Essay: Misdemeanor referrals

Maryland law provides that young people alleged to have committed delinquent acts should be treated differently than adults. In most cases, DJS receives and processes initial intake complaints involving young people. Citizens, schools, and law enforcement can bring complaints to DJS intake, although law enforcement is by far the largest referral source. In Baltimore during FY 2018, law enforcement agencies (including BPD and the Baltimore City School Police) initiated 75% of all complaints to DJS intake. Sometimes police take youth into custody and bring them directly to the DJS intake office, which is co-located with other juvenile justice agencies at the Baltimore City Juvenile Justice Center. In other cases, youth must attend a meeting with a DJS intake officer at a later time.
Upon receiving a complaint from law enforcement, Maryland law requires that DJS’s intake officers conduct a review of each case to determine whether the court has jurisdiction over the matter and “whether judicial action is in the best interests of the public or the child.” This can include a review of the merits of the complaint, a review of relevant records, and interviews with the young person and the young person’s parent, guardian, or caregiver. The DJS intake officer also completes an intake screening tool, which is part of the Maryland Comprehensive Assessment and Service Planning (MCASP), to inform intake decisions. The tool analyzes several factors, including a young person’s delinquency history, social history, and the most serious alleged offense, to help identify cases recommended for formal action.
Upon completion of this process, the DJS intake officer must make a determination among three options for handling the referral: 1) refuse authorization to file the petition for a lack of legal sufficiency or some other factor; 2) propose an informal adjustment of the complaint, which may include “informal case processing” by DJS and referral to programs such as Restorative Response, Teen Court, or Mountain Manor; or 3) authorize the petition and forward the case to the State’s Attorney’s Office for further processing. For the purposes of this assessment, CCLP regards both refusal to authorize the filing of a petition and informal adjustment as diversionary processes that end or limit involvement with the youth justice system.
During the intake process, DJS must also determine whether a young person can safely return home with a parent or caregiver while his or her case is pending, and if so, whether certain conditions are necessary to ensure public safety while the young person awaits resolution of his or her case. In only the most serious cases, the intake officer may deem that secure detention is necessary to ensure public safety. Conditions, supervision, and community-based programs used as alternatives to secure detention represent a special type of diversion, which is addressed in the next section of this assessment report.
CCLP identified three significant barriers to diversion at DJS Intake. First, stakeholder interviews revealed that there is a need to strengthen DJS diversion policies, protocols and decision-making criteria at intake. Stakeholders noted that aspects of DJS’s current diversion policy are unclear and do not incorporate a clear and strong presumption for diversion in appropriate cases. The ambiguity in these policies can result in a significant level of subjectivity among intake officers, including a reluctance to divert cases in the absence of clear guidelines. Additionally, the absence of clear policies or guidelines may mean that some intake officers are engaging in practices that are narrowing diversion opportunities. For example, although DJS rescinded a policy that required youth to admit to an offense in order to be eligible for diversion some time ago, several stakeholders expressed concern that DJS intake officers still impose this requirement on young people that they are considering for diversion.
Second, several stakeholders identified the requirement for victim consent for an informal adjustment as a barrier to diversion at the point of intake. While it is certainly important to respect a victim’s right to be heard regarding a potential diversion decision, stakeholders expressed concern that some intake officers are not as invested in creating diversion opportunities for young people and are not skilled at conveying the documented benefits of diversion for the youth, the victim, and the broader community from a public safety perspective. DJS has acknowledged these barriers and is currently working to remedy them in several ways. For example, DJS is in the process of developing a new clear, objective diversion policy and a quality assurance process for diversion decisions. DJS is also exploring better training for intake staff and the addition of a new family and peer support specialist for Baltimore City. Among other duties, this staff person would be responsible for outreach to victims in support of diversion efforts.
Third, many stakeholders suggested that intake officers may not always consider whether a young person is already receiving existing services or supports that could be adjusted or enhanced in lieu of informal adjustment or formal processing. Stakeholders noted that many youth are often involved with services through multiple public systems and providers and that layering more on top of those services may actually impair the ability of those supports to achieve their intended effect. Many individuals suggested that more rigorous exploration of a young person’s current services and supports would help support increased use of diversion at intake.
Trends in DJS intake data support the hypothesis that there may be significant variability in diversion practices at DJS intake, both within Baltimore City and between Baltimore City and the rest of the state. As mentioned above, DJS Intake received 1,783 referrals in Baltimore City in FY 2018. As shown in Figure 1, 16% of these cases were resolved at intake, 6% were “informaled” (placed on pre-court or informal supervision), while 78% of cases were “formaled” (authorized for a formal petition and referred to SAO for further processing with the juvenile court). In contrast, for the rest of Maryland, 42% of cases were resolved at intake, 16% were informaled, and only 42% were referred to SAO for formal processing. These data indicate that a much larger percentage of intake referrals were authorized for a formal petition in Baltimore City than in the rest of the state, which is a cause for concern and a call for more in-depth analysis.
Stakeholder interviews surfaced several possible hypotheses to explain why the percentage of intakes authorized for formal petition in Baltimore City is nearly double that of the rest of the state. First, there is a general perception among stakeholders that referrals appearing at DJS intake in Baltimore may be of a more serious nature than those appearing at DJS intake across the rest of Maryland. Others suggested that the higher rates of formal processing may reflect the fact that youth in Baltimore City may have previous referrals or contact with law enforcement at a higher rate than youth from the rest of the state, which could make it less likely that intake officers would accept a referral for diversion.
To dig more deeply in the nature of the difference in intake diversion rates, CCLP examined rates of formal petitioning by offense category at intake (i.e., crimes of violence, felonies, and misdemeanors) for Baltimore City as compared to the rest of the state. Unsurprisingly, as noted in Figure 2, crimes of violence referrals at intake were formaled at high rates: 99% in Baltimore City as compared to 91% in the rest of Maryland. Similarly, 93% of felony referrals at DJS intake in Baltimore were formaled, while 87% of felony referrals in the rest of Maryland were formaled. Thus, the percentages of formaled referrals for Crimes of Violence and Felonies in Baltimore City are higher than the percent formaled in the rest of Maryland by 8% and 6%, respectively.
During this assessment, stakeholders hypothesized that the difference in authorized formal referrals for felony referrals might be driven by differences in the handling of felony drug cases between Baltimore and the rest of the state. While this may not fully account for the difference for felony referrals overall, data confirm that 16% of felony drug referrals in the rest of Maryland were resolved or informaled at intake, while only 5% of felony drug referrals in Baltimore City were diverted. It is important to note that Maryland state law requires that SAO must authorize any informal handling of felony cases at DJS intake, so it is possible that this difference is a result of differences in SAO decisionmaking rather than decisions made by DJS intake officers regarding informal handling of this case type.
As illustrated above in Figure 2, the largest difference in percentage of formaled intake referrals between Baltimore City and the rest of Maryland was for misdemeanor referrals. In the rest of Maryland, only 35% of misdemeanor referrals at DJS Intake were authorized for a formal petition. In Baltimore City, however, that percentage was significantly higher, with 52% of intake cases formaled.
As depicted in Figure 3 below, the percent of formaled misdemeanor referrals in Baltimore City is consistently higher across all misdemeanor categories when compared to the rest of Maryland. The largest difference is for unspecified misdemeanors and drug misdemeanors. It is difficult to draw conclusions from the comparison for unspecified misdemeanor cases, as there was a very small number of these cases in Baltimore (18) as compared with a much larger number for the rest of state (352). However, the large difference in percent of formaled referrals in other misdemeanor categories raises significant questions about access to diversion across Maryland jurisdictions, particularly the large difference in formal processing rates for misdemeanor drug referrals. In Baltimore, 68% of misdemeanor drug cases were formaled, while only 27% of these cases were formaled in the rest on Maryland, a difference of 41%.
Misdemeanor referrals present one of the best opportunities for early diversion. The fact that a significantly larger percentage of misdemeanors referrals are formaled in Baltimore City is cause for concern and deeper investigation. It is possible that many of the formaled misdemeanor referrals were deemed ineligible for diversion due to prior referrals or current status with DJS, among other possible reasons. If this is the case, stakeholders should consider specialized diversion pathways and services that would be appropriate for youth with prior referrals or who are currently under supervision. Also, because drug referrals seem to be a significant driver of different rates of formal handling between Baltimore City and the rest of Maryland, officials should consider whether resources targeted specifically to address substance use and involvement in the distribution of controlled substances would enhance diversion opportunities for this subset of cases.
It is important to note that the analysis above does not compare rates of authorized formal petitions between Baltimore and the rest of the state for citations, ordinance violations, and children in need of services referrals. During FY 2018, Baltimore had very few of these kinds of referrals compared with the rest of the state. Due to the small number of cases in Baltimore City, a comparative analysis of case forwarding decisions for these referral types between Baltimore and the rest of the state would likely render misleading results. The fact that Baltimore has so few citation and ordinance violation referrals, which are for low-level behaviors such as tobacco and alcohol possession, suggests that law enforcement and others are not making arrests and referrals to the justice system for those reasons. This is encouraging, as it is a clear indication that law enforcement and others in Baltimore City are focusing resources on more serious situations.