Police Discretion with Young Offenders
III. Environmental Factors Affecting Police Discretion
Research has identified a range of circumstances unrelated to the police service, the incident, or the offender that influence the officer's decision to divert or charge (Caputo & Kelly, 1997; Task Force, 1996). One major factor appears to be the range and diversity of public and private resources available as alternatives to formal processing. The availability of informal alternatives influences a police officer's decision to rely on discretion rather than youth court (Gottfredson & Gottfredson, 1988). If a police force has a comprehensive crime prevention strategy in place, based on adequate community resources, the short term effect is the lowering of the number of youth that are processed formally (Hornick et al., 1996). More importantly, the long term effect is a more proactive police role, which tends to reduce the rate of crime and victimization (Hornick et al, 1996).
Our data suggested four types of external resources that are seen by police officers as affecting their decision to charge, and increasing their use of discretion. First, S.69 of the YOA allows for the formation of youth justice committees (YJCs). Many officers indicated that the absence of these committees reduced their options for dealing with youth-related incidents. In some jurisdictions which have YJCs, they have adopted a restorative justice approach. Officers often refer first- or second-time offenders to the committee. These officers deal with youth on a "sliding scale" if possible (depending on the seriousness of the offence). If the young person has no prior contacts with the police, they may consider using informal action (e.g. cases where there is parental involvement, or very minor offences). If the youth has had a prior contact with police, but not with youth court, an officer may make a pre-charge referral to alternative measures or to a youth justice committee, if one exists. In general, officers will take each circumstance into consideration, but upon subsequent offences will usually make a recommendation for post-charge alternative measures or court (depending on the seriousness of the offence). Yet, officers were also willing to use informal action or a YJC, even in cases where the youth had a prior record. It is the availability of a YJC which makes this option viable for them. Thus, they suggested that the presence of a youth justice committee allowed "meaningful consequences" for the young person, without the necessity of exposure to the youth court. These sentiments were often expressed in British Columbia, where it appears that police often refer youths to YJCs instead of filing a RTCC (recommendation to charge) for a minor first or second offence.
A small proportion of the police agencies in our sample (16%) provided documentation for external resources that use a restorative justice approach. One-third of metropolitan police agencies have access to these programs, compared to 16% of suburban/exurban agencies, and 5% of rural/small town police services. The majority of these programs are located in British Columbia (33%) and in the Atlantic provinces (36%). As a province, Nova Scotia has adopted restorative justice as the official alternative measure program for youths and adults. In British Columbia, most of the restorative justice programs are in jurisdictions policed by the RCMP. Our data also suggest that medium-sized police services (with 100-499 officers) are more likely (35%) to have the internal and external resources to facilitate restorative justice practices. Our interview data suggest that virtually all of these programs are facilitated by the existence of YJCs staffed by community volunteers who have received the requisite training. Further, most of these YJCs have a coordinator whose salary is funded by the municipal government.
Officers told us that the availability of appropriate pre- and post-charge alternative measures programs plays a role in their decision-making. The type of community appears to have an effect on the availability of external pre-charge programs. Just over one-third (37%) of the police agencies located in metropolitan areas provided documentation for pre-charge programming, compared to 5% in suburban/exurban jurisdictions, and none in rural/small town areas. Similarly, large police services (with 500 or more officers) were more likely (50%) to have the option of referring youth to pre-charge diversion, compared to 4-18% of smaller services. 66% of police officers in rural and small town areas said they had no pre-charge programs available. In comparison, more than half of the officers in metropolitan and suburban areas stated that pre-charge diversion programs existed within their area. Jurisdictions that do not have the option to refer youth prior to laying a charge often mentioned that this was detrimental to dealing effectively with the youth-related incidents they encounter. They felt this would be an appropriate response in many circumstances, in relation to the type of incident as well as the particular offender. Several officers in Ontario told us that they felt compelled at times to deal with a case which did not warrant simple informal action by laying a charge in order for the youth be eligible for alternative measures, thereby experiencing a "consequence" for his or her actions . These officers in Ontario told us that even in jurisdictions that have pre-charge programs in place, the majority are still referrals made by the Crown Attorney or a representative of the provincial Attorney General's office, not the responding police officer.
It was quite common for officers to voice their frustration about inadequate sanctions given by alternative measures. For example, we were told about
"flimsily written" apology letters being sent to the complainant or victim, which were ultimately more upsetting than the offence itself. In this example, the complainants took the time to call these officers and leave messages for them expressing their dismay and the lack of remorse exhibited in the letters. Other examples cited were Crown Attorneys sending a caution letter instead of forwarding the case to alternative measures, even though the young person and the offence were eligible for AM. In these circumstances, the officers pointed out that nine times out of ten these youth have already been dealt with informally several times. Thus, they felt the young person
"got away with it again". Also, some officers expressed concerns about the quality of pre-charge programming available. They suggested that one location or agency process all pre-charge referrals, instead of having several to choose from that had no regulatory control or stipulations to provide feedback to officers and the Crown.
Appropriate programming for social problems commonly experienced by young people appears to be uniformly lacking across Canada. In all provinces and territories, officers felt that they did not have the appropriate external resources for the effective handling of youths with alcohol or drug addiction, anger management issues, or mental illness (including Fetal Alcohol Syndrome/Fetal Alcohol Effect). Officers in many police agencies said that there were absolutely no programs available for these young people.
Finally, officers were concerned about the coverage provided by Children's Services. In some provinces, youth over the age of 14 do not necessarily have access to their services. One officer explains that this becomes a problem when he has charged a young person for an offence but has no social service agency to call. It is the middle of the night and the safety of the young person is the most important consideration. For example, Mom and Dad might be drunk themselves and cannot take care and control over the youth (or don't want to). In this case, the officer feels that s/he has no choice but to hold the young person for a judicial interim release hearing so that the judge or JP can order the social service agency to investigate.
Several police agencies across the country have undertaken to improve the referral options for their officers, in order to facilitate the use of discretion with youth. In Ontario, official alternative measures programs are practically all post-charge. However, the Windsor Police Service and the Ottawa Police Service have both developed innovative systems for dealing with young offenders. Both organizations have a youth bureau. The Ottawa Youth Intervention Section handles all interventions and diversion referrals, the School Resource Officer program, missing/runaway youth, and street gangs. The Windsor Youth Section deals with all youth-related incidents.
Since 1978, a pre-charge alternative measures program called Project Intervention has been available to police officers in Windsor. A young person becomes eligible for pre-charge diversion if there is sufficient evidence for prosecution. A meeting is held with the investigating officer from the Youth Section, the young person, and the family, at the police station. If Project Intervention is chosen, the youth and the parents sign a referral form which includes the date of the offence, name of the officer, school, grade, address, telephone number, date of birth and the following caption:
I realize that my behaviour has interfered with the rights of other persons. I am prepared to meet with a project worker, share information about myself and make a plan to undo any harm I caused to others. I understand that assuming responsibility for my behaviour and undoing harm is a way of staying out of youth court. You may be charged at the discretion of the police should you not comply with conditions imposed by Project Intervention.
This form and the occurrence report are given to the Project Intervention co-ordinator and a letter is sent to the family within 24 hours with instructions on how to set up an appointment. The meeting is held in the young person's home. If appropriate, the worker calls the victim and attempts to set up a further appointment with the young person, the victim, and the worker. Resulting from the home visit or the meeting with the victim, a compensatory contract is drafted and signed by all parties. Some of the sanctions imposed are:
- One to fifty hours of community service
- A written apology to the victim for the offence
- Partial or complete restitution for damage
- Donation to charity
- Write an anti-shoplifting assignment or essay
- Attend and complete anger management sessions
- Attend and complete victim awareness sessions
- Other sanctions which are appropriate given the nature of the offence (e.g. TAPP-C Program)
Referrals are also made to other social service agencies if further help is required for the young person and/or the family (e.g. family counselling). If the young person fails to complete the compensatory tasks or comes to the attention of the police again during this time period he or she may be dismissed from the program. Finally, a letter is sent to the police officer and the family informing them that the young person has completed the agreed-upon sanctions. A youth can only be referred to Project Intervention once. On subsequent offences, other actions are taken by the youth officer (i.e. other informal action or charging).
Similarly, the Youth Intervention/Diversion Section of the Ottawa Police Service developed a "hot sheet" entitled
"Police Options in Resolving Youth Issues". The Hot Sheet includes referral contacts for prevention, offenders under 12, pre-charge diversion, alternatives to justice, shoplifters under 12, shoplifters over 12, drug and alcohol related, aggressive behaviour, and psychiatric problems. The Youth Section coordinates all referrals within the agency. Project Intervention at the Pre-Court Level (P.I.P.) is used as the primary referral for pre-charge diversion.
- As a result, net widening occurs in two ways. On the one hand, more youths are charged and brought into the system in order to participate in alternative measures. On the other hand, the record of the charge, even if it is withdrawn for alternative measures, influences officers to be more likely to charge these youths on subsequent offences.
-  TAPP_C is an arson prevention program for children aged 2 to 17. It is designed to reduce fire-setting behaviour through an assessment protocol and fire safety education sessions. The educational component is delivered by the Windsor Fire and Rescue Department. The assessment protocol is conducted by mental health professionals. All of the TAPP-C programs which we became aware of weere locatede in metropolitan areas.
-  The John Howard Society operates a program for youth under 12 called
"Kids 1st Program". Referrals are accepted from the Windsor Police Service Youth Section officers (not patrol officers), school boards, community agencies, and parents.
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