in whether the JCIO or DA can file/authorize petitions for adjudication.
- Once the DA declines prosecution, the JCIO may decide to offer non-judicial diversion or bring the matter before the judge by filing or authorizing the petition;
- The JCIO’s initial decision to divert with non-judicial handling is subject to review by the DA, who may decide to (file a petition and) initiate judicial action instead; or
- The JCIO makes the initial decision to divert, and (authorized non-DA) complainants are notified of the decision and have the opportunity to request that the DA review the decision to divert. When the DA decides to file a petition to bring the matter before a judge in these situations, the petition is not subject to authorization by the JCIO and pre-petition diversion would not occur.
Post-petition court diversions: alternatives to a formal adjudication record and/or alternatives to corrections
Post-petition court diversions can result from consensual agreements or by judicial decision. Terms and conditions are court-ordered in either case and intend to avoid a juvenile record of adjudication for delinquency or status offenses. JCIO's often serve as officers of the court and some states require that the DA consent to some diversions before they can be ordered.
Common post-petition labels: consent decree, pre-adjudication disposition, post-petition informal adjustment, pre-trial agreement etc. Diversion monitoring by a court designee (usually a JPO) is commonly labeled: informal probation (pending adjudication), being placed under community supervision, or under the protective supervision (of JPO), etc. Some states formally use the term "probation" only after adjudication.
Typical post-petition diversion scenarios:
- The judge conditionally diverts the matter awaiting the juvenile's successful completion of terms of a consensual settlement agreement. Elements of the agreement are court-ordered and often labeled a "consent decree." JPO's may be identified to monitor the agreement.
- The judge may decline or suspend adjudications and/or dispositions and dismiss the matter, or conditionally diverts the matter pending successful completion of alternative dispositions (sanctions) that are imposed by judicial decision. Adjudication and disposition hearings are generally "continued" pending success. When successful, a formal record of juvenile adjudication is avoided. If the juvenile violates terms and conditions of the order, formal adjudication and disposition hearings proceed.
Court diversion: typical terms and conditions
- Allegation response or plea: The juvenile must (substantially) admit to allegations, indicate they do not deny allegations, or that they will not contest alleged facts of the case, depending on the state. For post-petition court diversions, states may also require judicial acceptance of a guilty or no contest plea, formal findings of fact, finding the juvenile meets criteria for jurisdiction, and/or that adjudication occur before diverting or before ordering certain conditions. For states that require judicial findings or adjudications for post-petition diversions, there are also mechanisms to delay or avoid formal entry into the juvenile's record, pending success. States that require adjudication before these kinds of court diversions may not consider dispositions a 'diversion' at all, or only after the petition is dismissed or withdrawn.
- Rehabilitative/restorative tasks to complete: These often include completing assessments, community service, and/or other rehabilitative or restorative services, such as victim mediation, truancy, behavioral health, drug and alcohol assessment and treatment, anger management and other diversion programs, etc. States that require risk (of reoffending) or other assessment tools may also have statutory requirements that results may not be mentioned or used against the juvenile at adjudication or disposition hearings.
- Conduct requirements: positive school attendance, behavior, and academic progress; and refraining from any further illegal conduct are commonly included in written agreements.
- Monitoring: court diversions may include monitoring by a court services or executive juvenile justice agency JPO, dedicated staff, government human service agency, or designated contracted provider staff (Common labels: 'informal probation', 'community supervision', etc.) The degree of monitoring may vary by frequency, duration, and intensity. Some states limit the amount of time certain kinds of monitoring can occur by specifying a number of months, years, or no longer than the sentence matrix would permit for the offense if committed by an adult. Some states provide that the juvenile automatically remain under the court's jurisdiction and could thereby be subject to monitoring supervision (probation) to age 18 or older unless the judge orders otherwise. Most states that permit longer post-petition monitoring or community supervision require 6 month or annual court reviews.
- Compliance: when elements are specified, agreements must usually include the manner of evaluation and measures of success, specific consequences for violations, how agreements can be revoked, and when the matter would proceed to the next stage toward an adjudication record, etc.
- Consent: The consent of the juvenile is always required for informal adjustment agreements and consent decrees. The consent of the parent/s and/or the child's attorney, if any, is nearly always required. "Parent" refers to a biological/adoptive parent, legal guardian/s or custodian/s. States vary in whether both parents must sign, and if the juvenile's attorney may or must sign indicating agreement instead of the parent/s. Some states require additional consents of both JPO and DA, for example, or from providing agency/programs. The juvenile has the ability to revoke the agreement and demand judicial action at any time. When that occurs, petitions are filed/authorized to initiate adjudication hearings.
Less common elements that are more variable among states:
- Required offers for diversion: Some states require that first time offenders or allegations involving status offenses and misdemeanors must be offered court diversions before initiating adjudication proceedings.
- Excluded situations: States sometimes exclude certain alleged offenses from court diversion or that a JPO-negotiated agreement requires consent of the DA. Excluded offenses are generally felonious and tend to apply most often to violent offenses, those involving use of deadly weapons, and those that require transfer to (adult) criminal court. The juvenile's prior history of adjudications or diversions, (some specify a certain number or offense type) can also exclude the matter from court diversions.
- Victim consultation/assent: States vary in when and how victims may or must be consulted before diverting, how they are notified of diversion decisions, and opportunities to be heard or contest a decision. Victim agreement with the decision to divert is usually considered but not required.
- Waiver requirements: Some states require that the juvenile waive certain due process rights before diverting, such as right to a speedy trial or jury trial (when available in the state).
- Whether EHM or placements are permissible: When electronic home monitoring (EHM) or placements are permitted for court diversions, states tend to require that these conditions only occur as part of post-petition court diversions, but some states permit these conditions for pre-petition diversions at times. Secure placements are almost always excluded from court diversion dispositions by law.
- Programming: many states specify the use of specialty courts (teen court, drug court) or particular diversion programs and interactions with juvenile court. Differences include whether a referral must be court-ordered to use for a court diversion, whether specialty court or program treatment recommendations can become juvenile court diversion requirements, and when and how the specialty court or program must notify or report back to the court. Some states specify diversion programs more generally and assign development to prosecutors and juvenile courts with varying levels of responsibility, and others have very specific requirements for particular programs or types of diversions for particular alleged offenses. Specific elements for teen court, drug court, truancy and sex trafficking programs tend to be proscribed most often.
- Conduct restrictions: some state statutes specify when restrictions on curfews, associating with co-defendants or victims, driver’s license, and/or firearms are permitted or required;
- Parental requirements: some states require or permit judges to order parental participation in programs or services (at times) and/or specify their financial responsibilities to the state/county for monitoring or services;
- Restitution/Court Fees: some states mention whether the juvenile and/or parent are responsible to pay; and whether time to pay restitution can go beyond the agreement time limits, etc.
- Violations: some states provide for graduated sanctions for violations, specify when detention can be used, and when (and how) modification or revocation of agreements may or must occur.
- System Variations: some states mention whether and when notifications to schools, agencies, driver's license departments, firearms, etc. are required; have data collection requirements; specify when records can be shared among system stakeholders; identify when and how diversion records may or must be expunged; and whether the use of standardized assessments and evidence based practices are recommended or required.
Community Diversions: how they differ from court diversions
The following community diversion mechanisms are described to differentiate from court diversions compared in the maps. These are considered community diversions because they are utilized by law enforcement, etc. before a formal referral to the juvenile court for adjudication would be required. Note that the DA, JPO, or judge can refer youth to many of the same community-based diversion programs used for "community diversions" as part of a "court diversion."
Civil (Service) Citation Programs take the form of ‘tickets’ issued by police with or without a summons to appear before municipal court or a juvenile court judicial officer. Youth may be subject to time limited sanctions, such as 10 hours of community service, etc. but are not immediately subject to juvenile court adjudication proceedings at this stage.
Other "Police diversions" occur in lieu of arrest or in lieu of taking custody of a juvenile (from parent/s). Depending on the state, police diversions can include a range of community diversion programs and other conditions, including community service or family arranged (non-detention) placements.
Pre-trial juvenile diversion programs initiated in criminal or municipal courts are excluded when law violations of minors are under the original jurisdiction of a different court. These situations may sometimes be referred (or transferred) to juvenile court for court diversion.