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Prosecutors have been at the forefront of diversion since its inception. Contrary to popular fiction, prosecutors are not solely charged with seeking convictions. We are ministers of justice and, at our best, champions of justice. (2) There are times, however, in which defendants do belong behind bars, and we will fight to make that happen. But, we also know the human cost of that trip to the penitentiary. There are many more cases where our real goals are to make our victims whole and to ensure that the defendant never returns to criminal court.

In January 2016, Pennington County, South Dakota, began diverting young adults (18 to 25 year olds) charged with non-violent misdemeanors out of the criminal justice system. This program follows a long tradition of prosecutionled innovations designed to ensure that a criminal defendant has a very real chance to become a productive member of society instead of a "frequent flyer."


It may be helpful to begin with a brief review of the philosophy of criminal justice in the United States. It is generally accepted that there are four legitimate goals of prosecution: punishment (sometimes called retribution), deterrence (both general and specific, which is also called incapacitation), restitution, and rehabilitation. (3) In pursuit of these goals, however, we are largely limited in the tools available to us. Practically speaking, there is prison and there is probation (with the threat of prison).

At a juvenile level, the legal presumption is that the primary goal of the system is rehabilitation. (4) This is based not just on the cultural perception of children, but also on extensively compiled evidence that juvenile behavior is only an imperfect predictor of adult behavior. (5) The science corroborates that the juvenile brain is different from the adult brain. (6) As posited by social justice researchers,"[b]rain development continues into early adulthood and... adolescents are particularly prone to risky behavior...." (7)

It appears, though, that the age of 18 is, at best, an imperfect approximation of the arrival of the "adult" brain. Psychologist B.J. Casey examined decision-making under three types of stimuli: positive, negative, and neutral. (8) In both the positive and neutral settings, she found no diminution of impulse control for eighteen to twenty-one-year-olds (as compared to 22 to 25 year olds). (9) But, under negative pressure, the younger age group showed a decreased ability to avoid behavior that they knew would be punished, performing at rates similar to teenagers. (10) In other words, when a defendant turns 18, we presume that he or she is ready for adult court and adult sanctions--even though 18 year olds are developmentally closer to juveniles than adults.

In my personal experience, the traditional approach in the adult system was not subtle--catch someone doing something wrong and punish him. If that does not work, punish him more severely next time. The entire system revolved around retribution and incapacitation. It is hardly surprising that this approach did very little to change an offender. In more recent decades, it has also resulted in extraordinary prison and jail populations. (11) All of this has led to a significant push in the United States to reduce the quantum of punishment for criminal activity, making probation mandatory or presumptive for a wide variety of crimes. (12) In this push, we have all but abandoned punishment and deterrence in favor of rehabilitation. (13) I believe that neither extreme serves communities well.

It was against this backdrop that Pennington County began to re-evaluate its approach to young adult offenders ages 18 to 25. This age group is a significant driver of criminal justice. In Illinois, young adults account for 9.8% of the total population and 33.8% of total adult arrests. (14) They also "stand out as a distinct developmental group with heightened impulsive behavior, risk taking, and poor decision making." (15) Most are not eligible for traditional specialty courts like drug or DUI courts, which are focused on chronic offenders who are one step away from the penitentiary. In fact, there is a significant body of data suggesting that "contact with the youth justice system is inherently criminogenic." (16) The good news is that young adults do not all need intensive supervision: "young people grow out of crime naturally with a decrease in impulsivity and an increase in self-control." (17) The possibility is real that our attempts to "reform" young adults are having exactly the opposite effect.

We have great hope in attempting a new approach. Diversion has proven to be a hopeful factor in assisting young adults out of the system. Diverged youth have a lower recidivism rate (33.1%) than the control group (41%).(18) Unfortunately, "hopeful" is about all that the data currently supports. Not only are there very few programs directed at young adults, but "while most [diversion programs] report a high percentage of defendants completing diversion program requirements, few keep data on recidivism." (19)

Our focus was to identify those risk-need factors that most strongly associated with recidivism and to develop interventions that watch those needs. Michael Rempel from the Center for Court Innovation has identified eight factors that contribute to heightened criminal behavior: (1) criminal behavior; (2) antisocial personality; (3) criminal thought patterns; (4) anti-social peers; (5) family instability; (6) unemployment; (7) lack of pro-social activity; and (8) substance abuse. (20)


With this knowledge in hand, we began implementing our own Young Adult Diversion Project, beginning with a pilot in January 2016. Our program has been fully implemented since August 2016. The cornerstone of our program is that the diversion process must be both: (1) harder than pleading guilty and (2) achievable by the offender. An important aspect is to ensure that our diversion agreements are individualized. Our program receives referrals from judges, defense attorneys, parents, and other prosecutors. We also actively seek out eligible participants by reviewing daily dockets in front of our magistrate judges. Once a young person is referred to our diversionary program, they go through our established protocol for intake, approval, and determination of programming requirements. Once a participant completes all their programming requirements, they are also required to successfully obey all laws for a period of one year. All potential participants are given a chart that shows how the process works:

(21) Depending on what factors seem to drive a particular offender, we utilize a variety of diversionary programs that can be characterized in four broad categories. These include: (1) educational or therapeutic programming; (2) effort-based programming; (3) alternative activities; and (4) employment activities. Subject to the individual's need, educational or therapeutic programming may be short-term, long-term, or skill-based. Examples include programs offered by Mothers Against Drunk Driving (MADD) and Lifeways, drug and alcohol treatment, vocational or general educational development (GED) classes, and criminal thinking courses such as Moral Reconation Therapy (MRT).

Effort-based programing largely revolves around community service. (22) Its success, therefore, depends on our ability to watch the offender in a place that allows the offender to do service that he or she will find meaningful. There is a huge difference between a day spent picking up trash along the highway and a day spent, for instance, building a home for a family in need. It is important to have a variety of options for offenders, both in terms of what type of work is to be done and for what cause. We are also trying to expand our network of agency partners so that more offenders can perform their service in their home communities.

Alternative activities are akin to extra-curriculars provided by schools such as art and music classes. As a coach and a teacher, I try to follow the maxim "catch them doing something good." We think of alternative activities as a nudge in that direction, replacing anti-social peers and idle time with worthwhile activities. We have also tried to have a broad selection of options that speak to the talents, interests, and cultures of each individual. (23)

A significant portion of at-risk young adults have limited employment history and, in a terrible downward spiral, have even more limited employment opportunities post-conviction. We are reaching out to community businesses to help us break that pattern. The level of involvement ranges from unpaid, 20-hour "job shadows" to true apprenticeships lasting 60 to 90 days with a full-time job as the final result. (24)

A visual representation of how each type of programming matches with the risk factors identified by Michael Rempel is seen in the following table:
                             Education  Activity  Effort  Job Programs

1. Criminal Thinking         +          +         +       +
2. Anti-Social Pers.         +          +         +       +
3. Criminal Thought Patters  +          +         +       +
4. Anti-Social Peers         +          +         +       +
5. Family Instability        +          -         -       +
6. Unemployment              +          -         +       +
7. Pro-Social Activity       +          +         +       +
8. Substance Abuse           +          +         -       +


It is far too early to declare victory. Our program has been up and running for just over a year and only approached full-scale implementation during the last quarter of 2016. But both the concept and the early numbers provide us with every reason to hope.

Since the beginning of the pilot in January 2016 to January 6, 2017, there were 150 participants referred to the Young Adult Diversion Program. (25) In the initial phase of implementation, the eligible offenses included mainly misdemeanor cases. As the Program progressed, we decided to take on non-violent, low-level, felony cases as well on a case-by-case basis. Within the first year, roughly ten percent of the participants were referred for a felony offense. (26) With the referral process now starting with an intake meeting, there is more information available regarding the case and the young adult's circumstances to make an informed decision regarding approval or denial. Almost all of the young adults being referred to the Program are approved, with less than ten percent of the total referrals being denied. (27)

Once a young adult is approved, the requirements for them to complete the Program are discussed and finalized. One of the standard requirements is for the young adult to participate in community service. The community service location and timeframe is based on the intake of the young adult and their offense. With that, the number of community service hours typically ranges between 20 and 80 hours. Within the first year of the Program, there has been a total of 4,403.8 hours of community service assigned. (28)

In the year since the Program began, almost 50 participants have successfully fulfilled their requirements. Four of the participants have completed a year-long "obey all laws" period. (29) Although it is too early to calculate recidivism for many of the participants, the anecdotal evidence and early analysis shows that the Program has a significant impact on decreasing the likelihood that the participants are involved in future criminal activity. These outcomes are consistent with the general theory of diversion.

Despite the lack of conclusive data, diversion does show results: "skill-building interventions... were significantly more effective in a diversion setting than when offered through probation/parole or in custody." (30) For us, these local results can be seen in not only the numbers of young adults who are participating, but also by their diversity as the chart below illustrates. (31)
White              125 (57%)
African American    13 (6%)
American Indian     73 (38%)
Asian                1 (1%)
Not Specified        3 (1%)
Unknown              5 (2%)

Note: Table made from pie chart.

When looking at the human factor, there are certainly signs which suggest that this program will be successful by every measure. We have already seen notable transformations. To quote directly from a program participant: "I was referred to several services within the community that helped me a lot and I didn't know these existed. This program gave me a second chance and changed my life." (32) Another recounted after completing the program:
I was really scared at first when I had to go to court for the first
time in my life. The Judge referred me to the Young Adult Diversion
Program. I was really struggling with depression and anxiety and felt
like a bad person when I first started the program. After the intake
meeting and getting started on my community service I realized that I
made a mistake but I started looking at it as a learning experience and
I started feeling better as I gave back to the community and realized
through people helping me that I am not a bad person, just a person who
made a mistake. Since completing the program I have much better
self-esteem and I now enjoy helping other people. (33)

In addition, the self-assessments by participants mirror the program goals. One told a local newspaper:
Once you do something for so long, you just stop thinking about the
consequences that it could have on your life. By the time I realized
it, it was too late. Without the YADP, I would have been slammed with
fines and tags to my name that would be easily accessible to future
employers. (34)

It is gratifying to compare that to how diversion has changed the offenders' trajectory in life. One summarized her experience:
I was not able to finish high school due to several factors. One of my
requirements was to complete my GED. This will help me greatly getting
this as I will be able to get a better job and help support my family.
This program has made a big impact in my life and a chance to start
over. (35)

And another called the program a blessing:
I had a job and was working but did not finish high school. I had a lot
of dreams of what I wanted to do but since getting in trouble I didn't
think these dreams would now be possible. I was referred to the Young
Adult Diversion Program and was accepted. I was referred to do my
community service and through that connection I developed a mentor who
really helped me out and guided me. Now I have finished my GED and I am
enrolled for college in the fall. My mentor has assisted me with
filling out applications for scholarships and tuition reimbursement
programs. I am going into a field where I will be fulfilled and help
others in my career. Since I have gone through the Young Adult
Diversion Program I can now see my dreams and future again and I know
that I can attain them. I am so blessed to have this opportunity. (36)


I doubt that we could overstate the impact that Young Adult Diversion has had on individual participants. We have seen truly remarkable transformations. We have also seen the community rally around the program in a way that is truly unprecedented. Every week, new business and non-profits step up to offer services and resources, host volunteers, and provide job shadowing and training. The goal is not just to save money, but to rescue young people who, all too often, have ended up on a downward spiral due to a single bad mistake. I am proud of everything that we have done to help light the path of these young people, and I look forward to seeing how that light will change how they contribute our community. I have hope.

MARK VARGO ([dagger])

([dagger]) Pennington County State's Attorney. This article is dedicated to the memory of Janet Reno, who championed the first drug courts and taught your author his first and best practices in seeking justice as a prosecutor. Young Adult Diversion is only possible because of the professional dedication and zeal of those who have made this program a reality: Carolyn Olson, Marty Krause and Liz Hassett. The author would also like to thank the staff of the South Dakota Law Review for their invitation to participate in this symposium and their help in editing this note.

(1.) See Psalm 119:105 ("Thy word is a lamp unto my feet, and a light unto my path.").

(2.) Hanging in my office is a quote from Justice Sutherland:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. Berger v. United States, 295 U.S. 78, 88 (1935).

It was first given to me by H. Scott Fingerhut of the Dade County State's Attorney's Office.

(3.) See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 420 (2008) ("punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution").

(4.) See State v. Jones, 521 N.W.2d 662, 667 (S.D. 1994) ("The purpose of juvenile court proceedings is not to punish but rather to rehabilitate and correct a juvenile's behavior so as to avoid future confrontations with the law.").

(5.) See, e.g., The Teen Brain: Still Under Construction, NAT'L INST. OF MENTAL HEALTH, DEP'T OF HEALTH AND HUM. SERVS.(2011), (explaining that differences in the urgency and intensity of emotional reactions and in the ability to control impulses are due in part to immaturity of and changes occurring in the brain structure during adolescence).

(6.) See Tim Requarth, Neuroscience is Changing the Debate Over What Role Age Should Play in the Courts, NEWSWEEK (Apr. 18, 2016), ("Few would argue that a 13-year-old is developmentally the same as a 25-year-old, but there's a gray zone in between, says B.J. Casey, director of the Sackler Institute for Developmental Psychobiology at Cornell's Weill Medical College.").

(7.) Lael Chester & Vincent Schiraldi, Public Safety and Emerging Adults in Connecticut: Providing Effective and Developmentally Appropriate Responses for Youth Under Age 21, HARV. KENNEDY SCH. MALCOLM WEINER CTR. FOR Soc. POL'Y, 9-10 (Dec. 28, 2016),

(8.) Requarth, supra note 6.

(9.) Id.

(10.) Id.

(11.) Fact Sheet: Trends in U.S. Corrections, SENTENCING PROJECT, 2 (Mar. 2017),

(12.) In South Dakota, this reform took the form of S.B. 70, a measure that the legislature passed and the governor signed in 2013. S.B. 70, 88th Leg., Reg. Sess. (S.D. 2013). Following its enactment, most Class 5 and 6 felonies were all designated as "presumptive probation" offenses. Some exceptions were carved out for sexual and violent offenses. Id. The list of crimes includes Drug Possession, Grand Theft, Felony DUI (Third and Fourth Offense), Burglary and Forgery. Id.

(13.) See Morgan O. Reynolds, Does Punishment Deter?, NAT' L CTR. FOR POLICY ANALYSIS (Aug. 17, 1998) (citations omitted), (stating that "[l]arge, influential segments of the academic and legal communities advocate dealing with crime through rehabilitation," but "there is little evidence that rehabilitation works" because it does not reduce recidivism).

(14.) Kanako Ishida, Young Adults in Conflict with the Law: Opportunities for Diversion, JUV. JUST. INITIATIVE, 4 (Feb. 2015),

(15.) Reducing Recidivism and Improving Other Outcomes for Young Adults in the Juvenile and Adult Criminal Justice Systems, COUNCIL OF ST. GOV'T JUST. CTR, 1 (Nov. 2015),

(16.) Lesley McAra & Susan McVie, Youth Justice? The Impact of System Contact on Patterns of Desistancefrom Offending, 4 EUROPEAN J. CRIMINOLOGY 315, 318 (2007).

(17.) Ishida, supra note 14, at 1. The reduction in criminal behavior is attributed to a variety of factors, including increased self-control and employment and decreased aggression and exposure to anti-social peers. Id. at 2 (citations omitted).

(18.) Holly A. Wilson & Robert D. Hoge, The Effect of Youth Diversion Programs on Recidivism: A Meta-Analytic Review, 40 CRIM. JUST. BEHAV. 497, 505 (2013).

(19.) Pretrial Diversion in the 21st Century, NAT'L ASS'N OF PRE-TRIAL SERVS. AND AGENCIES, 19 (2009), https://netforumpro.eom/public/temp/ClientImages/NAPSA/18262ec2-a77b-410c-ad9b-c6e8f74ddd5b.pdf.

(20.) Michael Rempel, Evidence-Based Strategies for Working with Offenders, CTR. FOR COURT INNOVATION, 2 (Apr. 2014), Offenders.pdf.

(21.) Public Hand-out, Pennington County State's Attorney's Office.

(22.) Meaningful placements locations include non-profit agencies such as Habitat for Humanity, humane societies, and placement in the offender's home community. A limitation to this strategy, however, has been that not every agency can accommodate volunteers due to lack of supervision and other associated costs such as insurance coverage.

(23.) Given Pennington County's significant Native American population, culturally-appropriate alternative activities previously utilized include Lakota Ways, Young Men's Camp, Native American arts and dance programs, and Horse Therapy.

(24.) Another strategy we use to assist individuals with employment is the use of South Dakota State Technical School scholarships. We are deeply appreciative of our partners in this endeavor to find these young adults employment, notably many local-area businesses.

(25.) Young Adult Diversion Program database (on file with the Pennington County State's Attorney's Office) [hereinafter Young Adult Diverson Program].

(26.) Id.

(27.) Id.

(28.) Id.

(29.) Id.

(30.) Wilson & Hoge, supra note 18, at 512.

(31.) Internal Data, Pennington County State's Attorney's Office.

(32.) Young Adult Diversion Program, supra note 25.

(33.) Id.

(34.) Lacey Peterson, New Diversion Program Helps Young Adults Avoid Prosecution, BLACK HILLS PIONEER (Apr. 1, 2017),

(35.) Young Adult Diversion Program, supra note 25.

(36.) Id.
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Author:Vargo, Mark
Publication:South Dakota Law Review
Date:Sep 22, 2017

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