|IV. The Justice System
While surveys of youth suggest that underage alcohol offenses are common, only a small percentage of all such offenses are formally prosecuted and result in sanctions. Many of these offenses go undetected by police. Among those offenders that police do apprehend, many are not arrested. Among those that are arrested, many are not formally prosecuted. This chapter addresses the challenges law enforcement agencies face in apprehending youthful alcohol offenders, and the pre-sanction processing of those offenders that do enter the court system. Additionally, it describes case processing in the courts, distinguishing between juvenile and other (traffic, criminal, or family court) jurisdictions. Diversion, the use of Teen Courts, and the importance of alcohol and other drug screening and assessments are also discussed.
Challenges to Apprehending Youth for Alcohol-Related Offenses
Barriers to the Enforcement of MLDA Laws
Consumption, possession, and purchase of alcohol by underage youth is variously prohibited, depending on State statutes. Nevertheless, many communities treat underage drinking as a normal rite of passage for adolescents and fail to support the enforcement of MLDA laws (Kusserow 1991; Wolfson et al. 1995). Using arrest data from 1988 through 1990, and self-reported drinking data reported from a national survey of high school students, Wagenaar and Wolfson (1994) estimated that only 2 out of every 1,000 occasions of underage drinking result in the drinker's arrest, and that only 5 of every 100,000 youth drinking occasions result in sanctions against an alcohol outlet.
Surveys of law enforcement officers have found that, while police are aware of the extent of MLDA violations in their communities, they often are discouraged from taking stronger action due to factors including:
Factors Hindering the Enforcement of Impaired Driving Laws
In addition, time-consuming arrest procedures and legal requirements for detaining juveniles may hinder enforcement officers. A juvenile DUI arrest may take the officer off the road for 24 hours. Furthermore, juveniles who are arrested often must be supervised, sometimes for hours, until a parent or guardian can be reached.
Factors Hindering Enforcement of Zero Tolerance Laws
Trends in Underage Alcohol-Related Arrests
Law Enforcement Officers as Gate-Keepers to the Court
Case Processing in the Court System
The primary differences between the juvenile and criminal justice systems in handling offenders, as well as their common grounds, are shown in Table 4-1. As the table indicates, the language of the two systems, as well as their assumptions and procedures, differ in certain respects.
Although there are variations, typically in juvenile courts when an alcohol-related offense has occurred, a law enforcement officer will issue a citation or refer the case to the prosecutor's office or to a juvenile intake department. An initial decision will be made whether the case will be handled formally or informally. Cases handled informally by the intake department do not involve the filing of a petition or an adjudicatory hearing. Many of these cases subsequently are dismissed outright; others may result in informal probation, referral to another agency, payment of fines or restitution, or voluntary treatment outside the home. If the intake department decides to process the case formally, it files a petition and the case is placed on the court calendar for an adjudicatory hearing (or, in very rare instances, a waiver hearing for the judge to determine whether to transfer the case to criminal court).
At the adjudicatory hearing, the judge must decide whether or not the youth should be adjudicated delinquent (for a DUI offense) or a status offender (for underage purchase, possession, or consumption). If the youth is adjudicated, the judge then makes a dispositional decision. This may include probation, referral to another agency or treatment program, a fine, restitution, community service, or commitment to a residential facility. If the youth is not adjudicated, the case usually is dismissed. Alternatively, the youth may agree to some sort of voluntary diversion option. Often, a dispositional order includes multiple sanctions, such as probation plus community service.
Although there are no national or even statewide data comparing the dispositions of similar cases handled by the various court systems, data on the handling of alcohol-related offenses in the juvenile court are available. Figure 4-3 shows both the case processing and disposition rates per 1,000 DUI cases referred to a juvenile court in 1994 and the processing and disposition rates per 1,000 cases referred for other alcohol-related violations referred to a juvenile court in the same year. The figure makes clear that in juvenile courts, DUI cases are handled differently from other alcohol-related cases (such as liquor law violations). While most DUI cases were petitioned, or handled formally by the court (72 percent), only 45 percent of the non-DUI alcohol cases were handled this way. Similarly, 66 percent of the DUI offenders, but 56 percent of the other alcohol offenders, were adjudicated (or convicted, in the terminology of the criminal court). Focusing on dispositions of DUI offenders, 68 percent of those that were adjudicated were ordered to serve a term of probation while 32 percent of the nonadjudicated and 27 percent of the non-petitioned were put on informal probation. Among the other alcohol-related cases, only 46 percent of the adjudicated offenders were put on probation, while 45 percent received some other disposition (Snyder 1997b).
Case processing for alcohol-related offenses also varies among the adult court systems. For youth 1820 years old, the vast majority are handled in adult courts. In some States (e.g., Florida), 16- and 17-year-olds go to traffic court for DUI offenses, but not for other alcohol offenses. For youth under 21, there is no centralized source of data available regarding case processing outcomes.
Case processing varies among all of these various court systems, and each system has its own strengths and weaknesses for dealing with offenders. Regardless of these differences, however, certain overriding issues are important to consider in any setting. They are the swiftness of dispositions, maintaining public safety while cases are pending, the issue of diversion, and evaluating offenders for alcohol and other drug (AOD) problems.
Youth are in families, not independent Rehabilitation is usually a viable goal Open public access to all information Decision to file petition based on both social and legal factors Prosecutor acts on behalf of the State Plea negotiation is common Prosecution discretion exists in charging and plea agreements Previous history of violations is valuable to be used in the charging, disposition, If guilt is established, the youth is adjudicated delinquent or a status offender Standard of proof beyond a reasonable doubt Guilt must be established on individual offenses charged for conviction or disposition Presumption of innocence applies Defense attorney is appointed if accused is unable to retain private counsel Unanimous verdict usually necessary to establish guilt Dispositional alternatives cover wide range of community-based and residential services Disposition may be indeterminate Periodic court review of offender Juvenile court jurisdiction ends at specific age (ranges from 17-24) Disposition orders may be directed at parents Offender accountability is the goal Victims views available to court Restitution may be afforded to victim Sentence often is determinate Fines often imposed on offender Violation of conditions can result in incarceration or modified conditions of probation
Youth are in families, not independent Rehabilitation is usually a viable goal
Open public access to all information
Decision to file petition based on both social and legal factors
Prosecutor acts on behalf of the State
Plea negotiation is common
Prosecution discretion exists in charging and plea agreements
Previous history of violations is valuable to be used in the charging, disposition,
If guilt is established, the youth is adjudicated delinquent or a status offender
Standard of proof beyond a reasonable doubt
Guilt must be established on individual offenses charged for conviction or disposition
Presumption of innocence applies
Defense attorney is appointed if accused is unable to retain private counsel
Unanimous verdict usually necessary to establish guilt
Dispositional alternatives cover wide range of community-based and residential services
Disposition may be indeterminate Periodic court review of offender Juvenile court jurisdiction ends at specific age (ranges from 17-24)
Disposition orders may be directed at parents
Offender accountability is the goal Victims views available to court
Restitution may be afforded to victim
Sentence often is determinate
Fines often imposed on offender
Violation of conditions can result in incarceration or modified conditions of probation
The Importance of Swift Dispositions to Deter Youthful Offenders
Safety During Case Processing.
Administrative License Restrictions
Detention During Processing
In most courts, diversion occurs only after the youth admits that he or she has committed an illegal act. After such admission, the intake worker and the juvenile, as well as (in a growing number of instances) the victim, agree to conditions of diversion. This practice, however, varies widely throughout the United States and is not normally required for underage drinking offenses. The NDAA recommends that all diversion programs specifically set forth the requirements expected of the offender, which can include any of the possible dispositions a judge may order after a formal adjudication hearing (e.g., license suspension or revocation, restitution, home detention, and AOD abuse treatment).
The NDAA recommends that diversion requirements be designed to hold offenders accountable for their acts and include elements aimed at rehabilitation, prevention, and education (NDAA 1996). Diversion is potentially a problem, however, if the effect on the offender is so mild that he or she is not effectively deterred. Offenders who participate in a diversion program should not be able to avoid agreement to otherwise mandatory sanctions, such as license revocation. In addition, diversion should not diminish the seriousness of the offense.
In most jurisdictions, diversion may make it difficult for the court to track an offender's prior offenses, as diverted cases may not be included on an offender's record. Jurisdictions utilizing diversion for youthful alcohol offenders need to ensure that adequate records are maintained so that a youth receiving diversion
in one jurisdiction will be ineligible for a similar program in other jurisdictions. The development of State and national record-keeping systems for juvenile offenders would help ensure that offenders are held accountable for their criminal acts. Coordinated record keeping and information sharing are discussed further in Chapter 7.
Regardless of whether diversion is coordinated by the prosecutor's office or another entity (such as the corrections or probation department), it is important that the prosecutor be involved in establishing the eligibility criteria and other guidelines for the program (NDAA 1996). Likewise, it is important that judges be familiar with any diversion programs in use in their jurisdictions, both within the court system and outside of it.
Teen courts are designed to hold offenders accountable for their actions, while freeing court dockets. They are also designed to educate participating members of the public about the consequences of illegal behavior, and to help build competencies among youth by teaching how the legal system works and how to communicate and resolve problems effectively.
After an admission of responsibility, a youth may be referred to teen court. In these cases, the jury is guided by the judge in determining appropriate sanctions. Sanctions typically include writing a letter of apology, performing community service, or paying restitution to victims. Youth are often required to later serve on a teen court jury. Individual programs have conducted internal evaluations of their effectiveness, but there has been no independent evaluation of teen courts. The limited research suggests that teen courts have the potential to deter further offending, especially among older juveniles (Godwin et al. 1996). For more information on teen courts, contact the American Probation and Parole Association, listed in the Resources section of this Guide.
Evaluating Youthful Offenders for Alcohol and Other Drug (AOD) Problems
Screening and assessment instruments provide a structured and consistent way to evaluate individuals for AOD problems. Instruments used to evaluate underage offenders should be appropriate for youth and validated on a youthful population. Interviews with the offender can clarify information related to AOD use. In addition, interviews with family members, police, social workers, school counselors, and others who may be familiar with the offender also may yield valuable information (McLellan and Dembo 1993).
It is important for courts to develop policies and procedures to disclose confidential information to appropriate parties, to establish limits of confidentiality, to maintain privacy during the interview, and to obtain informed consent (McLellan and Dembo 1993).
ScreeningInitial screening is appropriate for all offenders referred to the court for impaired driving, and should be conducted as early as possible in their case processing. If possible, screening may be repeated during different stages of their involvement in the system (during intake, preadjudication, and postadjudication) to detect changes in patterns of AOD use, related problems, and the need for services over time (McLellan and Dembo 1993). Staff members providing screening should receive training in legal and ethical issues, instrument administration and scoring, interpretation of instrument results, determination of the offender's reading abilities, and interpersonal communication (McLellan and Dembo 1993).
A variety of adolescent-specific screening instruments are available. They vary in length and scope. Some are specific to alcohol, while others evaluate an individual's use of alcohol and other drugs. Instruments available for screening youth, which have been validated for this population, include the Adolescent Drinking Index: Drinking and You (Harrell and Wirtz 1985), the Personal Experience Screening Questionnaire (PESQ) (Winters 1992), and the Adolescent Alcohol Involvement Scale (AAIS) (Mayer and Filstead 1979).
If screening reveals that there is no underlying AOD problem, the court may wish to consider ordering the offender to participate in an alcohol education program (such programs are discussed in chapter 5). If screening indicates an AOD problem, it is important to perform a comprehensive assessment to determine problem severity.
AssessmentAssessment confirms the severity of an AOD problem and guides treatment planning. Assessment explores many areas of a person's life and can detect factors contributing to AOD use, including an individual's medical and mental health history, family history of alcohol abuse, traumatic family events, home environment, school history, employment history, sexual history, peer relationships, justice system involvement, and social services utilization (McLellan and Dembo 1993).
It is best for assessment to be conducted early in the offender's involvement with the justice system, and relevant sections of the instruments should be repeated both during and after treatment. Assessments should be conducted by trained professionals experienced in working with young AOD users and in the issues surrounding adolescent AOD use. These professionals include AOD abuse counselors, mental health professionals, school counselors, social workers, nurses, and physicians (McLellan and Dembo 1993). To avoid conflict of interest, it is important that assessment and treatment referral be conducted by an independent agency not associated with any treatment program.
A number of assessment instruments are designed specifically for use with adolescents, including the Adolescent Self-Assessment Profile (ASAP) (Wanberg 1991), the Comprehensive Addiction Severity Index for Adolescents (CASI-A) (Meyers 1991), the Personal Experience Inventory (PEI) (Winters and Henly 1989), and the Adolescent Diagnostic Interview (ADI) (Winters and Henly 1993). The use of such instruments should be supplemented with interviews, behavioral observation, and chemical tests, as appropriate (McLellan and Dembo 1993).