A PROSECUTOR'S HOPE: LIGHTING THE PATH.

• Author: Vargo, Mark

1. INTRODUCTION

   Prosecutors have been at the forefront of diversion since its inception. Contrary to popular fiction, prosecutors are not solely charged with seeking convictions. We are ministers of justice and, at our best, champions of justice. (2) There are times, however, in which defendants do belong behind bars, and we will fight to make that happen. But, we also know the human cost of that trip to the penitentiary. There are many more cases where our real goals are to make our victims whole and to ensure that the defendant never returns to criminal court.

   In January 2016, Pennington County, South Dakota, began diverting young adults (18 to 25 year olds) charged with non-violent misdemeanors out of the criminal justice system. This program follows a long tradition of prosecutionled innovations designed to ensure that a criminal defendant has a very real chance to become a productive member of society instead of a "frequent flyer."

2. BACKGROUND

   It may be helpful to begin with a brief review of the philosophy of criminal justice in the United States. It is generally accepted that there are four legitimate goals of prosecution: punishment (sometimes called retribution), deterrence (both general and specific, which is also called incapacitation), restitution, and rehabilitation. (3) In pursuit of these goals, however, we are largely limited in the tools available to us. Practically speaking, there is prison and there is probation (with the threat of prison).

   At a juvenile level, the legal presumption is that the primary goal of the system is rehabilitation. (4) This is based not just on the cultural perception of children, but also on extensively compiled evidence that juvenile behavior is only an imperfect predictor of adult behavior. (5) The science corroborates that the juvenile brain is different from the adult brain. (6) As posited by social justice researchers,"[b]rain development continues into early adulthood and... adolescents are particularly prone to risky behavior...." (7)

   It appears, though, that the age of 18 is, at best, an imperfect approximation of the arrival of the "adult" brain. Psychologist B.J. Casey examined decision-making under three types of stimuli: positive, negative, and neutral. (8) In both the positive and neutral settings, she found no diminution of impulse control for eighteen to twenty-one-year-olds (as compared to 22 to 25 year olds). (9) But, under negative pressure, the younger age group showed a decreased ability to avoid behavior that they knew would be punished, performing at rates similar to teenagers. (10) In other words, when a defendant turns 18, we presume that he or she is ready for adult court and adult sanctions--even though 18 year olds are developmentally closer to juveniles than adults.

   In my personal experience, the traditional approach in the adult system was not subtle--catch someone doing something wrong and punish him. If that does not work, punish him more severely next time. The entire system revolved around retribution and incapacitation. It is hardly surprising that this approach did very little to change an offender. In more recent decades, it has also resulted in extraordinary prison and jail populations. (11) All of this has led to a significant push in the United States to reduce the quantum of punishment for criminal activity, making probation mandatory or presumptive for a wide variety of crimes. (12) In this push, we have all but abandoned punishment and deterrence in favor of rehabilitation. (13) I believe that neither extreme serves communities well.

   It was against this backdrop that Pennington County began to re-evaluate its approach to young adult offenders ages 18 to 25. This age group is a significant driver of criminal justice. In Illinois, young adults account for 9.8% of the total population and 33.8% of total adult arrests. (14) They also "stand out as a distinct developmental group with heightened impulsive behavior, risk taking, and poor decision making." (15) Most are not eligible for traditional specialty courts like drug or DUI courts, which are focused on chronic offenders who are one step away from the penitentiary. In fact, there is a significant body of data suggesting that "contact with the youth justice system is inherently criminogenic." (16) The good news is that young adults do not all need intensive supervision: "young people grow out of crime naturally with a decrease in impulsivity and an increase in self-control." (17) The possibility is real that our attempts to "reform" young adults are having exactly the opposite effect.

   We have great hope in attempting a new approach. Diversion has proven to be a hopeful factor in assisting young adults out of the system. Diverged youth have a lower recidivism rate (33.1%) than the control group (41%).(18) Unfortunately, "hopeful" is about all that the data currently supports. Not only are...