Net-widening and the diversion of young people from court: a longitudinal analysis with implications for restorative justice.

• Jurisdiction: Australia
• Author: Prichard, Jeremy
• Date: 01 April 2010

Internationally, many youth justice systems aim to divert young people from court through informal mechanisms, such as police cautions and restorative conferences. Among other things, diversion avoids the potentially criminogenic effects of formal contact with the criminal justice system. However, in some instances, the sum of court appearances and diversionary procedures indicates an overall increase in the numbers of young people having contact (formal or informal) with the criminal justice system--a phenomenon known as net-widening. This article summarises previous debates about the risks of net-widening. It then presents results from analysis of over 50,000 police records pertaining to young people's contact with the Tasmanian criminal justice system between 1991 and 2002. Across that decade, court appearances markedly reduced, while a corresponding increase in diversions was recorded. There was no evidence of net-widening. However, there was a significant increase in detention orders. Implications for policy and future research are considered.

Keywords: justice, youth sentencing, net-widening, restorative

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With access to previously unavailable police data spanning 1991-2002, this article presents an original empirical analysis of the youth justice system in Tasmania. It concentrates upon the macro-level functioning of the system, which was substantially restructured in 2000. Two main macro-level questions are addressed. First, what percentage of young offenders were diverted from court to police cautions and restorative justice conferences from 1991 to 2001 as part of a new diversionary system? Second, has this new system increased the number of young people having some form of contact with the criminal justice system?

The first section of this article presents previous debates about the implications of, and potential for, net-widening for youth diversion systems. In the second section, a brief description of the development of the system in Tasmania is provided. The remainder of the article details how the data were prepared for analysis, what the key findings were, and what conclusions can be drawn.

Net-Widening and Youth Diversion Systems

Net-widening is a term that is used in criminology to refer to an increase in the number of people having contact with the criminal justice system as the unintentional result of a new practice. The phenomenon has been associated with different criminal justice policies, including deterrence, decarceration, community-based corrections and diversion (Austin & Krisberg, 1981; Curran, 1988; Geller et al., 2006). Austin & Krisberg (1981, p. 165) famously broadened the definition of net-widening to include 'wider, stronger and different nets', meaning: an increase in the duration or severity of criminal justice interventions in people's lives; or the transfer of authority to intervene from one agency to another (see Roberts & Indermaur, 2006). A related phenomenon is when practices cause people to be projected more deeply into the criminal justice system than is usually warranted for the offence they have committed.

The focus of this article is upon net-widening in the context of the diversion of young people from court. Young people can be diverted from court to a different intervention. However, a decision not to prosecute a young person equally qualifies as a form of 'diversion' (Alder & Polk, 1985). Various diversionary schemes exist around the world (Hoyle et al., 2002; Macallair & Males, 2004; Sarre, 1999). Diversion has a number of aims, chief among them the avoidance of what appears to be the criminogenic effects of court appearances, criminal records and incarceration (Farrington, 1977; Gold & Williams, 1970). Other apparent benefits of diversion include cost savings and the reduction of pressure on overburdened Children's Courts (Morris & Maxwell, 2003).

Practitioners in New Zealand and Australia have witnessed the emergence of broad youth diversion systems over the last 20 years. All Australian jurisdictions have legislated for diversionary systems incorporating formal police cautions and restorative justice conferences (Maxwell & Hayes, 2006; Polk et al., 2003; Strang, 2003). (l) Formal cautions are conducted by police officers, usually at police stations. They are generally a simple format involving the youth, an officer and a guardian or responsible adult. In some jurisdictions the victim is invited to attend. Typically, the purpose of the caution is to explain to the offender the impact of their offence and the possible consequences of future offending behaviour. As discussed below, like other jurisdictions, Tasmania's youth diversion system also includes informal cautions (very brief cautions officers give young people for minor offences) and cannabis cautions (a specific cautioning process incorporating, among other things, information on the health effects of cannabis).

Conferences--in which offenders, together with significant others, meet with victims to discuss the crime and how harms may be rectified--have become increasingly popular with practitioners, policymakers and theorists, not least because they appear to reduce recidivism (Ahmed et al., 2001; Hayes & Daly, 2004; Latimer et al., 2001). Aside from potential benefits of conferences for victims and communities (Bazemore, 1997; Zehr, 1990), restorative justice advocates have suggested that young offenders may benefit from avoiding stigmatisation, strengthening bonds with significant others and, the opportunity to personally make amends for their actions (Braithwaite, 1999; Crawford & Newburn, 2003).

Early debates about the value of conferencing centred upon its possible side-effects. Many commentators were concerned about police involvement with conferencing systems and the possible expansion of police power (White, 1994; Sandor, 1993, 1994). It was argued that police practices might result in net-widening. Of particular interest was the gate-keeping role entrusted to police in a number of jurisdictions (Blagg & Wilkie, 1997). Gate-keeping refers to the capacity of officers to determine which young people are dealt with informally, which are to be diverted to a caution or conference and which are to be sent to court. Polk (1994) suggested that net-widening might occur through police enthusiasm for diversionary procedures. That is, believing conferences to be truly beneficial for young offenders, the police might choose to divert young people whom they previously would have dealt with informally. In other scenarios, net-widening might be driven by the police diverting mostly those cases that they are not interested in processing themselves and which previously they might have disregarded (Braithwaite, 1999).

Welfare agencies involved in operating diversionary schemes may also contribute to net-widening, for instance by actively seeking more referrals from the police (Braithwaite, 1999). This may, in turn, attract more funding and expansion of the overall diversionary scheme (Condliffe, 1998). Such dynamics conform to the laws expounded by Parkinson (1958) on the nature of organisations, namely that organisations--in this case diversionary systems--tend to perpetuate and expand themselves, inadvertently or otherwise.

As diversionary options expanded in the 1990s, others saw risks arising from changes to the legal processing of young people. Generally, youths are required to admit they have committed an offence before they are eligible for diversion. It was argued that this might entice innocent youths to plead guilty in order to avoid court proceedings. Warner (1994) detailed a whole raft of other legal issues that, even without any deliberate misuse of police power, might conspire to draw more youths into the justice system and yield more convictions (see further, Condliffe, 1998; von Hirsch et al., 2003).

In these reviews, net-widening is assumed to be detrimental--but is it necessarily a negative? Certainly with the contemporary focus upon prevention and early intervention in child and youth services, it seems palatable that diversionary systems should expend resources that may have the effect of stalling or stopping young people's progression along criminal pathways. Similarly, in their discussion of the potential of net-widening in the context of adult drug diversion, Roberts and Indermaur (2006) acknowledge that health agencies might appreciate net-widening as a means of reaching and assisting people affected by substance misuse behaviours.

Braithwaite too suggests that net-widening, in some circumstances, may benefit young offenders and others. Net-widening may bring hitherto unaddressed social problems, such as family violence, to the community's attention (Braithwaite, 1994). In keeping with his normative republican theory of criminal justice (see Braithwaite & Pettit, 1990), conferences (and restorative justice generally) can, he says, become a state-supported framework for the expansion of individual sociopolitical freedom and a positive form of grassroots community control. Braithwaite argues that net-widening that facilitates this expansion is, of itself, 'a good thing' (Braithwaite, 1999, p. 91).

However, contrary views exist concerning the dangers of net-widening, including that police cautions, conferences and court appearances are all forms of state intervention that widen the nets of social control. Polk (1994, p. 130), for instance, emphasised the 'ever present coercive threat of the court' to argue that conferences are not a true form of diversion, only an alternative form of 'justice processing'. Diversion, moreover, increases expenditure on minor offenders--the bulk of whom are likely to desist from criminal behaviour without intervention--and draws resources away from addressing the complex needs of repeat offenders (Macallair & Males, 2004; Sandor, 1993; Schelkens, 1998). Cohen (1985) raised another possibility, perhaps fitting best under the...