Lawsuit says diversion program meant to keep troubled kids out of the criminal justice system violates their constitutional rights
In February 2018, the Val Verde Unified School District in California summoned a high school sophomore and her grandmother, Cindy McConnell, to a meeting to address the student’s attendance.
The student, identified in court papers as J.F., had continual problems getting to school by the 7:30 a.m. start time. A school board member, a Riverside County probation officer and other district officials were present; J.F. and her grandmother appeared without a lawyer.
At that gathering, J.F. says she was pressured into agreeing to a six-month term of “informal” probation through the county’s Youth Accountability Team program. The next day, she was given a probation contract with a slew of conditions. Among others, she had to agree to submit to drug testing, follow a curfew, perform 20 hours of community service, allow searches of her home or car, refrain from associating with anyone not approved by the program and tour a correctional facility.
She is now one of the plaintiffs in a class action lawsuit challenging Riverside County’s informal probation program.
“Many children have fallen prey and suffered the constitutional violations and abuse that prevails in Riverside County’s YAT program,” says a complaint brought by the American Civil Liberties Union, the National Center for Youth Law and the law firm Sheppard, Mullin, Richter & Hampton.
“Children are not informed of their rights, including the right to remain silent or to speak with a lawyer,” the complaint states. “Instead they are led to believe that if they do not agree to enter the YAT program, they may be referred to the district attorney’s office, even when they are not accused of a criminal offense.”
The lawsuit, filed last year and currently pending in federal court for the Central District of California, alleges that the Riverside County Probation Department violates youths’ due process rights, their Fourth Amendment right to be free from unlawful searches and seizures and their First Amendment right to associate with others. The ACLU argues that placement on “informal” probation leaves juveniles worse off than no intervention at all. One reason is that information gleaned through the program can be used against juveniles in future court cases; another is that children who participate in the program are presumed ineligible for diversion if they’re subsequently arrested.
“Rather than divert children, YAT draws more children into the criminal system,” the complaint reads.
Diversion programs generally aim to keep juveniles who have gotten in trouble out of court, especially when they’ve been accused of low-level offenses. These programs can address minors’ issues—whether it’s a need for counseling or help in school—without drawing them into the criminal or juvenile justice system.
Riverside County suggests its program will head off problems by working with troubled kids before their behavior escalates into crime.
Riverside’s Probation Department declined to comment, citing the pending litigation. But at a public meeting in January, the county described the initiative as voluntary. An official with the county’s Youth Accountability Team said the Probation Department planned activities for participants, including field trips to a football game, art projects and tours of Riverside Community College.
But advocates for juveniles say Riverside County’s initiative harms teens by subjecting them to a heavy-handed set of rules while failing to address participants’ underlying problems.
“There is a lot of evidence that for most kids who haven’t committed serious offenses, the less criminal-justice-type intervention we do, the better,” says Krista Larson, director of the Vera Institute of Justice’s Center on Youth Justice.
“I would like to keep the criminal justice system separate from the education and social welfare systems,” adds Victor Rios, a University of California at Santa Barbara, sociology professor and author of Punished: Policing the Lives of Black and Latino Boys.
He says the justice system doesn’t have the right tools to help kids who are lagging in school or acting out in ways that don’t amount to crimes. Instead, the system subjects youths to additional rules and surveillance—which can lead to more accusations and entanglements with the authorities.
The result, he says, is that children who are already having difficulties become more enmeshed with the court system. “It’s almost a self-fulfilling prophecy.”
From 2005 through 2016, about 13,000 children were placed in Riverside County’s informal probation program, according to the lawsuit. Many referrals came through schools—and often for activity that isn’t criminal.
The majority of recent referrals were for violations of the California Welfare & Institutions Code Section 601, which deals with status offenses—including habitually refusing “to obey the reasonable and proper orders or directions” of parents or a guardian.
The ACLU says that section of the law is unconstitutionally vague. What’s more, Riverside County courts don’t even hear cases where the only allegations are violations of Section 601, according to the lawsuit.
For the 2016-17 fiscal year, more than 58 percent of the 1,926 referrals to Riverside County’s YAT program were for “defiance/incorrigibility,” according to the county’s most recent report.
The complaint elaborates that reasons for referrals include bad grades, disrespect and using profanity. In J.F.’s case, officials suggested that she could be involuntarily transferred to another school if she didn’t agree to the program, and that her grandmother could face criminal charges, the complaint alleges. After she entered the program, officers made at least five unannounced visits to her home, according to the complaint.
In 1967, the U.S. Supreme Court ruled that children who have been arrested have the right to counsel during juvenile delinquency proceedings. But juveniles don’t usually have a right to a lawyer before they’ve been brought to court, even in situations where they’re being asked to waive their rights—though there are some exceptions. In California, for instance, a law provides that minors under age 16 must consult with a lawyer before police interrogations.
Still, some advocates not connected to the lawsuit say the complaint makes a compelling case that the program is unfair.
“To be fundamentally fair, children need access to lawyers to help them through this process,” says Tim Curry, legal director of the Washington, D.C.-based National Juvenile Defender Center.
“I think the ACLU is correct to be concerned about this program as being violative of the 14th Amendment—and as potentially encroaching on a child’s right to silence and right to privacy,” says juvenile justice expert Mae Quinn, a visiting professor at the University of Florida Levin College of Law.
The lawsuit also asserts that the Riverside County program is unconstitutional because it disproportionately affects black and Latino minors. According to the complaint, in the 2015-16 school year, black students were referred to the program at almost three times their rate of enrollment countywide; and Latino students accounted for more than 39 percent of referrals, but only comprised 32 percent of students.
Until last year, Los Angeles County also operated a “voluntary” probation program similar to the one in Riverside. But Los Angeles officials shut down the endeavor shortly after advocates released a critical report stating that the program “runs counter to research, and risks widening the net of youth involved in the justice system.”
The lawsuit against Riverside County officials could go to trial next year, unless the matter is resolved; the ACLU and the county are slated to attend a settlement conference in early July.
But the litigation already appears to be having an effect out of court. In October, the Coachella Valley school district voted to discontinue referring students to the Riverside County Probation Department.
“We want to avoid putting students in the criminal justice system,” school board member Silvia Paz told the Desert Sun. That sentiment appears to reflect a growing recognition that scared-straight type programs don’t help teens accused of low-level offenses or violating school policies.
“Most places are trying to de-escalate the response to minor behavior,” says Michael Harris, a lawyer for the Oakland, California-based National Center for Youth Law. Riverside County’s program “is ramping up the response.”
“There’s a value to diversion when it’s done correctly, and when it’s applied to the people who need that type of a program, and when you’re actually preventing children from going to a prison setting,” adds Sylvia Torres-Guillén, the ACLU of California’s director of education equity.
She says that programs can be helpful when officials “really assess the needs of the child.”
For instance, Torres-Guillén says, teens who are doing poorly in school might be able to benefit from a program that offers tutoring, and ones who have endured trauma might need therapy. “When you have kids who are struggling, sending them to a jail is not going to help them in their math class.”
This article was published in the May 2019 ABA Journal magazine with the title "Minor Offenses."