Promising Practice: Pre-Arraignment Diversion for Emerging Adults

Executive Summary

In this report, we collate a set of promising practices to support the implementation of pre-arraignment diversion programs for emerging adults. Emerging adults are roughly between 18-25 years of age and are uniquely situated between the developmental stages of adolescence and mature adulthood. This stage of adolescence poses a variety of challenges, because it is developmentally appropriate for this age group to be impulsive thrill seekers who are highly susceptible to peer influence and are ill equipped to assess risk or potential long-term consequences. As a result, they are overrepresented in almost every activity that involves bad judgement, such as: car crashes, accidental drownings, unintended pregnancies, and illegal behavior. The fact that this age group is maturing physically, emotionally, socially, and neurologically also creates a unique opportunity for non-punitive interventions designed to promote better life outcomes for the individuals and safer, healthier communities for everyone. We identify some of the limitations of the criminal legal system’s traditional responses to undesirable behavior for emerging adults and then recommend the implementation of pre-arraignment diversion for emerging adults as an effective way to prevent further criminal legal system involvement by responsibly supporting positive youth development. In this report, we note the key differences between the juvenile and adult criminal legal systems – their goals, strategies, rules, procedures, and resources – and the fact that emerging adults are automatically excluded from the youth system, often limiting (if not eliminating) the opportunity to be diverted before arraignment in a developmentally appropriate manner.

We begin this report by describing the distinct developmental stage of emerging adulthood (also referred to as transition age youth) and the need to implement developmentally appropriate responses within, and adjacent to, the criminal legal system. Next, we analyze how the developmental frameworks of Positive Youth Development and Positive Youth Justice can be used to guide and inform the supports and interventions necessary to nurture young people’s development, especially when designing and implementing pre-arraignment diversion programs for emerging adults. We assess and review examples of pre-arraignment diversion programs for emerging adults, noting that they are relatively rare. Finally, and perhaps most importantly, we identify 13 promising practices derived from the existing examples of, and research on, these programs:

  1. Focus on emerging adults (ages 18 through 25) who would otherwise be formally prosecuted by providing pre-arraignment diversion (considered the “gold standard” of diversion).
  2. Make diversion the default approach and, if deviating from the default, ensure that there is a process for review within the District Attorney’s Office and that the reasons for deviation from the default are clearly articulated and transparent. Diversion should not be prevented because of the specific offense being prosecuted, since charges tell us little about an individual’s ability to benefit from diversion.
  3. Allow more than one episode or incident to be diverted. A hallmark characteristic of adolescence is inconsistency. Consequently, young people’s law-breaking behavior is often episodic, spanning days, weeks, or years. Although the criminal justice system traditionally counts these as separate offenses, the timing should not exclude young people from participating in diversion programming.
  4. Protect statements during diversion from being used against youths later and provide opportunities to consult with an attorney. In order to fully participate without fear of legal consequences, statements made by a youth during the diversion process (e.g., an apology) should not be used against a youth if a case is prosecuted later. Further, emerging adults should be provided with the opportunity to consult with an attorney when deciding whether to accept diversion (and giving up some of their legal rights) and when issues arise during diversion (e.g., inappropriate requirements are imposed).
  5. Preclude future prosecution of the offense upon diversion completion.
  6. Implement developmentally sensitive diversion program terms and conditions. Enforce diversion terms and conditions sensibly. Expect that young people will continue to make mistakes and find proportional and thoughtful responses to both failures and successes.
  7. Refer cases to an accessible network of community-based providers with expertise and experience working with emerging adults for engaging and developmentally appropriate programming.
  8. Tailor program choice to the unique needs and interests of each emerging adult.
  9. Guarantee proper training for staff to ensure that all youth feel safe and are appropriately supported. Staff should be proficient in the Positive Youth Development framework and should also be trained in useful skills (e.g., motivational interviewing).
  10. Empower the expert community service provider to support the emerging adult and develop a plan for programming in collaboration with the emerging adult. Judges and prosecutors should stay out of social work as much as possible.
  11. Defer to short program lengths. Research has shown that oversupervising people is counterproductive. (See burdens of Leniency)
  12. Review the written diversion agreement before termination to provide the emerging adult with closure and to ensure that the scope of the diversion program remains within the agreed upon terms.
  13. Expunge record of system involvement (e.g., arrest) upon completion.

These promising practices offer some guidance on the successful implementation of pre-arraignment diversion programs for emerging adults in ways that not only prevent recidivism but help build towards more positive life outcomes for young people and their communities. We close this report by identifying additional resources that may be of use for further research in this domain.

Emerging Adulthood

Informed by research from the fields of neurobiology, developmental psychology and sociology, the concept of “emerging adulthood” has not always been strictly defined, but it and a cluster of related ideas have been used to understand a developmental phase that is distinct from both early adolescence (i.e., onset of puberty) and mature adulthood. The term was originally coined by Jeffrey Jensen Arnett who defined emerging adulthood as a life phase “between adolescence and young adulthood” (Arnett, 2000). For Arnett, this phase has emerged as people have begun to get married and have children later in life, and generally includes people between 18 and 25, and potentially up to 29 years of age (Arnett, 2014). Laurence Steinberg (2014) uses the language of “extended adolescence” to characterize the period of development that extends from age 18 until the mid-twenties, also noting that people in their early twenties today take on traditional adult roles later than in previous generations. Other researchers have also argued that young adults who are 18-26 years of age today share a variety of developmental characteristics with adolescents, namely a transitory and difficult period of change that is characterized by impulsivity and risk taking and is frequently affected by trauma and adverse life experiences (Institute of Medicine, 2015). These young adults face a variety of distinct social, economic, and cultural conditions that inhibit them from easily stepping into conventional roles of adulthood, and they are subjected to risks and challenges that are distinct from younger adolescence (Institute of Medicine, 2015). Thus, in order to promote life success for court involved youth in this age group, as well as long term public safety, emerging adults require developmentally appropriate attention, policies, and types of intervention that are tailored to address these distinct challenges.

One of the distinguishing characteristics of emerging adulthood as a developmental phase is a greater willingness to engage in risk-taking behavior (Pharo et al., 2011). As McCord et al. (2001) note, “[s]ome lawbreaking experience at some time during adolescence is nearly universal in American children” (p. 68). While emerging adults are more developed and mature than younger adolescents, they are 2-3 times more likely than the younger cohort to experience injury or death (Pharo et al., 2011). Risk-taking behavior is one of the key reasons for this disparity (Pharo et al., 2011). Explanations for this risk-taking behavior among emerging adults vary, but evidence suggests that at some point, the development of the executive, inhibitory functions of the prefrontal cortex in emerging adult brains lag behinds the more sensation-seeking functions, resulting in greater risk-taking (Pharo et al., 2011; Steinberg, 2004). This imbalance translates into a greater rate of risky, illegal behavior than mature adults (Bersani & Doherty, 2018; Scott et al., 2016). Developmentally, this behavior increases during adolescence, tends to peak at ages 18 – 19, and then declines into the mid-twenties (Bersani & Doherty, 2018; McCord et al., 2001; Scott et al., 2016). In a sense, emerging adults “grow out of” this behavior as they develop into mature adulthood.6 On the flip side, research shows that emerging adults are also remarkably malleable (Steinberg, 2014). This malleability enables emerging adulthood to be an “age of opportunity” for promoting healthy growth, rather than simply a time of risk (Steinberg, 2014). If given the right support, resources, and opportunities, emerging adults are likely to flourish developmentally (Steinberg, 2014).


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