Durham’s Misdemeanor Diversion Program

Justice System Reform

Jasmine, 16, stood behind the defense table in Criminal Courtroom 4-D. She was in line with two dozen “real” adults in their 20’s, 30’s, and 40’s who faced charges of robbery, selling drugs, home invasions, etc. As the presiding judge, I was conducting the first appearances to make sure each person understood his/her charges.

When I read Jasmine’s criminal citation of littering, which stated that she “willfully, wantonly did throw, litter on property not owned by the defendant to wit: a green plastic bottle on the American Tobacco Trial, G.S. 14-399,” she laughed and said it was “stupid.”

Even though Jasmine thought the charge was “stupid,” she had no idea of the dire consequences of that citation. Before she set foot in the courtroom, the damage of the criminal process had been done. Her name was already entered into the Adult Criminal Information System, a public record. Her future employment prospects, educational financial assistance, and housing opportunities all would be adversely affected. And although she qualified for a “first offender” program, with 50 hours of community service and payment of court costs and fees of $440 (how does a 16-year-old come up with the money?), the criminal charge was not erased by the prosecutor’s dismissal.

At age 16, her arrest will have irreversible consequences.

Last year in Durham. more than 550 16- and 17-year-olds were smacked with their first criminal citations or arrests for minor, misdemeanor offenses like shoplifting, disorderly conduct, underage drinking, marijuana, and trespass. Most of the youth charged were, like Jasmine, diverted from prosecution and offered a dismissal if they completed programs like Teen Court, community service, or mediation. While successful participation in these programs helps a young person avoid a conviction, the arrest or citation remains an indelible mark.

North Carolina is the only state in the country that considers 16-year-old minors to be “adults” in the criminal justice system in every instance. New York, where 16-year-olds are also considered adults, utilizes a “reverse waiver” provision through which 16- and 17-year-olds can be sent from the adult to the juvenile system in certain circumstances.

This low age of jurisdiction exists despite the fact that youth under age 18 cannot vote, legally drink, enlist in the military, or even get a library card without a parent’s signature.  We defy the logic that 49 other states understand: that teenagers do dumb things. They are immature. They act impulsively. They need to be taught consequences for the errors of youth and learn responsibility, but they need to do so in a system that recognizes their immaturity and focuses on rehabilitation. That is why we have a system of juvenile courts.

The debate over raising the age of juvenile jurisdiction in North Carolina has been going on for years. Opponents claim that crime is crime regardless of age, or they obfuscate the issue focusing on the relatively low number of serious felonies committed by youth under 18. In the meantime, tens of thousands of young Tar Heels are tattooed with criminal records for minor offenses.

In Durham, we are determined to stop this trend.

Durham leaders have taken a bold step to stop the first arrest and citations of 16- and 17-year-olds for minor offenses. With the agreement and participation of the Police Chief, Sheriff, District Attorney, and Chief District Court Judge (me), a new “Misdemeanor Diversion Program” (MDP) has been created.

All law enforcement will be instructed to refer first time misdemeanor offenders aged 16 and 17 to a community-based program. Traffic cases, sex offenses, and firearm charges will not be eligible. A coordinator will review incident reports, meet with the teenagers, and refer them to appropriate community-based services. The teenagers will also be required to attend one court session, where a judge (me) will explain the consequences of criminal arrests and records.

If the juvenile completes the 90-day program, law enforcement will be notified that the diversion was successful. No further action will be taken. The teenagers who do not participate and complete the program will be referred to law enforcement officers, who will maintain their discretion to file charges.

We have worked hard to ensure that the MDP is used only in cases in which law enforcement would otherwise arrest or issue a criminal citation. In other words, we don’t want the program to “widen the net” by bringing into the court system minor offenders who would never be criminally charged. Officers have been instructed to refer youth to the program only where probable cause exists to charge. Its purpose is to teach youth about consequences of their actions and enable them to enter adulthood without a criminal record.

This program has gotten off the ground because of the cooperation of law enforcement and District Attorney’s office. Durham County government, through the Criminal Justice Resource Center, has provided funding for the coordinator. We will monitor compliance and law enforcement arrest data. While this is not the answer to raising the age of juvenile jurisdiction in North Carolina, it is a community response to help kids like Jasmine have a better future.

Marcia Morey is the Chief District Court Judge of the 14th Judicial District and a board member of Youth Justice North Carolina.