School Discipline in Massachusetts Today

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by Marlies Spanjaard

Legal Analysis

Even if you haven’t heard the term “school-to-prison pipeline,” you probably know what it describes:  The national trend by which students are funneled out of the public schools and into the juvenile and criminal justice systems.  Instead of getting the education they need, generations of our state’s most vulnerable children have been pushed out of the classroom and into jail by schools with inadequate educational programs and zero tolerance disciplinary policies and practices.  Suspension or expulsion from school can play a major role in pushing students into this pipeline.  Unfortunately, these types of exclusions have increased dramatically in the last fifty years across the country.  Massachusetts is no exception.  Since the 1970s, schools have experienced a massive shift in how they respond to misbehavior in the classroom.  The suspension rate for all students has nearly doubled, with students of color and students with disabilities incurring exclusion at an even greater rate.  In Massachusetts, 17% of all incidents involved low-income Black or Latino students receiving special education, a rate that is estimated to be 10 times greater than their enrollment.  See http://lawyerscom.org/wp-content/uploads/2014/11/Not-Measuring-up_-The-State-of-School-Discipline-in-Massachusetts.pdf.

In 2012, the Legislature enacted G.L. c. 71, § 37H¾, the first law to address school discipline reform in almost twenty years.  The legislature sought to address distressingly high rates of exclusions and provide education services for children who are excluded.

Unlike the preexisting §§ 37H and 37H½, the new § 37H¾ provides procedural protections for students receiving both short term and long term suspensions – short term being under 10 days and long term being 10 days or more.  Reflecting current research and best practices demonstrating that school exclusion is harmful to children and should be a last resort, § 37H¾: (1) requires that the decision maker, typically the school principal, exercise discretion, consider ways to reengage the student, and avoid any long term exclusion until other non-exclusionary alternatives have been tried; (2) prohibits a student’s exclusion for non-serious offenses from exceeding ninety days in a single school year; and (3) requires school districts to provide educational services to students who have been excluded from school for more than 10 days in order for them to make academic progress during the period of their exclusion.  (Prior to the law, a non-special needs student excluded from school had no right to any educational services).

Now, four years into the implementation of § 37H¾, much still remains to be done to address the school to prison pipeline in Massachusetts.  Massachusetts is heralded as having the best public schools in the nation, but access to this system is not equitable.  Massachusetts schools continue to have high suspension and expulsion rates; racial disparities in exclusions continue to be higher than the national average; and the academic services offered to excluded students continue to vary greatly in quality.  Massachusetts must do better, and this article suggests four ways that it can do so.

Provide Robust Procedural Protections for Students Facing Even Short Term Exclusions

First, § 37H¾ provides few procedural protections for students receiving short term suspension – defined as suspensions that are less than 10 days. Under the current law, students who are excluded for less than 10 days receive the opportunity to be heard, but there is no requirement that a parent be present.  While the regulations require the principal to articulate the basis for the charge and to allow the student to present mitigating circumstances, this rarely happens.  Often, a school official informs the student of his suspension while face-to-face, or by calling his parent.  There is also no mechanism for appealing short term suspensions to the superintendent, so these determinations are often final.

Even a short term suspension can drastically impact the student’s achievement.  Each day of exclusion is a missed day of instruction, and can lead students to fall behind.  See https://www.civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/summary-reports/suspended-education-in-massachusetts-using-days-of-lost-instruction-due-to-suspension-to-evaluate-our-schools.  Furthermore, a student who is excluded is left to spend his days out of school without any structure or support, which significantly increases his chances of engaging in delinquent behavior and finding himself in court.  Given that students facing exclusion are often already struggling academically and emotionally, exclusion, even for a short duration, can have a tremendous impact.  Providing robust procedural protections for students facing even short term exclusions would ensure that we are taking the opportunity to address student challenges at their root, rather than waiting until things have already progressed to the point where a student is facing a long term exclusion or expulsion

Clarify The Robust Procedural Protections For Student Facing Exclusion Under Sections 37H And 37H½

Second, § 37H¾ regulates the school’s response to misbehavior that the state has defined as “non-serious exclusions.”  Sections 37H and 37H½ in contrast, regulate the school’s response to misbehavior involving weapons, drugs, assault on educational staff, and any felony charges or convictions.  Under the current statutory scheme, students who are being disciplined for allegations of non-serious behaviors under § 37H¾ have more robust protections delineated than students who are facing more serious allegations and consequences under §§ 37H and 37H½.  The result in practice is that students facing the serious allegations are often not afforded the appropriate due process because it is not specifically delineated in the statute, although it is supported by the case law.  This discrepancy in the statutory scheme is difficult to square with the research demonstrating that exclusion for both “non-serious” and “serious” offenses equally impacts student achievement.  Requiring additional procedural protections does not prevent schools from implementing serious disciplinary consequences if the principal determines such consequences are warranted; they simply require the school to take steps to ensure that the offense occurred and was committed by the student being disciplined, and to hear the whole story including mitigating circumstances before imposing very serious and potentially life altering consequences.  The law should be amended so that it is clear that students who are facing discipline under §§ 37H and 37H½ are entitled to all of the procedural protections received by students facing discipline under § 37H¾.

Limit The Authority Of Principals To Exclude Students For Out Of School Conduct

Third, the provisions of § 37H½ that allow exclusion of a student who has a pending felony charge or conviction upon the principal’s determination that the student’s continued presence would have a detrimental effect on the school’s general welfare sweeps too broadly.  Although the layperson thinks of “felonies” as charges such as murder or manslaughter, § 37H½ has been used to exclude students charged with felonies reflecting normal adolescent behavior, such as riding in the backseat of a car that turned out to be stolen, fighting, or stealing an iPhone.  The law gives principals the discretion to exclude a student based solely on the existence of a criminal charge.  Principals are educators, not judges.  They are not trained to make these determinations, and are often being asked to decide a student’s fate with limited information.  In fact, the information a principal has is sometimes obtained in violation of student privacy protections as juvenile court proceedings are confidential.

Further, available data illuminate a serious problem with disparities in both race and disability status of the young people who face juvenile court charges.  Massachusetts is one of the few states that allow this type of exclusion based solely on an allegation, despite the notion that one ought to be presumed innocent until proven guilty.  Barring a complete removal of a principal’s ability to exclude based on a mere allegation, the statute should be amended to reflect the Department of Elementary and Secondary Education’s 1994 advisory, which said that § 37H½ should only be used for serious violent felonies.  One approach could be to align § 37H½ with the Youthful Offender Statute.

The Youthful Offender statute, G.L. c. 119, § 54, allows prosecutors in circumstances where they feel a child has committed a serious offense to indict a child as a youthful offender, subjecting them to treatment as an adult.  The statute applies to: youth who have previously been committed to DYS or are accused of causing or threatening serious bodily harm, or any charge involving a gun.  If the statue focuses on the realistic threat to school safety, those who are alleged to have committed minor, non-violent crimes will be excluded at a lower rate.  Furthermore, youthful offender cases are open to the public, which would allow everyone the opportunity to have the same information and wouldn’t incentivize the disclosure of confidential information currently protected by the juvenile court.

Limit The Definitions Of “Assault” And “Weapon” Under Section 37H.

Finally, § 37H should more clearly define the terms “assault” and “weapon.”  Section 37H defines “weapon” in a way that explicitly includes guns and knives, but is otherwise vague.  This has permitted principals to expand the definition of “weapon” to sometimes comical levels, such as a case in which a student was excluded under § 37H for possessing a paperclip.  Similarly, “assault,” which also is not definite under § 37H, has sometimes been applied to include a “menacing” look from a student, unintentional contact with a teacher, or contact made with a teacher by a kindergartener during a tantrum.

Changing § 37H to clarify that all the elements of an “assault” must be present before expulsion, including specific intent and imminent harm, would lower exclusions. Currently, a broad spectrum of actions may be considered an “assault,” including unintentional acts or acts where there was no actual threat of harm.  Further, the definition of “weapon” should be changed to match the federal definition of “dangerous weapon” under 18 U.S.C. § 930: A “device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2½ inches in length.”  A school could still short term suspend students under § 37H ¾ for any item banned in their student handbook, but this change would limit the amount of students permanently excluded.  These simple changes will reduce exclusions and keep students in the educational environment they so desperately need.

Conclusion

Section 37H¾ has significantly improved school discipline practice in Massachusetts, but much remains to be done.  Some schools are excluding upwards of 50 percent of their student body each year.  Students of color are still suspended at much higher rates than their white counter parts.  By adopting the changes suggested above, Massachusetts can continue to improve on the progress already made.  Massachusetts has long been at the forefront of progressive approaches to student misconduct, recognizing students as individual children in need of compassion and support rather than bad apples that need to be pushed out.  By amending our laws to reflect the above changes, Massachusetts can continue to play a role as a leader in the field.

Marlies Spanjaard, MSW, JD, is the Director of the EdLaw Project, a statewide education advocacy initiative housed within the Youth Advocacy Division of the Committee for Public Counsel Services.   She is a recognized expert on education law and school-to-confinement pathways.  A passionate and dedicated advocate for vulnerable youth in Massachusetts, her work focuses on increasing education advocacy among the juvenile and child welfare bars to ensure children are supported to succeed in school and stay out of the court system.


Deconstructing the School-to-Prison Pipeline

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by Hon. Jay Blitzman

Voice of the Judiciary

The Supreme Court has abolished the juvenile death penalty, mandatory juvenile life without parole, and in acknowledging the reality of adolescent brain development, has outlined a regime of proportional accountability. Children are constitutionally different than adults. Research has demonstrated that reducing detention also reduces recidivism by promoting the socially connective tissue of family, school, and community that is vital to positive youth development. We can protect public safety at less cost. Youth who do not graduate from high school are eight times more likely to later be arrested and it costs three to five times more to incarcerate than to pay for public education.

The message of proportional accountability has implications in all contexts, including zero tolerance in schools, mandatory transfer and collateral consequences. However, in an era of dramatically declining juvenile arrest rates, this promising landscape has been complicated by a counterintuitive narrative – the recriminalization of status offense conduct that was decriminalized in the aftermath of In Re Gault, 387 U.S. 1 (1967). This has manifested itself in various forms, including treating status offenders as probation violators in some states and imposing conditions of supervision which are status offense-like in nature (e.g. attending school without incident), and  commitments for probation violations not related to re-offending.  This article focuses on another aspect of this process- the surge of school referrals to juvenile justice which, as discussed in Arrested Futures, a collaboration between the ACLU of Massachusetts and the Massachusetts Citizens for Juvenile Justice, has unfortunately involved many arrests for essentially non-violent normative adolescent behavior.

Nationally about 84% of youth in the juvenile justice system are there for non-violent conduct and over two-thirds of this number are youth of color.  Although detention and commitment rates have declined, racial and ethnic disparities have increased. In 2017, the Sentencing Project reported that African-American youth are five times more likely to be held than whites, Latino youth are 65% more likely to be held, and Native American youth were three times more likely to be detained. LGBTQ- gender non-conforming youth comprise 5% of the nation’s youth population, but 20% of those are detained and 85% of that number are youth of color.  Over 75% of children who appear in juvenile sessions have mental health or clinical issues as courts have become default service providers.

Issues affecting children should be considered in the context of the larger systems that affect them. The multi-faceted factors that contribute to the school-to-prison pipeline implicate fundamental questions of race and class.  As Marian Wright-Edelman has observed, the school-to-prison pipeline runs through economically depressed neighborhoods and failing schools. Over sixty years after Brown v. Board of Education held that separate in public education is per se unequal, our schools remain segregated. The issue is national in scope. New York City, for example, has perhaps the most segregated school system in the country.  In a real sense we live in a world that is still separate and unequal. Access to adequate public education remains an access to juvenile justice issue. Professor Charles Ogletree has concluded that as regards Brown’s legacy, there is little left to celebrate.  In The Color of Law, Richard Rosenstein attacks the premise of de facto segregation, arguing that geographical segregation is the result of race conscious de jure actions which have included zoning, housing, school siting, and urban renewal polices.

Where people live matters. The Boston Globe recently reported that the Brockton school system was only able to spend $1.28 per student on classroom supplies during the 2016-2017 school year, while Weston allotted $275.00 per student. The adverse impact of geographic segregation is reflected in the reality that we see the same children and families in the child welfare system as we do in the juvenile system, with the same rates of racial and ethnic disproportionality. Between 2010 and 2012, 72% of the children committed to the Massachusetts’ Department of Youth Services had been involved with the Department of Children and Families (DCF.) and over half of that number’s families had been involved with DCF before they were five. Every time a child’s placement in foster care is changed it is estimated they lose six months of educational progress which compromises their ability to graduate. Marian Wright-Edelman and others now use the phrase cradle-to-prison pipeline.

Police have been in schools since the civil rights era, but after the 1999 school shooting in Columbine, police presence in schools accelerated exponentially as did the expanded use of “zero tolerance” formerly reserved for guns and drugs.   Police were placed in schools without first considering their relationship with educators and the scope of their authority.  Police officers were largely placed in schools serving students of color, schools which had never had a Columbine type of incident. New York City, for example, has over 5,400 school police officers.  The unregulated deployment of police in schools, coupled with zero tolerance, has fueled the pipeline and adversely affected schools of color.  While these practices may be rationalized as logical responses to protect children, National Center for Education data shows that reported incidents of school violence had peaked in 1994, well before Columbine, and that national juvenile arrest rates had reached their high point in 1994, and by 2016 had declined by 70%.  The effects of these policies were apparent. In 2000, over three million students were suspended and over ninety-seven thousand arrested. African-American students have been three-to-five times more likely to be suspended than white students for comparable behavior, underlining the mythology of race-neutral zero tolerance.

The reality of the “pipeline” was demonstrated in 2012, when the Department of Justice accused the city of Meridian, Mississippi of operating a school-to-prison pipeline. Named defendants included the schools, police, judges, probation officers, and the state’s Department of Human Services and Division of Youth Services. While the circumstances are rarely as overt. The pipeline exists and deconstructing it requires a multi-faceted response.  The Juvenile Detention Alternative Initiative JDAI), and the MacArthur Foundation’s Models for Change are examples of data based initiatives that encourage cross-system dialogue and examine evidence based practices to better protect public safety while promoting positive youth development.  Massachusetts features a robust partnership with JDAI by partnering with court professionals and practitioners in an effort to decrease unnecessary detention and address racial and ethnic disparities. Adopting more proportional and strength based models in engaging youth in lieu of zero tolerance regimes, as recommended by the American Psychological Association and the American Bar Association (ABA), coincides with the Supreme Court’s message of proportional accountability.  Restorative justice, especially as applied in schools and communities in lieu of court referral, is an example of a public health oriented approach. Massachusetts juvenile justice reform, enacted this year, expanded diversion opportunities and allowed for the expungement of records for the first time, in certain circumstances. Of particular importance is the legislation’s call for school districts to develop memoranda of understanding to inform the relationship of school resource officers and educators. This would provide a framework for conversation and exploration of alternative action. Given the school shooting in Parkland, FL, the need to capitalize on this legislative opportunity cannot be over-emphasized, unless we wish to revisit the unintended consequences that followed Columbine.  Promulgation of memoranda of understanding is consistent with JDAI initiatives and resolutions adopted by the ABA.

We have made progress through systemic dialogue, use of data, and the development of memoranda of understanding. However, to truly deconstruct the pipeline we must tackle the underlying structural realities which fuel implicit bias and the school/cradle-to-prison pipeline. Equal Justice Initiative’s Bryan Stevenson has stressed that in order to have truth and reconciliation we must address the realities of our history. Hopefully, the Boston Bar Association’s focus on this important subject will prove to be a step in the right direction.

Judge Jay Blitzman is the First Justice of the Middlesex Division of the Massachusetts Juvenile Court. Prior to his appointment he was a co-founder and the first director of the Roxbury Youth Advocacy Project, a multi-disciplinary public defender’s office, which was template for the creation of the statewide Youth Advocacy Division of C.PC.S. Jay is also a co-founder of the Massachusetts Citizens for Juvenile Justice and Our RJ, diversionary restorative justice program.  Jay writes and presents regularly at a variety of forums.  His most recent publications are, Gault’s Promise Revisited: The Search for Due Process (Juvenile and Family Law Journal, NCJFCJ June 2018), The State of Juvenile Justice (ABA Criminal Justice Section, June 2018), Realizing Gault’s Promise ( Arizona Attorney, May 2017) and Are We Criminalizing Adolescence? (ABA Criminal Justice, May 2015).  Jay has held a variety of teaching positions. He currently teaches juvenile law at Northeastern University School of Law, and is a team leader at Harvard Law School’s Trial Advocacy Workshop program. Judge Blitzman is a member of the S,J.C. Standing Committee on Eyewitness Identification and the S.J.C. Jury Advisory Committee.


Transition H.O.P.E.: Boston Public Schools’ Efforts to Assist System-Involved Youth

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by Janelle Ridley

Viewpoint

Janelle Ridley works for the Boston Public Schools (BPS) as the Coordinator for System-Involved Youth. She is an expert in identifying and implementing services to aid youth in transitioning from detention back to BPS, and seeks to intentionally foster educational equity and actively work to dismantle the school-to-prison pipeline.

No one can contest that Black and Brown boys are overrepresented in the juvenile and criminal justice systems. Boston is not an anomaly; this has been a national crisis since the 1980s when zero-tolerance policies were introduced by former President Ronald Reagan’s administration at the onset of the “War on Drugs.” Once Congress passed the Drug-Free Schools and Campuses Act of 1989, school districts across the nation implemented zero-tolerance policies that have since criminalized seemingly innocuous behavior that is often due to trauma, poverty, and a plethora of reasons that make it impossible for students to function in a traditional school setting. Thus, agencies and individuals alike must be intentional about our approach in working with our youth to address the root causes and not merely criminalize the symptoms. In light of the aforementioned, this article will explore the efforts of Boston Public Schools (BPS) and others are making to ensure EVERY student has access to equitable educational opportunities. First, I will outline my work in this area.  Next, I will describe Transition H.O.P.E., a pilot program launched in Summer 2018 to assist youth who have been detained at DYS facilities.  Finally, I will describe efforts BPS is making to develop an intentional approach to assist youth more generally.

Background

As the District Coordinator for System-Involved Youth at BPS, I have been pioneering new ground for academic and social integration for youth who have been exposed to systems including, but not limited to, the Department of Youth Services (DYS) and the Department of Children and Families. Through strategic transdisciplinary partnerships, I am ensuring that BPS is holding the fidelity of its mission to provide access to equitable educational opportunities to EVERY student. Concomitantly, I am working tirelessly to dismantle the cradle-to-prison pipeline while creating a path from prison-to-school. Ultimately, my objective is to disrupt the generational cycle of America’s mass incarceration crisis on Boston’s youth, and the debilitating effects of trauma on underrepresented communities. Prior to my work at the District, I devised Street Trauma, a transformative curriculum that empowered my former students at East Boston High to speak as experts of their lived experiences and enjoined educators to be more intentional about how they interacted with Black and Brown youth. Though I am no longer in the classroom, I have expanded my curriculum to colleges/universities where I serve as an adjunct professor to reach individuals seeking to work in urban settings.

BPS Office of Social Emotional Learning and Transition H.O.P.E

Transitioning back to BPS from the DYS is a nonlinear reorientation process that requires youth to sever ties with their former ways of life, both good and bad aspects, to embrace the new. Change is inevitable and a part of life, but the transition process for system-involved youth is complex and strenuous. Furthermore, the majority of the youth detained at DYS by the courts have experienced some amount of school failure and are often already behind in their educational attainment. Therefore, even short periods of detention may result in further isolation from their school communities and exacerbate opportunity gaps.

Determined to disrupt the odds stacked against the youth, I launched Transition H.O.P.E. in Summer 2018, a pilot program through BPS Office of Social Emotional Learning & Wellness with a holistic framework designed to ensure all system-involved youth have access to educational equity by: holding High Expectations for each and every young person; providing Opportunities that are realistic and within their perspective; helping the youth envision Pathways to Success by taking ownership of decisions for desired long-term outcomes; and providing Encouragement to help youth acknowledge that success is theirs to claim and define irrespective of the past. The pilot was launched at the DYS Metro Pre-Trial Detention unit with a total of 16 youth. After a successful summer, we plan on expanding Transition H.O.P.E. in the Fall of 2018 to additional DYS units and facilities serving youth assigned to BPS.

Transition H.O.P.E., powered by strategic partnerships with Lesley University, engages youth in college-level academic discourse and exposes them to pathways beyond high school.  Lesley tutors worked diligently with youth to build higher order thinking skills and foster the ability to see beyond the limitations placed upon them. As a result, two of our youth enrolled at Benjamin Franklin Institute of Technology (BFIT) upon release and are exploring career options that they would otherwise not have imagined they could attain. Moreover, going on our mantra, “When you engage a youth, you reach the family,” one of the youth’s brother also enrolled at BFIT this summer and they are now attending classes together while serving as a strong support system for each other.

BPS is intentional about cultivating a culture of accountability to the success of these youth and pursuing transformational leadership to unearth the passion, purpose, and potential buried within all youth. It is also essential that the transitional process consists of positive affirmations and the presence of consistent adults in their lives. With the support and guidance of mentors (including former professional basketball players, Becoming a Man, Mass Mentors), youth are devising roadmaps to success in the academy and beyond.  The H.O.P.E. team stresses accountability through periodic check-ins with both the youth and their mentors.  As Frederick Douglass asserted, “It is easier to build strong children than to repair broken men.” Thus, BPS is intentional about integrating the following frameworks in its approach:

  1. Holistic Development: Employ a whole-child framework to cultivate cognitive, cultural, emotional, physical, social, and spiritual development.
  2. Open-minded Attitude: Employ a growth-mindset framework to teach our youth that their attitude, not aptitude, determines their altitude.
  3. Purpose Cultivation: Employ a visualization framework to activate the subconscious mind to create new neural pathways for the manifestation of desired aspirations.
  4. Engaged Citizenship: Employ a civic engagement and transformational leadership framework to build capacity for individual and collective responsibility.

The incorporation of youth voice is essential to each of these integrated components. BPS district leaders made several visits to DYS over the past year to listen to the needs of the youth and wrestle with tough questions like “How can teachers be better equipped to engage with youth who are subject to complex trauma?” It is impossible to narrow the opportunity gap and dismantle the prison pipeline without giving youth platforms to be heard.

The partners who are working with our inner-city youth are recognizing the harm caused by the school-to-prison pipeline, including collateral consequences in employment, education, housing, and beyond upon involvement in the justice system.  Research has shown that concepts such as “trauma-informed learning” and “social emotional learning” have gained significant traction over the past few years as alternatives to exclusionary discipline practices.  These constructs posit that the microsystems youth inhabit, like their communities, homes, and schools are critical to addressing their needs. At the recent Coalition for Juvenile Justice Youth Summit, youth from across eighteen states described their school experiences as “inhumane” and their communities as “unsafe” due to the high concentration of poverty and crime that stems from systemic inequality and policies from the “War on Drugs.”

Recognizing that isolation is the enemy of transformative progress, BPS is extending an invitation through Transition H.O.P.E., to partner with us and alongside Mass Mentors, William James College, Benjamin Franklin Institute of Technology, Timothy Smith Network, the Juvenile Detention Alternative Initiative, Northeastern Center for the Study of Sport and Society, Harvard University Transformative Justice Series (located in the Charles Hamilton Houston Institute for Race and Justice), Brandeis University, Suffolk County Sheriff Department Family Matters Program, Boston Police Department, STAR and most certainly Lesley University. If you have any interest in aligning work, please feel free to email me at jridley@bostonpublicschools.org.


Successful Alternatives: Juvenile Diversion and Restorative Justice in Suffolk County

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by Former Suffolk County District Attorney Daniel F. Conley, Assistant District Attorney Michael V. Glennon and Erin Freeborn, Executive Director of Communities for Restorative Justice

Heads Up

Since 2017 prosecutors in Suffolk County have made efforts to improve and modernize their approach to juvenile justice. These efforts include an ambitious juvenile diversion program and, more recently, a restorative justice initiative, in partnership with Communities for Restorative Justice to give victims of crime an opportunity to address the people who have harmed them. The diversion program seeks to identify the needs and risk factors that pre-date offense and arrest, and to address them outside the traditional juvenile justice system. The restorative justice initiative is a voluntary process by which offenders, victims, and members of the community come together to collectively identify and address the harms, needs, and obligations created by, and identified as a result of, a criminal act. The combined result is a model that may prove valuable for other prosecutors’ offices nationwide.

Most juveniles who enter the justice system have a complex set of needs and risk factors that pre-date offense and arrest. Research shows that identifying and addressing these makes for effective rehabilitation efforts. For too many young people, however, the opportunities for this type of assessment are frequently missed until their conduct brings them into contact with the juvenile justice system, and is often delayed until after a juvenile has been charged, prosecuted, and adjudicated delinquent. In a busy, urban court system, where most juveniles are released to their parents, this process can take months or years – during which time those needs and risks may remain unaddressed.

Prosecutor-led diversion efforts, such as the Juvenile Alternative Resolution Program (“JAR”), can fill this gap meaningfully and effectively. Overseen through the DA’s Juvenile Unit, the Suffolk County JAR program seeks to support juveniles with a moderate or high risk assessment, while low-risk juveniles (those charged with first- or second-time misdemeanor offenses) are usually diverted informally with minimal supervision. Only the most serious offenses – sex offenses, gun crimes, and crimes causing serious injury to a victim – are automatically ineligible for diversion. Since the JAR program launched last year, it has accepted 70 juveniles charged with more than 100 separate offenses. Only three participants – less than 5% – have been removed from the program for violating the terms of participation. Thirty have successfully completed the program and the remaining 40 are on track to do so. Since the pilot phase ended, JAR has expanded to include more neighborhoods in Boston and is expected to nearly double in capacity, taking in close to 100 juveniles during the second year. Overall, about 65% of Suffolk County delinquency proceedings, or over 500 cases, are diverted informally or formally through JAR – 10 times more than are subject to youthful offender indictments

This success is particularly notable because the JAR program accepts juveniles who present with higher risk factors, which is possible because candidates complete a two-stage screening process to determine the level and nature of services appropriate to their circumstances. Courtroom prosecutors first assess the juvenile using the Ohio Youth Assessment System – Diversion (OYAS-DIV) tool to determine risk level and help the prosecutor determine whether informal diversion, formal diversion through JAR, or traditional juvenile proceedings are appropriate. For JAR-eligible candidates, the DA’s diversion coordinator meets with the juvenile and guardian separately to perform a more extensive assessment interview, including completion of the Youth Level of Services/Case Management Inventory (YLS/CMI) 2.0 assessment, which determines the juvenile’s criminogenic needs and strengths. Specific risk factors and needs that lead to criminal behavior are identified and categorized. Once the areas of highest risk are identified, the juvenile immediately enters programming tailored to their needs in order to mitigate them and lower the likelihood that they will re-offend. This has resulted in successes like “John,” who entered the juvenile court essentially homeless after being charged with Receiving Stolen Property and Breaking and Entering. John was assigned to work with the Detention Diversion Advocacy Program (DDAP) where he received resources, including a mentor, therapist, and support leading to summer employment. He successfully completed JAR, received no criminal record, is doing well in school and has not recidivated.

Chronically underfunded district attorney’s offices in Massachusetts do not have the financial resources, staff, or training to provide rehabilitation services. As a result, Suffolk prosecutors have built strong partnerships with community-based agencies who carry out the programing recommended through the screening process. Candid and collaborative alliances with non-profits, social service providers, and other agencies working directly with youth, families, and communities are essential in this regard. The majority of diverted juveniles complete three to nine months of individualized programming through the partner agencies, including therapy, job preparation and placement, educational support, mentorship, life skills training, substance abuse counseling, and more. To ensure honest participation at each stage, the juvenile is protected with a contract ensuring that nothing they disclose will be used to prosecute the underlying case.

Targeting the risk factors that have the greatest likelihood for recidivism advances the interests of public safety, offender accountability, rehabilitation, and satisfaction for both the victim and the community, all while reducing future barriers to success. Speed is important to the program’s success, both in the rapid assessment of the juvenile’s risk factors and needs and in following through with the recommendations as quickly as possible.

Because prosecutors direct most JAR participants into diversion prior to arraignment, the underlying charges do not appear on the juvenile’s criminal record – a decision that prosecutors made for its significant long-term implications. Having a criminal record can complicate important, stabilizing life choices such as pursuing higher education, seeking stable employment, and applying for a loan. Despite these considerations, creation of a criminal record may be necessary given the seriousness of the offense and the risk the offender poses to their community. By reducing the number of juveniles who enter adulthood with a record, prosecutors are confident that they can balance public safety with the enduring public benefit of emphasizing diversion over traditional juvenile prosecution.

In addition to the more traditional diversion programs described above, a JAR assessment may recommend the use of restorative justice circles as a key process to give victims, communities, and the juvenile a voice, while also addressing any threats to public safety. Through this process, the offender accepts responsibility for their actions and takes steps to repair the harm they have caused to a victim and the community. A highly trained volunteer facilitates the meeting process over a period of months. The process is tailored to each participant and may involve regular group meetings, known as circles. Circles may involve the victim, other community participants, law enforcement officials, and the offender. Undertaken appropriately, restorative justice leads to long-term healing for the offender and the community while lowering the likelihood of recidivism.

Communities for Restorative Justice (C4RJ) promotes and facilitates these circles to give victims of crime an opportunity, in a safe environment, to address the people who have harmed them and determine how the harm may be repaired. The offender is held meaningfully accountable, comes to understand the impact of their actions, and makes amends to those affected by the underlying offense.

C4RJ’s restorative circles already operate in numerous jurisdictions. They have a recidivism rate of just 16% and a 98% participation satisfaction rate last year as measured by offenders and victims. Restorative justice works because the offender learns empathy and gains stronger connections to the people affected by their actions, while the victim and community become more engaged in the process and outcome.

The restorative justice collaboration among stakeholders inside and outside the criminal justice system has produced an outstanding result: reliable, validated assessment data matched with specific, individualized programming to place the right juveniles in the right programs to address their unique needs and cut short the cycle of recidivism.

The spread of C4RJ’s effective programming and the proven successes of the Suffolk County District Attorney’s JAR program should encourage all justice partners to look at evidence-based alternatives to “business as usual.” Those engaging in restorative work across the Commonwealth should consider partnerships with their local criminal justice professionals, many of whom have proven themselves to be open and enthusiastic supporters of new and innovative ideas. The pieces are all on the board – together, we can keep moving them forward.

Getting Involved

The Suffolk County District Attorney’s office is eager to partner with qualified individuals and agencies to improve diversionary outcomes. By enhancing the restorative justice component in an already effective diversion model, prosecutors believe they can achieve short-term benefits for individuals and long-term benefits to the community. Interested candidates for JAR partnerships should contact Juvenile Unit Deputy Chief Michael V. Glennon at Michael.V.Glennon@MassMail.State.MA.US.

Communities for Restorative Justice needs community volunteers who are interested in doing this work in Suffolk County. If you would like to help make a difference in your community, you can learn more at http://www.C4RJ.org or fill out a volunteer application at https://bit.ly/2ya8z5K.