Police Discretion with Young Offenders

VI. Conclusions

5.0  Implications for implementation of the YCJA

Our commission did not include making recommendations to the Department of Justice - much less to police - concerning the implementation of the YCJA, and we have not done the kind of thorough analysis of the provisions and intent of that legislation which would qualify us to make recommendations. However, even with our limited knowledge of the statute, some implications of our findings seem so obvious that they bear repeating.

Our research suggests that the main impediment to police diversion of apprehended youth is the lack of suitable programs. The YOA set out an elaborate system of diversion - Alternative Measures - and invited its widespread use with youth, but to a considerable extent it appears that the invitation has not been accepted by the authorities responsible for implementing diversion programs. The great majority of police officers whom we interviewed believe that informal diversion and Alternative Measures are potentially valuable responses to youth crime, but many officers are unable to use them at all, and practically all officers are unable to use them as much as they would like to, because of their unavailability. Thus, they feel that they have no alternative but to lay a charge in circumstances where mere informal action is, in their view, an inadequate response.

At least from the point of view of the police whom we interviewed, post-charge diversion programs are not an attractive alternative. They have little input to the post-charge diversion decision, and are ignorant of its outcome. It is paradoxical to them that they have to lay a charge in order to divert the youth. Our analysis of statistical data lends support to the commonsense view that post-charge alternative measures result in net-widening: increasing the use of formal sanctions.

Apart from diversion programs per se, social programs which can offer help to youth in need or at risk are, according to many of our respondents, woefully inadequate. In the absence of these programs and agencies, police officers sometimes find themselves in the position of surrogate social workers, seeing no alternative to the use of their powers to arrest, charge, and detain youth whose main needs appear to be for protection and assistance, not criminal sanctioning.

Concerning informal action, our conclusion from this research is that it is, and always has been, widely used by police with apprehended youth, and will continue to be under the new statute. However, there is room for a huge expansion in its use. Under the Juvenile Delinquents Act, many police services used informal action with three-quarters or more of apprehended youth. According to UCR statistics, quite a few police services and detachments in Canada, particularly in Quebec and British Columbia, currently charge only 20-30% of apprehended youth. In this respect, the YOA was, in principle, a revolutionary statute, because it explicitly authorized the use of police discretion with youth: to take "no measures" or "measures other than judicial proceedings". Statutory recognition of police discretion was revolutionary because - in principle - it exploded the "myth of full enforcement": the myth, in which much of the public and many police officers continue to believe, that it is the responsibility of the criminal and juvenile justice systems to prosecute all violations of the law, and that failure to do so can only be justified by lack of resources. Under the myth of full enforcement, the use by police of their discretion not to charge is seen as an undesirable expedient which is best concealed behind a discreet curtain of obfuscation. The persistence of this uneasiness can be seen in the joke which we heard repeatedly when we introduced our research to police officers: "Discretion? What discretion?" - or, "Discretion? We don't have any." To some extent this joke is simply a wry reference to the various constraints which police experience in doing their work, but we believe that it also refers to the preference of many officers to minimize the extent of their power not to charge. This uneasiness with the term "police discretion" can be attributed to two sources: first, the perceived desire on the part of the public for full and vigorous enforcement of the law, and second, the ever-present danger that discretion will be used, or be seen to be used, in a discriminatory way. It seems to us that the implementation of the YOA was singularly unsuccessful in legitimating, for both the police and the public, the use by police of informal action with youth. Most police officers continue to see informal action (and pre-charge diversion) as "giving the kid a break", rather than as a legitimate law-enforcement response to a violation of the law. Thus the importance of the record of prior apprehensions: a kid who has received one break doesn't deserve another. Therefore, it seems to the authors that the implementation of the YOA largely failed to achieve in practice what it did in principle: to encourage the expanded use of informal action by police.

The YCJA appears to take this "revolution in principle" a step further, by requiring police to consider informal action with apprehended youth, and by making it presumptive with non-violent first offenders. However, it seems to us that a major educational campaign will be needed to persuade the police, other system agents, and the public that informal action is a fully legitimate and appropriate response to juvenile lawbreaking - just as legitimate and appropriate, in some circumstances, as referral to a program or to court.

We paid a great deal of attention in Chapter II to the epidemic of cases involving administration of justice offences by young persons, since they are subject to such low levels of police discretion. Another revolutionary aspect of the YCJA, in our opinion, is its preference for the use of alternatives to laying a charge in cases of a breach of a probation order - either through extrajudicial measures or an application for a review of the order under Section 59. In cases of failure to appear, it appears that police will no longer be able to find that their discretion is inapplicable, since they will be required to "consider" extrajudicial measures - i.e. using their discretion - before laying a charge. However, as with the use of informal action by police, it seems to us that the implementation of this new way of thinking about administrative offences will require a major effort. It will also be interesting to see how the programs for monitoring of high-risk offenders, such as SHOP and SHOCAP, deal with this challenge to what is one of their major monitoring tools and sources of leverage with their clients.

Concerning the process of laying a charge, we have noted at several points in this report that the two provinces in which police said that the Crown screens their recommendations to charge - Quebec and British Columbia - also have the lowest recorded rates of charging of apprehended youth in the country. Can this be merely a coincidence? It seems not, from the comments of many officers in British Columbia. They told us that they find the system of Crown screening of their recommendations to charge so frustrating that they prefer, wherever possible, to use informal action or pre-charge diversion (not Alternative Measures). The rather perverse implication of this is that one way to reduce the use by police of formal charges is to make the procedure frustrating so that they avoid using it.

Concerning organizational influences on the use of police discretion with youth, our findings suggest that police services which want to increase their use of informal action and of pre-charge diversion, and to reduce the use of intrusive methods of compelling appearance, might consider any of the following measures: wholehearted adoption of the community policing model, in all its dimensions, including a fundamental organizational redesign and philosophical reorientation, the allocation of significant resources to community policing, increased involvement in crime prevention programs, especially in high-crime communities, and the adoption of the POP model by all ranks; creation of a youth squad, or at least one or more officers who specialize in youth crime; adoption of explicit policies and protocols for handling youth crime and young offenders; provision of training in handling youth crime to all front-line officers, and then allowing them to have autonomy in deciding how to dispose of youth-related incidents; assigning investigative and enforcement functions to SLO's who currently are limited to making presentations in schools; increasing the use of proactive policing; and decentralizing decision-making in the organization.

However, once again, we must emphasize that organizational innovation does not take place in a vacuum. Many police managers are perfectly aware of the value of a youth squad, enforcement SLO's, etc., and many police services used to have youth squads, but they were abandoned under the pressure of financial stringency during the 1990's. When money is tight, all sorts of innovative programs are abandoned, and the organization must concentrate on its core activities. The core activities of the police, in the view of most police officers and most members of the public, are routine patrol, and responding to calls for service, i.e. reports by the public of a crime. Police services operating on restricted budgets will give up almost any other activity before these. In this, they can probably count on the support of the public. Therefore, if the various organizational innovations detailed above are to be adopted, a police service must not only receive funding for that innovation, but it must also be assured of an adequate base budget - because if the base budget for traditional policing functions which are expected by the public is inadequate, then inevitably ways will be found to divert the funds for innovation to what are seen by all as core activities.

Our analysis of situational factors in police decision-making has at least one implication for the implementation of the YCJA. This concerns the paramount importance to police of the record of the youth's previous apprehensions, whether or not they resulted in a charge or a conviction. Currently, the recording by police of informal action is quite variable. If one aspect of the implementation of the YCJA is going to be a significant improvement in the recording of informal action, in order to track its use and effectiveness, this may well have the effect of increasing the information available to police on a youth's previous criminal activity - and this may result in an increase in charging. To put it differently, the statutory recognition of what was previously "informal" police action may, implicitly, raise its status to that of "semi-formal" or "formal" action, with a corresponding increase in its influence on a subsequent police decision to charge.

Thus, provisions of the YCJA which were intended to reduce charging may have the unintended consequence of increasing it. This does not seem so far-fetched if one considers some of the totally unanticipated consequences of the YOA: an increase in police charging and an increase in the courts' use of custodial dispositions. One of the authors of this report did research some years ago on the factors affecting dispositions in Youth Court, and found that the youth's prior record was the principal predictor of a custodial disposition; an implication of that research was that part of the reason for the increase in custodial dispositions might simply be improved record-keeping by the Youth Courts. In a similar vein, we note that the police services studied by Black & Reiss in the 1970's did not have the advantages of today's sophisticated Records Management Systems, and patrol officers in the field did not have effective access to the records of youth whom they encountered: therefore, the youth's prior record could not play a role in their decision. Today's patrol officers have computers in their cars, and instant access to whatever information is in the RMS.