Restorative Justice, Part 1: Juvenile court diversion is cheap and effective, but inconsistent across N.H.


Granite State News Collaborative

Published: 04-16-2021 1:19 PM

Only a few months away from graduating from Spaulding High School, Dillon Guyer made a seemingly small decision that would change his life. He remembers his 17-year-old self as a typical rambunctious teenager who skipped a few classes a day to smoke weed with his friends behind the school. Something anyone at that age may have done.

This time, they got caught.

But instead of calling the cops or taking him to the police department, the school’s resource officer brought Guyer to a school administrator, who recommended a different option.

“She looked me in the face and told me, ‘Dillon, I know you’re high. I know you’re being an idiot. But if you want to graduate you have to go to diversion,” Guyer remembers.

Guyer was sent to Rochester’s juvenile court diversion program based out of the police department, a community-based alternative to traditionally charging a juvenile with a crime. There are a total of 17 juvenile diversion programs across the state. They often use restorative justice principles in their processes: victim-centered approaches focusing on repairing the harm caused by crime, holding offenders accountable for their actions and focusing on community repair.

There are a few different ways juveniles can be diverted in New Hampshire: directly by a police officer, following a court hearing, or through a school as a pending charge, as was Guyer’s case. His is a good example of how a typical diversion process plays out for a low-level offense.

“You go in, represent your case in front of a jury of your peers, you tell them what you believe happened, your specific details, and then they cross reference everything with the school report, or if there’s a police report,” he said.

And here’s the most important part: diversion may be offered to offenders, but they must be willing to complete a program that can stretch from three to 18 months depending on the crime. Generally, under the existing system, felony level cases such as drug violations or sexual assault, aren’t appropriate for diversion, according to Nicole Rodler, chairperson of the New Hampshire Juvenile Court Diversion Network.

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“We’re undergoing a massive transformation in the juvenile justice system around how cases are being referred to diversion and other resources that are needed. So, a felony level case for a first-time offender in the new system might be referred for diversion but in the current system the charges will often be plead down and then they will go to diversion.”

Juvenile delinquency cases involving first time offenses that are misdemeanors are the most common diversion cases, according to Rodler.

“Some programs will take cases that are violation level offenses but that’s not considered a juvenile court diversion because it’s a violation level offense and not a delinquency,” Rodler said. “Quite often programs will do prevention work around violation level cases which include runaways, truancy, tobacco.”

Juvenile delinquency cases range from willful concealment, simple assault, criminal misconduct and other cases that fall into the delinquency realm.

Interestingly, alcohol violations are not considered juvenile delinquincy cases, Rodler said, because they fall under motor vehicle statutes.

While determining whether a particular crime is appropriate for diversion is one of the first steps, the offender must also admit their guilt to be accepted into a diversion program.

“You do have to admit that you’ve done something wrong. And you do have to admit to them that you’re willing to change,” Guyer said.

Next, the jury, panel, or a case manager will work with the offender on an individualized case plan that might include community service, writing letters of apology to parents or victims of the crime, a mediation session with the victim, education, job training or mental health and addiction services.

If an offender successfully completes the program, the charge is dropped and the offender’s record is wiped clean.

The idea is to address the root causes of crime within an individual rather than responding with punishment. And as protests calling for an end to police violence, police and prison reform and abolition have continued since the start of last summer, more activists have begun calling for restorative justice as a solution to the country’s mass incarceration problem.

It is especially important for juveniles to be given a second chance at a life outside the justice system, says Nicole Rodler, chairperson of the New Hampshire Juvenile Court Diversion Network.

“Youth data and statistics show that most youth age out of delinquency. So you want to give them an opportunity to learn from their mistakes,” Rodler said. “A teenager, they’re not even playing with a full deck of cards. They’re just making decisions based on impulse control and giving them the opportunity to learn from their mistakes is huge.”

So was the case with Guyer. He grew up in a troubled household, he says, with parents who divorced when he was young, and four siblings with developmental disabilities. While his siblings were getting attention, he says he was often put on the backburner. To cope, he turned to marijuana and alcohol at an early age.

According to Rodler, most juvenile crime comes from other existing issues like mental illness, substance use, trauma, an unstable home environment or adverse childhood experiences (ACEs).

Data from 2019 intake exams given to 142 minors who went through one of the network’s diversion programs in New Hampshire showed that 40.8 percent had experienced mental health symptoms in the two weeks before starting diversion, and 71.4 percent indicated they had used at least one substance in the previous year.

“Our youth in our state are struggling with ACEs and mental health and we know that nationally mental health services are lacking. We don’t have enough services to cover the need that is here, and New Hampshire is not alone in that struggle,” Rodler said.

A long history of diversion

While the popularity of diversion and restorative justice programs are growing across the country and have historically been used in communities across the globe, including within indigenous tribes and religious cultures, many states still use punitive approaches to juvenile justice. But that is slowly changing.

On a typical day in 2019, some 48,000 juveniles in the United States were confined in facilities away from home, such as detention centers or group homes, as a result of their involvement in the criminal justice system. But youth confinement has fallen by 60 percent nationally since 2000, a trend that is expected to continue, according to the Prison Policy Initiative.

New Hampshire is tied for the third lowest youth incarceration rate in the country according to the ACLU, at 75 per 100,000, just behind Connecticut and neighboring Vermont.

That might have to do with New Hampshire’s long history with court diversion. Between 1969 and 1979, juvenile delinquency cases in the state had increased by 160 percent, with 38 percent of total statewide arrests in 1979 being juvenile, according to a 1981 handbook on diversion. That year, major changes were made to the juvenile code, including the addition of RSA 169-B:10, which established referral to a court-approved diversion program as an alternative to a traditional court sentence or charge.

By 1981, two years after the statute was enacted, 29 diversion programs were in operation across New Hampshire, eventually growing to 35 at the peak, with various funding sources coming and going over time. By 2011, a new clause was added to the statute, establishing that diversion should happen pre-court.

According to Rodler, New Hampshire is the only state in the nation with pre-court diversion written into statute. But not all police departments are following the statute to a Tee. Some juveniles receive a court hearing before being diverted. Others are either not offered diversion for a number of reasons, or choose to accept a traditional charge to avoid commitment to a months-long program they may not be able to easily access. And some areas like Coös county didn’t even have access to juvenile diversion until July.

“It’s a problem,” Rodler says, “but as long as departments make efforts to divert a child, they are operating within statute. If there’s not a program available they can use community resources. They send them to probation. It is legal within the statute because the attempt was made.”

“The ideal is that it’s not ever going to see a judge,” she added. “So that means that a police department is the gatekeeper of that charge. When a youth…has a charge over their head, that police department would make a referral into a program, and that’s when that case should go forward to a program directly, not a court.”

Others within the network have had similar issues with police. Lyndsay Porreca is the assistant director of Valley Court Diversion programs, which offers adult and juvenile services in portions of Sullivan and Grafton Counties as well as Windsor County, VT.

“Even with the juvenile statute, we’ve seen deliberate ignoring of what’s supposed to happen, and they’re not held accountable, and that’s part of our battle,” Porreca says. “I have seen it in the past that they just dismiss the fact that that’s not what they’re supposed to be doing.”

Success: Recidivism and Cost

Guyer is an example of one of the many juveniles New Hampshire’s court diversion network was able to help. Now 28 years old, he has remained arrest-free since the day he was found smoking marijuana behind Spaulding High School, aside from a minor speeding charge last year. Today, he proudly owns Guyer Travel, a travel agency based in Dover.

He says he finds joy in giving back to the community that invested in him, a troubled teenager with a lonely upbringing, 11 years ago. Recently, that meant filling backpacks with school supplies for local kids in need. It also has meant keeping in touch with Rodler, who worked closely with him when he went through the diversion program.

Guyer credits diversion with most of his accomplishments today. He found his first job at the local Girls, Inc., the organization with which he had to do 40 hours of community service in order to complete diversion. He regularly volunteered with the diversion network on peer juries and in schools for three and a half years after he finished his own process.

If it wasn’t for diversion, Guyer says, “I honestly do feel that I would have succumbed to a lot of the opioid problems that we’re seeing in this country. A couple of my family members have. A lot of my friends have. I’ve even lost some people. I lost someone who was there the day we got busted smoking pot.”

New Hampshire has results to show that these programs really do work: according to a recent statewide recidivism study of juveniles who completed diversion in 2015 or 2017, 79.8 percent of youth were arrest-free one year after completing a diversion program, and 57.8 percent remained arrest-free after three years. A juvenile’s likelihood of re-offending within one year of completing a diversion program is 20 percent lower than if they had gone through the traditional justice system.

By comparison, 51 percent of juveniles who served time in New Hampshire’s youth detention centers were later sentenced to adult probation or prison, according to a study by the Annie E. Casey Foundation. But since each state tracks recidivism differently, it is nearly impossible to compare New Hampshire’s with surrounding states’ rates.

“It’s very effective,” said Sen. Bob Giuda (R-Warren), who sponsored a bill to add $300,000 in state funds to diversion programs last year. The bill was tabled in the Senate, but $600,000 in grant funding through DCYF was added to the state budget for diversion in 2020 for the first time in almost a decade.

“The average cost of diversion versus going through the court system costs significantly less. That right there is a justification in terms of dollars and cents,” Giuda said.

In addition, diversion receives $310,000 each year through the governor’s commission on alcohol and drugs. Those monies, however, only fund drug and alcohol related programs and some administrative costs.

According to the state diversion network, member programs serve an average of 580 individuals per year on a budget of less than $1 million. By contrast, the Sununu Youth Services Center, New Hampshire’s only juvenile detention center, currently houses only 14 juveniles and received $12.7 million in state funds for the 2020 fiscal year. The state allocates $11.5 million to the Juvenile Justice Service, which provides supervision and rehabilitative services to youth in the justice system and serves about 2,000 annually.

The state has taken note of the Sununu facility’s disproportionate spending. New Hampshire’s Office of Legislative Budget Assistant (LBA) audit division was ordered to do a performance audit of the center last June to examine the effectiveness of its services in comparison to the costs to maintain it. Public results are not available yet, but according to LBA Audit Supervisor Jay Henry, a performance review is expected by early spring.

Still, the funding that is available to diversion programs within the network is not enough. A lot of money used to come from hundreds of thousands made available annually in incentive funds which are used to promote the growth and development of juveniles and to prevent out-of-home placement. Those funds dried up in 2012, leading to the closure of many programs across the state: in 1981, 29 youth diversion centers were active and received incentive funding as opposed to today’s 17.

“This conversation has been had 100 times over. For a long time they’ve been talking about how to fund this and how to do this,” said Rodler. “They run on absolute bare one point we had 33-35 programs across our state that closed their doors after incentive funding dried up.”

Each program today charges participation fees, applies individually for additional grant funding or holds fundraisers to keep them above water. And participation fees can be a barrier to some families, forcing them to make a choice between a mark on a child’s record and a fee they can’t afford for a program they may not be able to get to.

“Some clients do not have reliable transportation, they don’t have reliable phone service. Others cannot afford the fees associated with the program,” said Tracy Scavarelli, director of legal services at the New Hampshire Public Defender.

“I do know that funding has been an excuse in the past as to why [the state] would not implement these alternative programs, despite the data that shows that having these systems would decrease overall spending,” she added.

Sending a child through typical state family court proceedings is 18 times as costly as sending them through diversion, according to 2019 research provided by the Juvenile Court Diversion Network. A court process, for longer and more complicated cases, can cost up to $43,000, while diversion costs as little as $2,400. Some practitioners say diversion for low-level cases is essentially free.

Addressing an imperfect system

Although Rodler says every town, city and jurisdiction in New Hampshire has access to juvenile court diversion, Moira O’Neill, director of the New Hampshire Office of the Child Advocate, says accessibility is an issue, and that’s a major problem when it comes to equitable access.

“In particular, there’s a lot of kids in the juvenile system who...they might get in trouble at school in one place and they get offered a diversion program, and then they move to another town and they don’t, because it’s just not there,” O’Neill said.

“Our biggest concern is that not all children are treated the same throughout the state,” Scavarelli said. “Some will have the opportunity to participate in a diversion program whereby they avoid the juvenile criminal justice system, whereas others will have to go through the system because they have no other option available to them.”

It’s something Rodler, O’Neill and other juvenile justice advocates across the state are trying to change by working with the Annie E. Casey Foundation’s probation transformation program, at Georgetown University, which was created to help states build systems that will keep youth from entering the criminal justice system. For New Hampshire, that means taking a second look at youth diversion and making the process more uniform.

Aside from Giuda’s bill, the legislature hasn’t paid much attention to expanding accessibility by creating statewide programs or providing more funding to support existing ones. O’Neill says there are no major leaders in New Hampshire to make sure that happens.

“I don’t think that anybody thinks about [these children] because they’re not on anybody’s radar. I don’t think people sometimes even think about them as human,” she said.

Rep. Gerri Cannon (D-Somersworth) is hoping to change that by working with the network on legislation that will improve the existing juvenile diversion statute. Historical documents show that inconsistencies have existed in juvenile delinquency statutes since they were established in 1979.

A diversion handbook published by the U.S. Department of Justice in 1981 explains that “considerable confusion exists about the implications of the various types of organizations. New Hampshire RSA 169-B:10, 13 permits the referral of youngsters to ‘court approved diversion programs,’ but does not offer any guidelines for these programs. This is left to discretion of local communities.”

“Right now it’s inconsistent and the statutes are sort of left to interpretation. And that’s what we have to do, is come up with ways to standardize it,” Cannon said. “Part of it is to get the training program standardized. Once they arrest a juvenile in the situation, it’s how to process them and how to work with the juvenile.”

Recently, a constituent came to Cannon with concerns for her son, who had been arrested numerous times for driving under the influence, an offense not accepted by some diversion programs. Cannon thinks perhaps he could have been helped out of a recidivistic cycle if he had access to diversion.

She sponsored a bill in 2020 that would mandate the referral of minors convicted of alcohol and drug related offenses to diversion, but it died in the house due to other legislation prioritized because of the coronavirus pandemic. She expects to continue work on juvenile diversion during the 2021 legislative session.

“Most of [New Hampshire’s] diversion work looks like it’s handled through the police department and it’s not currently covering the entire state,” said Jacquita Monroe, a senior associate at the Annie E. Casey Foundation. “How can they cover more young people and hopefully kind of home in using race and ethnicity so that all young people have a way to diversion?”

The racial disparity of juvenile commitment in New Hampshire is one of the highest in the United States, a study from the Sentencing Project in 2013 found. In that year, Black children were more than 10 times as likely to be committed to secure facilities than white children, more than double the national disparity. Hispanic children were five times as likely to be committed in New Hampshire than white children.

“When I walk into the Sununu center, most of them are brown faces. When I go to the residential facilities, I see a lot of brown faces,” O’Neill says. “And that comes down to what we know about perception. We think of African American kids as older than they actually are.”

According to Monroe, race is a factor nationally when it comes to diverting youth, which can be partially explained by the way diversion in New Hampshire, and in other states, is done. If an individual officer or prosecutor has the power to make the call on who is eligible, implicit bias could have an impact, she says. Ideally, youth would have no contact on any level of the justice system in order to access restorative justice services.

“We would like to see something that’s community led, that’s not really dependent on the system...You want to get them as far away from the system as possible,” Monroe said.

For Guyer, it’s been nearly a decade since since he successfully completed the program.

Today he praises the effectiveness of diversion programs and credits the personal connections they establish between law enforcement, program directors and one’s peers.

“It’s more than just walking into a courtroom. We try to remove all aspects of that. It really is walking in, talking to people that you may even know from school,” Guyer says. “So you’re really just talking to your friends, talking to your peers and it removes all the intimidation. For me it made it an easier process, it made it personable.”

Guyer emphasized the importance of people like Rodler who understand the needs of kids in the program.

“Nicole makes it a program where she understands these kids are coming from rough households—some of them aren’t —but she knows about these kids coming from that stereotypical lifestyle and she has a way to talk to them and work with them,” he says. “I wanted to listen to her. I wanted to show her the success that she wanted me to have.”


Editor’s Note Box: The stories in this series were produced by The Granite State News Collaborative with its partners at NH Bar News and The Monadnock Ledger-Transcript. The editing team included Scott Merrill, Editor, NH Bar News; and Ben Conant, Editor, Monadnock Ledger-Transcript.

The reporting and research team included: John M. Bassett, Jordyn Haime, Kathie Ragsdale, Fiona St. Pierre, and Adam Urquhart.

The series was supported by a competitive grant from the nonpartisan Solutions Journalism Network. The Collaborative and its partners retain editorial control.