Blurred Lines: Reconsidering the Concept of ‘Diversion’ in Youth Justice Systems in Australia

Introduction

[W]e need to begin to look at the functions of this practice [‘diversion’]. Rather than querying the extent to which it should be modified to bring it into line with the aims set out for it, the question is what purpose does this policy have? (Pratt, 1986: 214)

On the one hand, there was a scheme which could accurately be described as having ‘diversion’ as its aim. Its target population was children who would otherwise have been prosecuted. On the other, there was a scheme with broader aims, which reached out, both to children who would otherwise have been prosecuted and to those who were ‘pre-delinquents’. This distinction… rapidly became blurred. (Seymour, 1988: 158)

Recent research on youth justice has produced conflicting results about the efficacy of ‘diversion’ and contrasting views about whether ‘diversion’ should be increased or reduced in Western youth justice systems. In relation to the efficacy of ‘diversion’, McAra and McVie’s (2007, 2010) research on the Scottish youth justice system found that ‘diversion’ fosters desistance among young offenders. McAra and McVie’s (2010: 198) data on young offenders, from the Edinburgh Study of Youth Transitions and Crime, found that ‘diversion’ of young offenders is vital given that:

The deeper young people who were identified as the usual suspects [i.e. those who ‘become sucked into a repeat cycle of contact with the system’] penetrated the youth justice system, the more likely it was that their pattern of desistence from involvement in serious offending was inhibited. [italics in original]

Indeed, McAra and McVie’s (2007: 327) research found that even when controlling for a range of relevant variables, the strongest predictor of a young person being charged by police during the previous year was having previous police charges:

Children who reported that they had been charged in previous years were over seven times more likely to be charged at age 15 than were children with no such history – a factor that is completely independent of their current involvement in serious offending and their more recent history of police adversarial contact. [italics in original]

As a result, McAra and McVie (2010: 202) argue that youth justice systems ought to ‘maximize diversion wherever possible’ (see also Holman and Zeidenberg, 2006).

In contrast, recent Australian research by Weatherburn et al. (2012) argues against what they see as the current ‘hands off’ (New South Wales Bureau of Crime Statistics and Research, 2011; Wallace and Jacobsen, 2012) approach to youth justice in Australia. Weatherburn et al. (2012) found that over half of all young people cautioned, conferenced or convicted for the first time in New South Wales in 1999 were reconvicted of a further offence during the following 10 years. As such, Weatherburn et al. (2012) find the evidence in support of youth ‘diversion’ lacking, and recommend instead an approach to youth justice in which young offenders assessed as at risk of reoffending are placed on a treatment program designed to address their criminogenic needs. While Weatherburn et al. (2012: 808) acknowledge that such an approach would ‘undoubtedly increase the number of young offenders coming before the Children’s Court’, they argue that ‘there is no criminological reason to be concerned about such an outcome’.

Recent scholarship on youth justice also makes competing claims about the capacity of the youth justice system to label and stigmatize young people in trouble with the law, and based on this, competing arguments about whether ‘diversionary’ measures should be expanded or reduced. Jordan and Farrell (2013), drawing heavily on labelling theory, argue for an increased role for ‘diversion’ in Victoria’s youth justice system. They say:

Born of this theoretical framework centred on the concept of labelling, diversion strategies aim to redirect young offenders away from the criminal justice system, primarily to avoid the stigmatising and criminogenic impacts associated with interactions with the justice system…. Yet, despite the legal, financial and social benefits of diversion… Victoria has not adopted a legislative, court-based diversion scheme…. This article… proposes a number of means to develop a more robust youth diversion scheme for young Victorians. (Jordan and Farrell, 2013: 419−420)

In contrast, Weatherburn et al. (2012) assess the evidence in support of the capacity of the youth court system to label and stigmatize young people, and again find it lacking. As a result, they recommend that policy makers consider the ‘abandonment’ of the assumption that ‘contact with the court system increases the risk of further offending (i.e. is criminogenic)’ (Weatherburn et al., 2012: 780). As described above, while Weatherburn et al. (2012: 808) recognize that such an ‘abandonment’ would increase the number of young people coming before the youth court system, their rejection of labelling theory leads them to believe that this outcome is of little concern.

Irrespective of these divergent research findings about the efficacy of ‘diversion’ and views about its continued relevance, ‘diversionary’ measures continue to have a stronghold in Western criminal justice systems, and in particular, in Western youth justice systems. There are certainly competing ideologies that exert an influence on youth justice; McAra and McVie (2010: 181−182) argue that a ‘complex and conflicted set of logics… an uneasy mixture of welfarist, actuarialist and retributive impulsions’ underpin the Scottish youth justice system (see also Muncie, 2011), and the same could be said about youth justice systems in Australia’s eight jurisdictions. Nonetheless, ‘diversion’ at both an ideological and a practical level has been a key feature of Western youth justice systems in recent decades (see Goldson 2000). A number of international frameworks relating to youth justice stress the importance of ‘diversion’ for young people in trouble with the law. The United Nations Guidelines for the Prevention of Juvenile Delinquency (United Nations, 1990: para 58) recommend that ‘Law enforcement and other relevant personnel… should be familiar with and use, to the maximum extent possible, programs and referral possibilities for the diversion of young people from the justice system’. Similarly, the United Nations Standard minimum rules for the administration of juvenile justice (United Nations, 1985: para 11.1−11.2) recommend that:

Consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority…. The police, the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such cases, at their discretion, without recourse to formal hearings.

At the national level, both the National Youth Policing Model (Attorney-General’s Department, 2010) and the National Youth Justice Framework (Australasian Juvenile Justice Administrators, forthcoming) include a strong focus on the importance of ‘diversion’ for young people in trouble with the law. At the jurisdictional level, the youth justice system in each state and territory in Australia involves a strong focus on ‘diversion’, either via legislation or policy (see Australian Institute of Health and Welfare, 2011; Jordan and Farrell, 2013), although the extent to which various ‘diversionary’ measures are utilized varies substantially across these jurisdictions (see Richards, 2010). The Australian Capital Territory even recently developed a standalone Diversionary Framework for Youth Justice (see Australian Capital Territory Department of Disability, Health and Community Services, 2011). Thus despite Lundman’s (1976: 437) bleak prediction that ‘this embrace [of “diversion”] will be momentary’, it continues to underpin many criminal justice measures, especially youth justice measures, in the West.

This article revisits the concept of ‘diversion’ in the context of youth justice in Australia. As outlined above, ‘diversion’ is omnipresent in this context; however, it is rarely subject to critical examination. Rather, it is so taken-for-granted as to be ‘invisible’ in the Foucauldian sense; as Hacking (1995: 95) puts it, ‘the sort of thing that nobody even asks about’. This article raises a number of key questions about youth justice ‘diversion’ in this context. Specifically, in the hopes of reigniting critical engagement with the concept of ‘diversion’, it considers the following four interrelated questions: what young people are to be ‘diverted’ from and to; whether young people are to be ‘diverted’ from the criminal justice system or from offending; whether young people are to be ‘diverted’ from criminal justice processes or outcomes; and whether ‘diversion’ should be reimagined as conceptually distinct from both crime prevention and early intervention. This article does not seek to proffer answers to these questions. Following Pratt (1986), my aim is not primarily to consider whether ‘diversion’ is meeting the objectives ascribed to it, but to pose these questions in support of a bolder aim: to destabilize and encourage renewed engagement with the very purpose of ‘diversion’.

The term ‘diversion’, and associated terms, will be used in inverted commas throughout this article in order to remind the reader of the contested and contestable nature of this terminology − that ‘diversion’ represents a loose, shifting and unstable assemblage of diverse processes, practices, ideologies and theoretical positions. This is in keeping with Foucauldian scholars such as Sutcliffe (2003: 6), who considers this strategy ‘not a fad but a necessary device to keep my problematisation of this category constantly in the reader’s gaze’.

Destabilizing ‘Diversion’

Considering how ubiquitous the concept is in the youth justice sphere, the lack of a cogent definition of ‘diversion’ in this sphere is remarkable. As argued above, the taken-for-granted nature of the concept of ‘diversion’ is striking; it is a constant feature of criminal justice – especially youth justice – discourse, but is rarely critically examined. ‘Diversion’ is a shifting and nebulous entity, and appears to take on various meanings in various contexts, at various times, and to various people (see also Cressey and McDermott, 1974; Sarri, 1983). Ironically, given concerns about the capacity of ‘diversionary’ measures to result in net-widening, it seems that the concept itself has been the unwitting victim of this phenomenon. Nejelski (1976: 394) drew attention to this concern over three decades ago, in the early throes of the ‘diversionary’ movement, claiming that ‘the term “diversion”… has been used so often to justify such a wide response to children in trouble that it has become a coin of debased value’ (see also Cressey and McDermott, 1974). More recent critiques of this nature are far less common; while particular ‘diversionary’ measures are routinely subject to criminological attention – particularly evaluation – the concept of ‘diversion’ itself receives little attention.

Consider as examples of the varied understandings of ‘diversion’ the following definitions:

Diversion is generally understood as any process that prevents a young person from entering or continuing in the youth justice system. It is also described as removal from criminal justice processing, and, frequently, redirection to community support services. (Australian Capital Territory Department of Disability, Housing and Community Services, n.d.: 1)

Diversion is defined as the channelling of cases to noncourt institutions, in instances where these cases would ordinarily have received an adjudicatory (or fact-finding) hearing by a court. (Nejelski, 1976: 396)

[‘Diversion’ is] a means of diverting eligible offenders from the criminal justice system to specific programs that address issues related to criminal behavior. (Heseltine and Howells, 2012: 512)

Diversion primarily operates at three levels:

[‘Diversion’ is] any process that is used by components of the criminal justice system whereby youths avoid formal juvenile court processing and adjudication. (Roberts, cited in Bechard et al., 2011: 607)

These definitions alone raise a number of issues about the precise aims and nature of ‘diversion’, which will be addressed in turn below.

What Are (Young) Offenders to be ‘Diverted’ From and To?

First, it is unclear precisely what young people are being ‘diverted’ from and to. In the above examples alone, ‘diversion’ is variously constructed as channelling offenders from: court, custody, the criminal justice system as a whole, and even offending behaviour itself (as discussed in more detail in the following section). ‘Diversion’ is constructed as channelling offenders to: ‘noncourt institutions’, community support services, and treatment programs. While these definitions of ‘diversion’ may (ostensibly at least) share the aim of reducing young people’s contact with the more formal and severe elements of the criminal justice system, they obscure important differences among the approaches being advocated. For example, Roberts’ (cited in Bechard et al., 2011: 607) definition of ‘diversion’ as ‘any process… whereby youths avoid formal court processing’ categorizes a vast array of criminal justice measures, such as informal police reprimands, cautions, youth justice conferences and drug courts, together as ‘diversionary’ measures.

A critical difference among these measures, however, is that while some (e.g. drug courts, youth justice conferencing) involve the Damocles’ sword of traditional court processing, sentencing and penalty, others (e.g. police reprimands, warnings and cautions) do not. In other words, while some of these ‘diversionary’ measures may be ‘true diversions’ (Cressey and McDermott, 1974) in that they involve simply directing the young person out of the criminal justice system with no possibility or threat of further contact, others involve the threat of an appearance in a traditional court, and the potential consequences of such an appearance, if the young person does not comply with the ‘diversion’. As Cressey and McDermott (1974: 3) put it, ‘If “true” diversion occurs, the juvenile is safely out of the official realm of the juvenile justice system… when he [sic] walks out the door from the person diverting him, he is technically free to tell the diverter to go to hell’ (see also Klein, 1979). This distinction is important to recognize in light of long-held concerns about the capacity of ‘diversionary’ measures to thin the mesh of criminal justice control over young people (see, for example, Clancey and Howard, 2006; McAra and McVie, 2007, 2010).

Are Young People to be ‘Diverted’ from the Criminal Justice System or from Offending Behaviour?

As noted above, the literature on ‘diversion’ constructs the aim of ‘diversion’ as variously channelling young offenders away from the criminal justice system, and away from offending behaviour. For example, Jordan and Farrell’s (2013: 421) definition, reproduced above, claims that ‘diversion’ aims to ‘prevent young people becoming involved in criminal activity in the first instance’ as well as preventing young people’s contact with the criminal justice system, especially custody. Similarly, Zagar et al. (2013: 390, 381) discuss the ‘challenges of diverting youth from crime while saving detention costs’ and ‘how to divert youths from violence’.

The National Youth Policing Model (Attorney-General’s Department, 2010), a national framework ‘designed to improve the safety and security of the Australian community by reducing the prevalence of unsafe, violent and anti-social behaviours by young people’ (Attorney-General’s Department, 2010: 2), provides numerous examples of this conceptual confusion about whether young people are to be ‘diverted’ from the criminal justice system or from offending itself (of course these two issues are linked, as will be discussed below). The National Youth Policing Model (Attorney-General’s Department, 2010: 25) states, for example, that ‘South Australia Police has diverted over 4500 young offenders to access health interventions that assist in addressing illicit drug abuse [since 2001]’. Further, South Australia’s ‘Calperum “on the land”‘ program ‘focuses on enhancing cognitive, life and vocational skills to divert young people away from offending behaviours’ (Attorney-General’s Department, 2010: 25). The Australian Capital Territory’s ‘Youth Liaison Officers’ initiative even aims to ‘refer young people to programs designed to divert them from crime and adverse or vulnerable circumstances’ (Attorney-General’s Department, 2010: 42). Here, rather than being ‘diverted’ from the criminal justice system as a whole, or particular elements of the criminal justice system (such as custody), young people are to be ‘diverted’ from offending itself.

Further, ‘diversion’ is constructed in the National Youth Policing Model and elsewhere (see, for example, Roe-Sepowitz et al., 2011; Vodde, 2012) as channelling young people away from both offending and reoffending. For example, the National Youth Policing Model (Attorney-General’s Department, 2010: 29) goes on to describe the aim of Western Australia’s Police Citizens Youth Centres as ‘to divert young people who have offended from further offending’. Western Australia’s Police Citizens Youth Centres ‘Community Service Hours’ initiative is described as ‘[building] positive relationships… between the young offender and police to assist in diversion from re-offending behaviour’ (Attorney-General’s Department, 2010: 30). Similarly, Western Australia’s ‘Juvenile and Family Fire Awareness (JAFFA)’ program, which targets young people involved in arson-related behaviours, is described as ‘an attempt to divert further criminal activity’ (Attorney-General’s Department, 2010: 31). Extraordinarily, the target of this ‘diversionary’ measure is not a young person at all, but ‘criminal activity’.

The conceptual confusion as to whether young people are to be ‘diverted’ from the criminal justice system or from offending is by no means limited to the National Youth Policing Model. The Australian Institute of Health and Welfare (2011: 201) describe Victoria’s ‘Youth Justice Housing Pathways Initiative’ as providing ‘support to young people involved with the Youth Justice program in an effort to divert young people from the youth justice system and to minimize the likelihood of further offending’. Similarly, the aim of youth justice conferencing in Queensland is described as ‘to divert young people from further offending’ (Australian Institute of Health and Welfare, 2011: 203). Again, therefore, ‘diversionary’ measures for young people are variously constructed as directing young people away from the criminal justice system, from offending behaviour, and from reoffending behaviour.

I want to argue in this article that these two aims – ‘diverting’ young people from the criminal justice system, and ‘diverting’ young people from (re)offending – need to be disentangled. Of course, offending and contact with the criminal justice system are related in that offending or reoffending may lead to contact with the criminal justice system. It is important, however, that the premise that ‘more offending equals more contact with the criminal justice system’ (New South Wales Bureau of Crime Statistics and Research, 2011: 2) is subject to critical examination. While this view may be correct to an extent, it overlooks the evidence that some groups of young people come into contact with the criminal justice system not because they offend persistently but because they are highly visible to police and other criminal justice authorities and come under a high degree of criminal justice scrutiny (see McAra and McVie, 2007, 2010). This has been demonstrated to be the case for Indigenous young people (Blagg et al., 2005; Cunneen, 2008), culturally and linguistically diverse young people (Australian Human Rights Commission, 2010), and young people in out-of-home care (McFarlane, 2010), on bail (Richards and Renshaw, 2013), from non-metropolitan areas (Blagg et al., 2005; Cunneen, 2008; Richards and Renshaw, 2013), and from the sex and gender diverse community (Dwyer, 2011), among others. Thus while offending behaviour and contact with the criminal justice system may be related, the relationship between the two is more nuanced than some authors (e.g. New South Wales Bureau of Crime Statistics and Research, 2011; Weatherburn et al., 2012) suggest. It follows that making a conceptual distinction between ‘diverting’ young people from offending, and ‘diverting’ young people from the criminal justice system, is critical to better understanding and applying the aims of ‘diversion’.

A key point of this article is therefore that we need to disentangle ‘diversion’ from the criminal justice system and ‘diversion’ from offending. These are historically and conceptually distinct. As argued in more detail below, while ‘diverting’ young people from the criminal justice system is primarily concerned with minimizing the potentially adverse consequences of this contact, ‘diverting’ young people from offending aims primarily to change their behaviour. As a result, ‘diversion’ from the criminal justice system and ‘diversion’ from offending give rise to distinct and discrete responses: doing nothing (or at least doing something less intrusive), and doing something (or intervening more intrusively), respectively.

For example, if the aim of ‘diverting’ a young person from the criminal justice system is to minimize his/her contact with the potentially stigmatizing court process, this might give rise to a young person being ‘diverted’ to a caution instead, or indeed, being given an informal reprimand by a police officer and simply let go or moved on. In contrast, if the aim of ‘diverting’ a young person is to change their offending behaviour, this might give rise to a young person being placed on an intensive behavioural change program such as an anger management program. ‘Diversion’ from offending may therefore have far more intrusive consequences on young people’s lives, and the lives of their families, than ‘diversion’ from the criminal justice system.

I do not intend to focus in this article on the concerns associated with the net-widening and mesh-thinning potential of ‘diversionary’ measures; Cohen (1985: 31) delivered a devastating critique of the ‘destructuring impulse’, including the shift towards ‘diversionary’ measures, nearly three decades ago (see also Polk, 1993; Pratt, 1986; Sarri, 1983). Rather, my more modest point here is twofold: firstly that there is a conceptual confusion pervasive in the body of literature on youth justice as to whether offenders (especially young offenders) are to be ‘diverted’ from the criminal justice system or ‘diverted’ from offending; and secondly that this confusion has potentially serious consequences, since ‘diverting’ young people from offending may result in precisely the problems that ‘diversion’ from the criminal justice system seeks to avoid (e.g. stigmatization, intrusive intervention in the lives of young people and their families).

To summarize the argument so far, measures that seek to ‘divert’ young people from offending rather than (or in addition to) contact with the criminal justice system by intervening in some way risk subjecting young people to high levels of criminal justice scrutiny. As Richardson and McSherry (2010: 250) put it, ‘[While] traditionally the term “diversion” meant diversion out of the criminal justice system altogether… the term is now also commonly used to describe programs which initially increase contact with the criminal justice system through treatment and supervision but which are aimed at reducing contact with the criminal justice system over time’. As McAra and McVie’s (2007, 2010) work clearly shows, this may be highly counterproductive. As such, while intensive intervention in young people’s offending trajectories may be warranted in some cases − as Weatherburn et al. (2012) argue − a high degree of caution must be exercised in order to prevent young people becoming the ‘usual suspects’ (McAra and McVie, 2010: 198).

This issue – whether young people are to be ‘diverted’ from the criminal justice system or from offending – raises two further related issues: whether (young) offenders are to be ‘diverted’ from criminal justice processes or outcomes; and whether crime prevention, early intervention and ‘diversion’ ought to be conceptually distinct from one another. These issues will now be addressed in turn.

Are (Young) Offenders to be ‘Diverted’ from Criminal Justice Processes or Outcomes?

In the preceding section, ‘diversion’ from the criminal justice system and ‘diversion’ from offending were contrasted. A further conceptual confusion that requires academic attention is whether young people are to be ‘diverted’ from criminal justice processes or criminal justice outcomes. What does it mean to say that we ‘divert’ young people from the ‘criminal justice system’?

There is a great deal of confusion about this in the bodies of literature on ‘diversion’ and youth justice. Considering again the definitions of ‘diversion’ provided above, it is clear from these examples alone that (young) offenders who are to be ‘diverted’ from the criminal justice system are variously to be ‘diverted’ from criminal justice processes (e.g. arrest, court, prosecution, adjudication), and from criminal justice outcomes (e.g. custody). While Nejelski’s (1976: 396) and Roberts’ (cited in Bechard et al., 2011: 607) definitions clearly construct offenders as being ‘diverted’ from court or other adjudicatory process, Jordan and Farrell’s (2013: 421) broad-ranging definition includes offenders being ‘diverted’ from custodial sentences.

This conceptual confusion is not limited to these examples, but pervades the literature on adult and youth ‘diversion’. In some cases, the literature even confuses ‘diversion’ from criminal justice processes and outcomes as well as ‘diversion’ from offending. Vodde’s (2012: 114) definition of ‘diversion programs’ in the Encyclopedia of Community Corrections provides perhaps the most confused discussion of the aims of ‘diversion’:

[‘Diversion programs’] involve diverting offenders away from the criminal justice system towards some form of treatment, remediation, and prevention of further criminal behaviour…. [T]he courts have deemed that diversion programs provide offenders a ‘second chance’ by affording them the opportunity to participate in a community-based treatment and supervision program in lieu of being formally processed through the court and adjudication system.

Here, the aim of ‘diversion’ is variously portrayed as channelling offenders from both criminal justice processes and outcomes, as well as from (re)offending itself. These examples demonstrate the amorphous nature of the concept of ‘diversion’ (see Richardson and McSherry, 2010), and the multiple ‘invisible’ aims of ‘diversion’ that the literature frequently obscures. Although the literature considers ‘diversion’ from criminal justice processes and ‘diversion’ from criminal justice outcomes unproblematically, and as though these aims are interchangeable, the distinction between the two is an important one, and should be subject to critical attention.

A first step towards this might be to consider the rationale for each. As considered in more detail below, the notion that young offenders should be ‘diverted’ from court and other criminal justice processes is at least partly premised on labelling theory (Cressey and McDermott, 1974; Lundman, 1976; McGrath, 2008; Nejelski, 1976; Polk, 1993; Sarri, 1983; Schwalbe et al., 2013; Vodde, 2012). According to labelling theory, processes such as being charged or brought before a court can stigmatize individuals and result in them adopting the ‘master status’ of deviant, which in turn may lead to more offending on their part (Becker, 1963). While the same concerns might also apply to criminal justice outcomes (e.g. community service orders, custody), there are other (arguably far more important) concerns about criminal justice outcomes that form key rationales for ‘diversionary’ measures. It has been well-documented that youth detention, for example, has a wide range of adverse impacts on young people largely unrelated to labelling and stigmatization. These include: separation from family and community (Halsey, 2007); disruptions to education and employment (Bailey, 2009); exposure to violence and psychological harm (Halsey 2007); and the increased risk of self-harm and suicide (Abram et al., 2008; Holman and Zeidenberg, 2006). These consequences of incarceration can affect certain groups of young people, such as Indigenous young people (Australian Capital Territory Human Rights Commission, 2011), young women (Australian Capital Territory Human Rights Commission, 2011), sex and gender diverse young people (Curtin, 2002; Estrada and Marksamer, 2006), young people with disabilities (Australian Capital Territory Human Rights Commission, 2011), young people on remand (Bailey, 2009; Goldson and Jamieson, 2002), and young people incarcerated in adult prisons (Murrie et al., 2009), in particular.

Thus while there is undoubtedly some overlap in the rationales for ‘diverting’ young people from criminal justice processes and from criminal justice outcomes, it is important to recognize that, to some extent, these aims are distinct. To ‘divert’ young people from a criminal justice outcome such as detention is to ‘divert’ them from far more tangible harms than those that might accompany a criminal justice process (such as court) in and of itself.

It should be acknowledged, of course, that by ‘diverting’ a young person from an adjudicatory process, the young person is concomitantly ‘diverted’ from the potential consequences or outcomes of that process. For example, in Australian jurisdictions, ‘diverting’ a young person from court to a youth justice conference simultaneously ‘diverts’ him or her from the potential consequence of detention, as youth justice conferences are not legally empowered to sentence a young person to detention. It is nonetheless important for legislators, policy makers, researchers and practitioners in the youth justice sphere to appreciate the historical and conceptual differences between ‘diverting’ young people from criminal justice processes and ‘diverting’ young people from criminal justice outcomes, and to be clear about the rationale(s) for each.

Of course, both ‘diversion’ from criminal justice processes and ‘diversion’ from criminal justice outcomes share an important aim that is yet to be addressed in this article: the prevention of future offending. That is, a key rationale shared by measures that seek to ‘divert’ young people from court and those that seek to ‘divert’ young people from detention is that these measures will minimize the likelihood that the young people ‘diverted’ will offend in future. These rationales, in turn, are based on different premises. The notion that ‘diverting’ young people from court will minimize the likelihood of future offending is based on the premise that court appearances are stigmatizing and will result in the young person adopting a deviant ‘master status’. In other words, this notion is premised primarily on labelling theory. In contrast, the notion that ‘diverting’ young people from detention will minimize the likelihood of future offending is based on the premise that detention is criminogenic in a range of other ways, such as that detention enables young people to form criminal associations (see Gatti et al., 2009; Holman and Zeidenberg, 2006), and that the disruption to their lives that detention represents leaves young people little choice but a life of crime (see generally Holman and Zeidenberg, 2006; Soler et al., 2009). Thus while both ‘diverting’ young people from criminal justice processes and ‘diverting’ young people from criminal justice outcomes may be partly premised on attempts to reduce the likelihood of future offending, the mechanics of these two processes are based on different assumptions about what causes offending and reoffending.

Perhaps a more subtle and nuanced understanding of ‘diversion’ is therefore required. For example, we might consider some ‘diversionary’ measures (such as police warnings and cautions) to be ‘diversions’ from the court process, and others (such as youth justice conferences and youth drug and alcohol courts) to be ‘diversions’ from court outcomes, such as supervision by the youth justice system. Polk (1993: 107) adopted a similar approach by distinguishing between measures that aim to limit young people’s formal contact with police and courts (the ‘front end’ of the system) and those that aim to limit the incarceration of young people. (Polk (1993: 107) refers to the former as ‘diversion’ and the latter as ‘deinstitutionalisation’ or ‘decarceration’ (see also Cressey and McDermott, 1974; Klein, 1979; Seymour, 1988)). It is also worth considering whether to an extent, no particular criminal justice process, program or practice is intrinsically ‘diversionary’, and depends on whether it is provided an alternative to a more intrusive process, program or practice. It is certainly possible that particular criminal justice measures may be ‘diversionary’ for some young people but not others. For example, a youth justice conference might represent ‘diversion’ for a young person if a children’s court magistrate refers them to it as an alternative to placing the young person under youth justice supervision. A youth justice conference could not be considered a ‘diversion’, however, for a young person who would ordinarily have been cautioned.

Some of the confusion on this point stems from a lack of clarity about the precise nature of the relationship between labelling theory and ‘diversion’. While the Jordan and Farrell (2013) and Weatherburn et al. (2012) articles introduced above make competing recommendations about the role of ‘diversion’ in youth justice systems in Australia, they both assume a direct link between labelling theory and ‘diversion’. This link is rarely critically examined; while labelling theory and ‘diversion’ are clearly related − as both Jordan and Farrell (2013) and Weatherburn et al. (2012) recognize − the relationship between them requires closer attention.

It should first be recognized that ‘diversionary’ policies and practices are premised on a far richer breeding ground than merely labelling theory. While labelling theory undoubtedly provided a key theoretical basis for the emergence of ‘diversionary’ measures in Western criminal justice systems (Cohen, 1985; Lundman, 1976; Schwalbe et al., 2013), ‘diversion’ did not emerge in response to labelling theory alone. Nor can the enduring support for ‘diversion’ be reduced to an acceptance of labelling theory alone. Rather, in addition to concerns about the labelling and stigmatization potential of the formal criminal justice system, ‘diversion’ emerged in response to concerns about the financial cost of the formal criminal justice system (Zagar et al., 2013) and the benefits to efficiency that might be obtained if trivial cases were removed (Pratt, 1986; Sarri, 1983; Seymour, 1988), concerns that formal criminal justice measures are not the most beneficial or appropriate for responding to (particular types of) offending or (particular categories of) offenders, and in the context of the social movement towards decarceration – towards what Cohen (1985: 31) termed the ‘destructuring impulse’. These three precursors to ‘diversion’ are, of course, interrelated, with the decarceration movement itself stemming partly from concerns about the cost and efficacy of traditional criminal justice measures – primarily prison (see, for example, Bechard et al., 2011).

Should ‘Diversion’ be Conceptually Distinct from Primary and Secondary Crime Prevention and Early Intervention?

As argued above, one area of conceptual confusion in relation to youth justice ‘diversion’ is whether young people are to be ‘diverted’ from the criminal justice system or ‘diverted’ from offending. A related confusion in the literature on ‘diversion’ is the difference between ‘diversion’ and crime prevention. Bechard et al. (2011: 607), for example, claim that ‘one unifying goal of all diversion programs is keeping first-time offenders, or otherwise at-risk youth, from penetrating further into the justice system’. Jordan and Farrell’s (2013: 421) definition of ‘diversion’, outlined above, directly equates ‘diversion’ and crime prevention: ‘diversion primarily operates at three levels… [including]… crime prevention strategies – which aim to prevent young people becoming involved in criminal activity in the first instance’. Under the heading ‘Non-cautioning diversion programs for low-level youth offending’, Jordan and Farrell (2013: 422) go on to describe Victoria’s Youth Support Service in the following terms: ‘The Youth Support Service (‘YSS’) aims to prevent young people deemed to be at low risk of offending from entering the justice system by addressing the underlying causes of their engagement in criminal behaviour’.

The National Youth Policing Model (Attorney-General’s Department, 2010) also repeatedly confuses the domains of ‘diversion’ and crime prevention. For example, we are informed in the Introduction that ‘the Model… advocates police participation in prevention and diversion strategies such as education and awareness programs’ (Attorney-General’s Department, 2010: 2). Under the heading ‘Prevention is better than cure’, the National Youth Policing Model (Attorney-General’s Department, 2010: 5) states that ‘although police cannot always be involved in community development strategies and social programs that aim to prevent crime, these should be facilitated wherever possible’, followed by the non sequitur that: ‘Policing initiatives that divert offenders from the criminal justice system at a young age are critical’.

As discussed above, ‘diversionary’ measures often seek, among other aims, and however problematically, to prevent further offending by young people. While this might appear to align with the various descriptions of ‘diversion’ outlined earlier in this article, an important distinction is that preventing further offending is the aim of tertiary, not primary or secondary crime prevention. Primary crime prevention aims to stop crime before it occurs by addressing social (e.g. employment, health, education) and/or situational (e.g. building design) factors (Australian Institute of Criminology, 2003). Secondary crime prevention measures intervene with individuals and/or communities at high risk of becoming involved or entrenched in crime, and tertiary crime prevention ‘deals with offending after it has happened’ (Australian Institute of Criminology, 2003: 1) and seeks to prevent reoffending. Much youth justice literature and policy, including the examples provided above, conflate ‘diversionary’ measures with primary crime prevention.

In the following extract from a document titled Diversionary Framework for Youth Justice – Questions and Answers, the Australian Capital Territory Department of Disability, Health and Community Services (n.d.: 3) even inexplicably confuses primary, secondary and tertiary crime prevention with primary, secondary and tertiary ‘diversion’:

There are three different types of diversion including [sic]:

Interestingly, some early literature on ‘diversion’ sought to make clear the distinction between ‘diversion’ and crime prevention. For example, Nejelski (1976: 396−397) claimed that:

Another way of describing diversion is to emphasize that it is not prevention. In diversion, the child has committed an antisocial act which could bring him within the court’s jurisdiction; he has been designated as an immediate candidate for court adjudication and formal processing. In prevention, services are made available to a broad range of children (who might in the future commit antisocial acts) to keep them from being designated as court clients.

Lundman (1976: 437) even criticized ‘diversion’ on these grounds: ‘diversion units operate to prevent or reduce secondary deviation (i.e. recidivism) and thus fail to attend to the causes of the primary deviation which brought the juvenile to the attention of the diversion unit’. And Klein (1979: 153) simply claims that ‘Diversion means to turn away from, and one cannot turn someone away from something toward which he was not already heading’. There is, however, little recognition of this distinction in more recent literature on youth justice (although see Bechard et al., 2011); the blurred lines between crime prevention and ‘diversion’ noted by Seymour (1988: 158) and quoted at the beginning of this article, remain blurred.

A related confusion is the conflation of ‘diversion’ with early intervention. One of the six national strategies outlined in the National Youth Policing Model (Attorney-General’s Department, 2010: 7), for example, is ‘Early intervention and diversion’, the aim of which is ‘to prevent young people from entering the criminal justice system’.

To confuse matters further, early intervention and primary crime prevention are frequently conflated in the criminological literature. The two are not, however, synonymous. As the Australian Institute of Criminology (2003: 1) explains, early intervention is typically used to intervene with individuals ‘at high risk of embarking on a criminal career’, and therefore aligns with secondary rather than primary crime prevention measures. In some ways, early intervention is quite opposed to primary crime prevention: early intervention targets individuals, whereas primary crime prevention ‘targets’ (or rather is applied to) whole communities. Primary crime prevention aims to ensure that early intervention is not necessary.

This is a vital distinction to make, as while ‘early intervention’ is seen as entirely benign (Goldson, 2000) – to the point that Weatherburn et al. (2012) recommend its expansion in place of a continuing adherence to ‘diversion’ in Australian youth justice systems – it is individualistic in nature and therefore runs the risks of minimizing the social determinants of crime (see O’Malley, 1996) and social responses to it, responsibilizing individual young people and their families, and drawing young people unnecessarily into the criminal justice system. This is in contrast to primary crime prevention, which by definition does not target individuals. Thus although ‘diversion’ is frequently conflated with both crime prevention and early intervention, this article posits that these three domains have varied meanings, and need to be better disentangled.

Conclusion

This article has called for greater conceptual clarity around the concept of ‘diversion’ and its role in youth justice systems. It has sought to encourage increased academic and practitioner engagement with the concept of ‘diversion’, by posing four interrelated questions: what young people are to be ‘diverted’ from and to; whether young people are to be ‘diverted’ from the criminal justice system or from offending; whether young people are to be ‘diverted’ from criminal justice processes or outcomes; and whether ‘diversion’ should be reconsidered as conceptually distinct from both crime prevention and early intervention. While this article has focused predominantly on the Australian context, much of the argument presented here undoubtedly also applies to comparable youth justice systems around the globe. Further, while the focus here has been on young people, much of the argument may be relevant to the adult criminal justice context in Western countries.

The concerns about the conceptual confusion around ‘diversion’ outlined in this article are not limited to semantics, but are important to consider if justice is to be achieved for young people in a fair and effective way. Currently, the confusion around ‘diversion’ has led to a plethora of youth justice policies and programs, including those used as examples in this article, with unclear rationales and objectives, as well as unclear benchmarks for the measurement of their effectiveness. Perhaps most importantly, and to put it crudely, youth ‘diversion’ policies and programs need to be clear about whether they intend to intervene more or less with young people and their families. Currently, the ill-defined ethos of ‘diversion’ is used to legitimize criminal justice measures that seek both more and less intervention in young people’s lives.

Further, some iterations of the conceptual confusion identified in this article foster individualized notions of justice and individualized interventions in young people’s lives – of ‘dealing with delinquents, rather than with delinquency’ (Schur, 1973: 62). While this may in some cases be warranted, in other cases it can be highly problematic, and have the result of unnecessarily increasing criminal justice control over young people’s lives and the lives of their families. In particular, the confusion between crime prevention and ‘diversion’ masks the reality that not enough is being done in Australia to prevent crime before it occurs – that is, in the domain of universally applied primary crime prevention. Dressing ‘diversion’ up as primary crime prevention – however inadvertently − may mean that secondary and tertiary crime prevention measures are offered in place of universal service provision. These issues are important to consider given the context of neo-liberal governance in Australia and other Western countries, under which the paradigms of risk and responsibilization dominate criminal justice policy and practice, and ‘prior notions of universality and welfare for all children “in need” have retreated into a context of classification, control and correction’ (Muncie, 2006: 781; italics in original) (see also Muncie, 2011).

This article therefore urges greater conceptual clarity about what ‘diversion’ is and is not, who its target population is, what it aims to achieve, and what it can be expected to achieve − with ‘what purpose does this policy have (Pratt, 1986: 214)’? Although some of these questions were raised by scholars earlier in the development of ‘diversion’ (see, for example, Cressy and McDermott, 1974; Nejelski, 1976; Pratt, 1986; Seymour, 1988), critical academic engagement with ‘diversion’ has not continued in any meaningful way. It is hoped that such a rethinking of the role of ‘diversion’ in the youth justice sphere in particular might result in justice being done for young people and their families in a more fair, socially inclusive and effective way.