Every day in the United States, nearly 53,000 youth are confined in facilities away from home by the juvenile or criminal justice system. Thousands of these youth have not yet even had their day in court and many are there for nonviolent, minor offenses — some for misbehavior like truancy that would not even be an offense if they were an adult.
While we have made enormous progress in many states in reducing detention numbers and closing prisons, too many youth are still spending the night behind bars. Surprisingly, New Zealand provides the United States with a helpful model for effective ways to right size our system by limiting arrests.
New Zealand’s limitations on arrests, charging
Many have heard of New Zealand’s adoption of the widespread use of restorative justice practices in their youth justice system through groundbreaking legislation in 1989: the Children’s and Young People’s Well-being Act (1989 Act), also called the Oranga Tamariki Act. A lesser-known story — and one with great relevance for our country’s high youth confinement rates — is how New Zealand dramatically shrank their youth justice system. They did this through an intentional effort to reduce the number of youth getting in the front door of the system, in part by legislating limits on arrests.
Thirty years ago, New Zealand found itself with a broken youth justice system that was overburdened, ineffective and had resulted in an incarceration rate for young people that was one of the highest in the world. The public was losing faith in the system as it was riddled with problems, including inappropriate and large number of arrests of youth for minor offenses. Police, having lost confidence in the efficacy of the diversion systems, were bypassing them and going straight to an arrest. As a result, an increasing number of petty offenses ended up in court, leading to what practitioners called “Mars Bars” kids — youth committed for shoplifting candy.
In order to make court processing a last resort, the 1989 Act severely restricted the powers of the police to arrest without a warrant so that arrest is used mainly for serious offenses (potential penalty of at least 14 years). These changes made a dramatic difference — arrests now occur in only about 12 percent of all cases of youth offending. Rather than use the power of arrest, police handle many minor incidents (approximately 43 percent of all youth offending) through a warning to the young person.
When the police determine that a warning is an insufficient response to a youth’s behavior, they can refer the case to Police Youth Aid — a specialized and highly trained section of the police force. The Police Youth Aid have a range of actions they can take that include placing youth in a diversion program.
These changes have not resulted in increases in youth crime. In fact, youth crime remained stable or dropped over the decades: Most recently, youth crime declined by 33 percent from 2011 to 2017.
Taking New Zealand’s lessons home to U.S.
The United States infrequently limits the ability of the police to arrest. However, we have seen success with voluntary prearrest diversion programs on which there is room to build. For example, in Florida civil citation programs have shown promising results. Pursuant to this pre-arrest diversion program, law enforcement officers have the option of giving young people a civil citation for nonserious misdemeanors instead of arresting them. The youth then is assessed by a civil citations coordinator who determines their needs and can assign intervention services, treatment and/or sanctions.
Youth who complete the program successfully are spared both an arrest record and being formally charged. Studies of the Florida civil citations program have found significant reductions in recidivism. Florida’s 12-month recidivism rates for fiscal year 2011-12 showed a 4 percent recidivism rate for youth given a civil citation, compared to 13 percent for post-arrest diversion.
Delaware has a similar program called the Juvenile Civil Citation Program, which they expanded in 2017 to include a wider range of offenses. In a similar vein, the New Orleans City Council passed an ordinance in 2017 that allows police officers to warn youth or issue them court summonses, rather than arresting youth for minor offenses.
A number of jurisdictions have also worked with school systems to divert youth before they are arrested. In Clayton County, Georgia, Judge Steven Teske worked in partnership with the police department and the school district to reduce arrests by first giving students a warning for low-level offenses and then referring them to a conflict diversion or mediation program. The effort has decreased school-based arrests by more than 80 percent and has actually increased school safety by greatly reducing weapons and fighting in schools.
Replicating these types of prearrest diversion programs in jurisdictions throughout the country should be a priority in order to make greater strides in closing the front door to the youth justice system. We could also take these great local ideas a step further and create more widespread reductions of youth arrests by passing state laws to limit arrests, such as laws that mandate police use of civil citations in certain circumstances.
Arrests should be a last resort for youth regardless of their ZIP code or race. There is a better way to deal with most youthful misbehavior than arresting, locking up and creating permanent records for youth that may impede the possibility of a successful future for them. Let’s take a page from New Zealand’s playbook.
Melissa Coretz Goemann is the senior policy counsel for the National Juvenile Justice Network.