• Introduction
• 1. What is the criminal justice system?
• 2. What is the purpose of the criminal justice system?
• 3. How do diversion and alternatives help contribute towards the aims of the criminal justice system?
• 4. What evidence is there that diversion and alternatives reduce recidivism compared to detention?
• Summary

Introduction

Sections A and B of this toolkit on why diversion and alternatives are so important have outlined reasons relating to the ‘child’ (child rights and the international legal framework, and child development and psychology). Section C examines reasons relating to ‘society’, starting with why diversion and alternatives can be more beneficial for public safety and reduced recidivism rates compared to detention of children in conflict with the law. According to the Tokyo Rules (United Nations Standard Minimum Rules for Non-custodial Measures), “When implementing the Rules, Member States shall endeavour to ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention” (Rule 1.4). With this in mind, Section C1 (public safety and recidivism) examines the overall purpose of criminal justice systems in relation to public safety and how diversion and alternatives help to contribute towards this. It compiles evidence from a wide range of studies and evaluations of diversion and alternatives programmes which show to what extent they are more likely to impact positively on reducing rates of re-offending (recidivism). The 'rights of victims' are dealt with in Section C2.

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1. What is the criminal justice system?

The term ‘criminal justice system’ is used to describe laws, procedures, professionals, authorities and institutions that apply to witnesses and victims/survivors, and to those alleged as, accused of, or recognized as having committed a criminal offence[1], whether adults or children. The criminal justice system can range from the first contact with the police to release from custody after serving a prison or custodial sentence. Even after release from a prison or custodial sentence there may be a period of probation or supervision during which the person is still part of the criminal justice system. International human rights law requires states to develop a separate criminal justice system for children (those under 18 years of age). This is known as the justice system for children in conflict with the law (or juvenile justice system).

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2. What is the purpose of the criminal justice system?[2]

Although the criminal justice system is determined largely by a country's socio-political and cultural context, in general its purpose is to:   

• Set and maintain standards of behaviour that are acceptable in the community;
• Allow for a peaceful or law-abiding society;
• Prevent crime;
• Protect society from harm, especially society’s most vulnerable members;
• Uphold / enforce the law;
• Have an authority (police or prosecutors) to investigate crimes/offences;
• Deal with those who commit or are accused of committing acts against individuals and society that have been deemed to be crimes;
• Have legally established courts to hear evidence against accused persons and to impose a sentence / disposition as prescribed by law;
• Provide the accused person the opportunity to be legally represented; to be heard by an independent and impartial person or persons; to challenge the witness/evidence presented against them; to appeal against any finding.

The purpose of the criminal justice system should therefore not be just to arrest, prosecute and punish criminals. The system as a whole should have a greater purpose – to prevent crime and to create a peaceful, law-abiding society.

Actors in the criminal justice system need to balance short term actions with the effect they have on this greater goal in the longer term: “The Committee wishes to emphasize that the reaction to an offence should always be in proportion not only to the circumstances and the gravity of the offence, but also to the age, lesser culpability, circumstances and needs of the child, as well as to the various and particularly long‑term needs of the society. A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in article 40 (1) of CRC […]. In cases of severe offences by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need of public safety and sanctions. In the case of children, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration.” [3]

For example, arresting and imprisoning a child for stealing food does not address why s/he stole the food in the first place (because they were hungry) and nor does it prevent him/her from stealing again in the future. In fact it may be more likely that s/he commits a more serious crime in the future which they have learned through negative peer influence in detention. Public safety is therefore being harmed in the longer term. A system that implements international standards which embody prevention, diversion and alternatives to detention over deterrent and punishment is more likely to reduce offending and re-offending and therefore contribute to public safety. This is particularly true when interventions on prevention, diversion and alternatives address the root causes of the offending behaviour, for example through social welfare and family support. Interventions may adopt a restorative justice approach where this is possible and appropriate.

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3. How do diversion and alternatives help contribute towards the aims of the criminal justice system?

Regulating behaviour in order to prevent crime and re-offending is a key aim of the criminal justice system. It is therefore very important that justice responses to children in conflict with the law contribute positively, rather than negatively, to children's development and behaviour. As seen in Section B, diversion and alternatives help to fulfil this function by protecting children from the negative consequences of contact with the justice system and detention, and by opening up possibilities for positive development through individually tailored, child rights-based and community-based programmes. Furthermore, as clarified in the toolkit section on ‘what are diversion and alternatives?’, diversion and alternatives are highly compatible with a restorative justice approach which has the following benefits in relation to public safety:

• It can help to address the root causes of offending behaviour;
• It helps the offender understand the consequences of his/her behaviour and the impact this has on others;
• It makes the offender responsible for reparation of the harm caused by the offence;
• It gives the offender an opportunity to prove his/her positive capacity and qualities;
• It tackles guilt feelings in a positive way rather than spiralling into further negative behaviour;
• It involves others who have a role in conflict resolution including victims/survivors, parents, extended family members, schools and peers and explores the obligations of those who are duty-bearers to fulfil the rights of the child in conflict with the law (violations of which may have led to the commission of the offence in the first place).

All of these in turn can lead to: greater victim/survivor satisfaction with the process; more effective community reintegration of the offender; reduced recidivism; and improved public safety.

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4. What evidence is there that diversion and alternatives reduce recidivism compared to detention?

Reduced recidivism is one of the most powerful arguments that could potentially be cited in efforts to promote diversion and alternatives. Although some studies suffer from methodological weaknesses, there is nevertheless increasing evidence of the effectiveness of these initiatives in comparison with detention. According to UNODC, “If the primary objective [of detention] is to attempt to ensure that offenders desist from future crime, there is no evidence that imprisonment does that more effectively than community-based alternative punishments. On the contrary, studies on the comparative impact of different forms of punishment on recidivism suggest that imprisonment makes it hard for offenders to adjust to life on the outside after release and may contribute to their re-offending. Using imprisonment to incapacitate offenders works only to the extent that while they are serving their sentences, they are not re-offending in the community. However, the vast majority of prisoners will return to the community, many without the skills to reintegrate into society in a law-abiding manner. Offenders are incapacitated while serving their sentences, but on release are more likely to commit further crime than those who are not imprisoned as part of their sentence. Thus, relying on sentences of imprisonment to prevent criminal re-offending is not an effective strategy in the long term.” [4]

“There is hope - offending by young people can be reduced. They [reviews and meta-analyses] also agree that no single approach will do this (although there are some approaches that usually don’t work). What they indicate is that delivering the right kinds of interventions, to the right people, in the right way, will reduce offending anywhere from five to 50 percent.” [5] (The review compiled for this toolkit also cites examples of up to 70% reduction in recidivism although, again, care must be taken to allow for methodological weaknesses in some studies).

This statement is important in that it acknowledges the importance of the quality of interventions in reducing offending and re-offending. Poor quality, badly targeted initiatives implemented by inadequately trained and supported personnel will have only a limited impact (although many studies recognise that even this minimal impact is the same as, if not marginally better, than detention) and may result in 'widening the net' of behaviour which brings children into the justice system: “[One particular meta-analysis] reported that 87% of the studies they looked at found that re-offending was lower for the group that did the intervention than the group who did not. The average reduction in re-offending across all programmes was 15%, leading them to conclude that ‘any programme was more effective than no programme’ (Redondo et.al. 1997). They also found that ‘the younger the subjects, the more effective the programme’, with greater reductions in re-offending for adolescents and juveniles compared with mixed groups or adults only.”[6] This toolkit aims to promote good practice, and therefore maximise the impact that diversion and alternatives can have on re-offending, through the sharing of ideal principles and standards, practical tools and lessons learned.

A summary has been prepared for this toolkit compiling the results of 44 various studies, evaluations and meta-analyses which show reduced recidivism rates for diversion and alternatives programmes around the world.

Download ‘Compilation of evidence in relation to recidivism’

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Summary

The overall purpose of the criminal justice system - to prevent crime and create peaceful, law-abiding societies - is best served through restorative rather than retributive / punitive justice approaches. Diversion and alternatives which adopt a child rights-based approach and which capitalise on restorative justice approaches where possible and appropriate can lead to reduced recidivism and improved public safety. Evidence from a range of project reviews, evaluations and meta-analyses show that programmes can reduce offending by up to 70%, depending on the quality of the programme. Even poor quality programmes perform no worse than detention in terms of recidivism, and often better, although care must be taken to avoid 'net-widening'. However, the greatest gains are to be made with high quality, well-targeted, well-resourced and well-supported programmes which are child rights-based.

From a random selection of 44 studies, evaluations or meta-analyses of diversion and alternatives programmes:[7]

• 14/44 (31.8%) showed evidence of ‘significant’ reduced recidivism (e.g. a drop of 13-70% in recidivism or the intervention group re-offending 12-55% less than the control group);
  
• 10/44 (22.7%) showed evidence of ‘somewhat’ reduced recidivism (e.g. a drop of 7% in recidivism, the intervention group re-offending 9-11% less than the control group or a reduction in the seriousness of subsequent offences and/or the speed at which re-offending took place);
  
• 5/44 (11.4%) showed no evidence of reduced recidivism (although one of these showed a 20% reduction in recidivism for the adult version of the programme) and 1/44 (2.3%) cites programmes in general which do not have an effect in this area;
  
• 14/44 (31.8%) showed inconclusive or mixed findings (e.g. recidivism rates are given with no control group comparison; results are generally unclear or the study raises concerns about the rigour of the methodology; findings show a range of reduction in recidivism depending on either the quality of the programme (e.g. 0-40% reduction in one study) or the type of offence (e.g. 0-36% reduction in one study).

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Footnotes:
[All documents referenced here are available in the 'Resources' section of the toolkit]
1. Adapted from the definition of ‘adult criminal justice system’ in the UNODC/UNICEF Manual on the Measurement of Juvenile Justice Indicators, Appendix 1, pp.53-55.
2. Adapted from Police Training on Child Rights and Child Protection: Lessons Learned and Manual, Marie Wernham with Savina Geerinckx and Elanor Jackson, Consortium for Street Children, 2005, Section 3, ‘Policing in the overall context of juvenile justice’.
3. Committee on the Rights of the Child, General Comment 10, paragraph 71.
4. Handbook of basic principles and promising practices on Alternatives to Imprisonment, UNODC, p7.
5. Tough is not Enough - Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, Kaye L McLaren, Ministry of Youth Affairs, New Zealand, 2000, p.7.
6. Ibid., p.53.
7. It should be noted that studies use different definitions of ‘recidivism’ and sample sizes are often not comparable between studies.

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