Factors Influencing Police Attitudes towards Extrajudicial Measures under theY outh 1 Criminal Justice Act

Voula Marinos Department of Child and Y outh Studies, Brock University Nathan Innocente Department of Sociology, University of Toronto

`me de justice Des mesures extrajudiciaires prises en vertu de la Loi sur le syste nale pour les adolescents forcent les policiers a ` changer leur manie `re pe pondre aux jeunes. La Loi contient une structure et des directives de re cises sur la pertinence des mesures extrajudiciaires. Elle nempe che pas pre ` ces mesures me me en cas de re cidive. Comme laccent est de recourir a de la mesure, les policiers mis sur la responsabilisation et la proportionnalite du comportement de linquant doivent tenir davantage compte de la gravite ` partir dexemples ce dents de de linquance. A de ladolescent que de ses ante s de sondages (n 70) et dentrevues de taille es (n 64) mene es tire `s de 70 policiers de cinq sphe `res de compe tences en Ontario, on a aupre couvert que ceux-ci accordent une importance relativement grande aux de rieurs avec les forces policie `res (mesures extrajudiciaires ou contacts ante ). Cela influe grandement sur leur attitude reconnaissance de culpabilite ` e viter aux jeunes des peines pour des de lits mineurs comme un me fait a ` le talage. Les re sultats sont analyse s dans le contexte de ou un vol a cisionnel visant a ` e viter des peines aux jeunes lattitude et du processus de du Canada. `me de justice s : mesures extrajudiciaires, diversion, Loi sur le syste Mots cle nale pour les adolescents, processus de cisionnel des policiers pe Extrajudicial measures under the Youth Criminal Justice Act require police to reorient their thinking about how to respond to youth. The act provides specific structure and guidance to police about the appropriateness of extrajudicial measures and does not preclude its use when a youth received one in the past. The emphasis on accountability and proportionality suggests that police ought to be driven by the seriousness of the youths offending behaviour and much less by the youths record. Drawing from a sample of 70 police officers from five jurisdictions within Ontario, our surveys (N 70) and

2008 CJCCJ/RCCJP doi:10.3138/cjccj.50.4.469

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in-depth interviews (N 64) with police reveal that they place relatively heavy weight on prior police contact of any kind (past extrajudicial measure or finding of guilt) and that this has a significant influence on their attitudes towards diverting youth for minor offences like mischief and shoplifting. The results are analyzed within the context of literature on police attitudes and decision making to divert in Canada. Keywords: extrajudicial measures, diversion, Youth Criminal Justice Act, police attitudes

Introduction
The principle of screening cases by police and diverting them from court is an important one in Canadian youth justice history. Since a separate system of justice was first established for youth in this country, it has been acknowledged that non-serious youthful offenders, particularly first-time offenders, need to be treated differently from and more informally than serious offenders. The Juvenile Delinquents Act (19081984) did not include diversion provisions per se, but the practice of police officers warning youth and releasing them was common (Bala 2003: 273). Under the Young Offenders Act (YOA) (19842003), diversion was partially codified. Alternative Measures (section 4) were available generally for youths who committed non-serious offences. Although youths with past police contact were eligible for alternative measures, such measures were imposed primarily, although not exclusively, for those who did not have an offending record.2 In all provinces and territories except Ontario and the Yukon, police could divert youth pre-charge (Kowalski 1999: 3 at footnote 2). One shortcoming of the diversion legislation under the YOA was the relative lack of structured guidance to key decision-makers like police and Crown prosecutors (Bala 2003: 273). Diversion was constructed with relatively non-specific criteria for consideration of protection of the public, needs of the young person, and least interference (section 3(1)(f)).3 On the whole, evidence showed that alternative measures were underused and inconsistently applied across different provinces, and there were claims that net-widening occurred in some provinces (Bala 2003: 277). A fundamental feature of the current Youth Criminal Justice Act (YCJA) (2003) is the emphasis on diversions with specific principles, criteria, and prohibitions now called extrajudicial measures and extrajudicial

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sanctions. Diversion is more structured and specific under the YCJA, compared to the YOA. Section 4 of the YCJA sets out the specific guiding principles underlying extrajudicial measures:
a. extrajudicial measures are often the most appropriate and effective way to address youth crime; b. extrajudicial measures allow for effective and timely interventions focused on correcting offending behaviour; c. extrajudicial measures are presumed to be adequate to hold a young person accountable for his or her offending behaviour if the young person has committed a non-violent offence and has not previously been found guilty of an offence; and d. extrajudicial measures should be used if they are adequate to hold a young person accountable for his or her offending behaviour and, if the use of extrajudicial measures is consistent with the principles set out in this section, nothing in this Act precludes their use in respect of a young person who i. has previously been dealt with by the use of extrajudicial measures, or ii. has previously been found guilty of an offence.

Section 4 clearly states that extrajuducial measures are appropriate, effective, and timely. Many youth can be held accountable for their actions specifically through the use of different extrajudicial responses by the police pre-charge: take no further action, warning, caution, and referral to community-based agencies. A police officer can decide to take no further action with a young person as contact with police alone, in some circumstances, may be sufficient in holding the young person accountable. The measures are explicitly structured so that youth, regardless of whether they have been through the formal system in the past, can be held accountable through non-court alternatives for their current offence(s). If the young person cannot be dealt with adequately with a measure and police lay a charge, then a Crown prosecutor also has an opportunity to divert the young person from the formal court process by referring a young person to an extrajudicial sanction program (s. 10(1)). Therefore an extrajudicial sanction is one type of extrajudicial measure but at the post-charge stage.

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Section 5 of the YCJA sets out the specific objectives of extrajudicial measures:
5. Extrajudicial measures should be designed to a. provide an effective and timely response to offending behaviour outside the bounds of judicial measures; b. encourage young persons to acknowledge and repair the harm caused to the victim and the community; c. encourage families of young persons including extended families where appropriate and the community to become involved in the design and implementation of those measures; d. provide an opportunity for victims to participate in decisions related to the measures selected and to receive reparation; and e. respect the rights and freedoms of young persons and be proportionate to the seriousness of the offence.

Therefore extrajudicial measures have been carefully crafted to enable the wide use of diversion to accomplish a variety of objectives.

Police attitudes and extrajudicial measures

The purpose of this study was to understand the factors that affect police attitudes towards a decision to divert or charge, particularly for minor offences that are most likely to be diverted. Given the emphasis on accountability within the limits of proportionality (s. 3(1)(b)(ii); Barnhorst 2004: 234), the current offence rather than any past offence(s) should drive a police officers consideration of extrajudicial measures. But the failure of a police officer to consider these options does not make any subsequent charges against the young person for the offence invalid (s. 6(2)). Therefore police have considerable discretion and a Crown prosecutor can offer a youth extrajudicial sanctions if she or he feels the case is appropriate for diversion. The YCJA is clear that past offending behaviour should not rule out an officers decision to impose an extrajudicial measure (s. 4(d)(i) & (ii)). But as Barnhorst points out,
This principle [section 4(d)] is intended to counter the tendency under the YOA to restrict alternative measures to youths who

Police Attitudes towards Extrajudicial Measures had no youth court record and no previous involvement with alternative measures. Under the YCJA, the commission of another offence after being found guilty or dealt with by extrajudicial measures does not mean that the previous responses were a failure or that an extrajudicial measure would not be adequate to hold the youth accountable for the current offence. Parliaments implicit message to police and prosecutors is that less serious offences are still less serious even though the youth has committed previous offences, and that it is likely that an extrajudicial measure would be adequate to hold her/him accountable. (emphasis added) (2367)

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It is clear that the extrajudicial measures under the YCJA are premised on the idea that youth can be held accountable through various forms of diversion, even if the youth has received extrajudicial measures in the past or has a record of offending. This requires police to shift their thinking from the YOA, when there was a tendency, in practice, not to offer alternative measures if there was past involvement with the police (Bala 2004: 273). Clearly there are different approaches to responding to youth crime, and the YCJA emphasizes the principle of accountability for present offences. The overriding principles of accountability for the young persons offence and proportionality (ss. 4(c) & (d)) suggest that same offences should be treated relatively alike. At the same time, the discretion that is built into the YCJA allows police and Crown prosecutors to make decisions based upon the young persons circumstances, such as prior offences, aggravating circumstances relating to the offence, young persons attitude/responsibility, age, and others. Variability should be expected, to some extent, in how young people are dealt with under the YCJA, but the legislation is clear and direct on when youth ought to be considered for diversion through extrajudicial measures. Research that asks police about their attitudes and decisions to divert or charge has shown that, in general, the seriousness of the offence, the youths prior contacts with police, and youths attitude are the most influential factors (Doob and Chan 1982; Doob and Cesaroni 2004; Carrington 1998). Most recently, Carrington and Schulenberg (2005) reported that 96% of the police officers they surveyed stated that past record is a major factor (87%) in their decision making under the YOA, and that prior record is as important as seriousness of the offence (165166). It is unclear from their research whether past record (finding of guilt) or knowledge that a youth was warned, for

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instance, is considered prejudicial in their attitude towards offering another extrajudicial measure (see also Bell 2007: 218219). Successful implementation of the YCJA requires a new orientation to youth in conflict with the law. Although diversion has always been part of youth justice, it is important to know what factors impede officers attitudes towards diversion under the new law. Given the specific principles and criteria of extrajudicial measures under the YCJA that respond to the tendency to exclude diversion because of prior criminal justice contact, it was anticipated that police officers might be more willing to support measures for relatively non-serious offences, whether or not the young person had received measures in the past or has a criminal record.

Methods
The overall sample consisted of 70 police officers from five geographically diverse regions across Ontario collected from January to July 2005. Our primary rationale for site selection was our desire to engage with sizable police forces, specifically those with more than 150 sworn personnel. We contacted police forces from a short list of cities with populations over 100,000 to determine their overall personnel strength. In all jurisdictions that we approached, the Police Chief consented and then informed police officers of the study. If police officers desired to participate, they were required to provide consent to the researchers and were guaranteed confidentiality. We were put in contact with a representative from each force, and we agreed upon a particular day or series of days over which we could distribute the questionnaires and conduct follow-up interviews. Therefore the interview sample (n 64) was a subset of the questionnaire sample (n 70). In six cases we were unable to interview the police officers but their questionnaires were included within the study. The interviews were conducted with whoever was available and consented on those specific days (i.e., whichever shift was on patrol or whoever was working in the youth division). All interviews were conducted face-to-face with the exception of one jurisdiction, in which phone interviews were conducted. In this jurisdiction, the Police Chief advertised the study to youth division officers. We mailed surveys to the police department. Those respondents who decided to participate mailed the surveys back to us, and followed

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up by phone to agree on a mutually convenient date for a telephone interview. The total survey sample of police (N 70) consisted of patrol officers (n 35) and youth officers and school resource officers (n 35) from five jurisdictions. We did not intend to sample specific types of police officers because we were interested in the attitudes of all those who would potentially apply the Youth Criminal Justice Act. The surveys that were returned to us were, coincidentally, split evenly between these two groups of officers. Four officers (from two different jurisdictions) reported having limited experience with the YCJA. Of these four, two reported that they received little to no training about the YCJA. While youth and school resource officers likely come in contact with youth more than patrol officers do, our research questions were geared towards understanding police officers attitudes towards diversion and their understandings of their behaviour. Therefore a comparison between the groups, while interesting, was not related. We have aggregated the data of the respondents from each police force to form one sample. The nature of our sample raises issues of representativeness. Convenience sampling methods were used to form the police sample. Also participation between regional police forces was not consistent. The purpose of this research was to examine police officers understanding and factors affecting their attitudes towards applying extrajudicial measures rather than to compare regions or generalize to a population. Our in-depth interviews provide rich information about how and why police officers choose to divert or charge, and the rationales underlying their attitudes. Some of our survey questions related to police officers attitudes towards implementation of extrajudicial measures using hypothetical case scenarios. Many of the interview questions related to the questions within the survey, and police were asked to explain why they chose a particular answer and to expand on their rationale. The interviews were transcribed and coded for themes and concepts (Rubin and Rubin 1995) and are presented in the findings section. Since the interview questions asked police to offer explanations about many of their answers in the structured questionnaire, we cross-checked the quantitative data with the qualitative data, and these formed the basis for much of the coding. On the other hand, we were able to ask some questions independent of the survey during the interview that spoke to the approaches and objectives that police

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have when considering extrajudicial measures. This information was rich and nuanced, and provided a framework within which to understand more deeply the quantitative data.

Findings
We asked police about their attitudes towards extrajudicial measures its appropriateness for different offences and what is accomplished through this type of response to young offending. We found that most police view extrajudicial measures as appropriate for a wide variety of offences, including minor property offences, minor assaults, and first-time offenders. Across each goal that extrajudicial measures are designed to achieve timeliness, reparation, participation of family and community, victim involvement, respecting rights, and proportionality (s. 5(ae)) the majority of police rated the ability of extrajudicial measures on the whole moderately well (mean 67.5%), as somewhat effective and effective. In the abstract, then, police see extrajudicial measures as having relatively positive qualities. Some officers were also positive about the role or place that extrajudicial measures have in the range of options available to them, to parents, and to the justice system more broadly:
Ive actually thought it [extrajudicial measures] worked quite well. I havent seen a lot of issues with it. Ive dealt mainly with the extrajudicial measures and I find it better than dealing with the criminal charge, because with the criminal charge the parents call me and say, Well, that was a joke. That didnt work at all . . . Kids dont take it seriously and, no offence, but judges dont take it that seriously, and out they go. And thats not the victim; its usually the accused parents that are complaining, which is kind of ironic, because they dont feel that their son or daughter is going to learn from this. Whereas the extrajudicial measures at least they feel theyve learned something because it forced them to do something.

Another police officer pointed out,

I think that the YCJA is easier to work with than the YOA. I do agree that it [extrajudicial measures] is less burdening on the courts for things that are simple, especially if the kids willing to take some responsibility for it.

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While this was the general sentiment expressed by many officers in the survey, further probing through interviews revealed a trio of variables the seriousness of the offence, a youths past record of offending, and the youths attitude that were shown to significantly influence officers attitudes towards diversion. Factors influencing police attitudes toward the decision to divert or charge We asked police to identify the primary and secondary factors that they consider when deciding whether to offer an extrajudicial measure under the Act, compared to charging a youth. Table 1 presents these findings. The findings from Table 1 show that almost three-quarters (73.7%) of the respondents identified the seriousness of the offence as the primary factor influencing how they choose to respond to a young person. No other factor accounted for more than 9%. Over 40% (42.3%) of police officers selected the youths history of police contact as the most crucial secondary factor, followed by the youths attitude (14.8%) as the most frequent response.

T able 1: Factors considered as primary and secondary in importance by officers when deciding whether to divert or charge
Factor Considered Seriousness of Offence Prior Contact with Police/Record Youths Attitude Victims Wishes Needs of Youth Meaningful Consequences Proportionate Accountability Total Percentage Consider Factor as Primary 73.7% (42) 8.8% (5) 3.5% (2) 3.5% (2) 3.5% (2) 3.5% (2) 3.5% (2) 100% (57) Percentage Consider Factor as Secondary 11.1% (6) 42.3% (23) 14.8% (8) 11.1% (6) 7 .4% (4) 7 .4% (4) 5.5% (3) 100% (54)

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Past record of offending In order to understand how police officers interpret a youths history of police contact, in the context of the present offence and in applying extrajudicial measures under the YCJA, we asked them to respond to several non-serious offence scenarios involving youth, such as spray painting. In order to understand the influence of a young persons previous offence history on electing to use extrajudicial measures compared to charging, we presented variations on this scenario by altering the youths past record of offending and the response that he received, from a previous warning, caution, police-based diversion,4 referral, youth justice committee, and past finding of guilt for the same and a different offence (mischief or shoplifting offences). Table 2 shows the results of police responses about the appropriate extrajudicial measure or their choice to charge according to the nature of Roberts history of police contact/record.
T able 2: Appropriateness of extrajudicial measures or charging for the offence of mischief and variations on past offence history
The appropriate response is to give a . . . Y outh Justice Committee 15.7% (8) 1 1.8% (6) 9.1% (5) 9.3% (5) 9.8% (5) 1 1.8% (6) 14.8% (8) 9.6% (5)

Warning & Caution1

Police-Based Diversion2

Referral

Charge 37 .3% (19) 47 .1% (24) 87 .3% (48) 88.9% (48) 23.5% (12) 27 .5% (14) 48.1% (26) 57 .7% (30)

T otal 100% (51) 100% (51) 100% (55) 100% (54) 100% (51) 100% (51) 100% (54) 100% (52)

Robert Has a Prior Record for Spray Painting Prior Warning 7 .8% 21.6% 17 .6% (4) (1 1) (9) Prior Caution 2.0% 17 .6% 21.6% (1) (9) (1 1) Prior Referral 1.8% 0 1.8% (1) (1) Prior Finding 1.9% (1) 0 0 of Guilt Robert Has a Prior Record for Shoplifting Prior Warning 27 .5% 21.6% (14) (1 1) Prior Caution 1 1.8% 27 .5% (6) (14) Prior Referral 9.3% 13.0% (5) (7) Prior Finding 7 .7% (4) 9.6% of Guilt (5)
1 2

17 .6% (9) 21.6% (1 1) 14.8% (8) 15.4% (8)

Combined because of low numbers When police divert a youth by developing an option that is not considered a warning, caution, or referral to a program. One example is for the youth to paint a wall that the she or he had spray-painted.

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Table 2 demonstrates that past police contact and type or nature of the contact makes a difference to police. Across both scenarios describing Roberts past record of offending spray painting and shoplifting the proportion of police support for charging the youth for the current offence of mischief increases as the past response for these offences increases in severity from warning and caution as the least severe (7.7%) to charging as the most severe (37.3%). The same pattern was found in the scenario describing Robert having a past record for shoplifting there is penal escalation according to the severity of his past sentence. Table 2 also demonstrates that police were more willing to choose an extrajudicial measure as an appropriate response when the youths past record was for an offence that was different (shoplifting) from the current offence (spray painting). Police were more likely to charge the youth, and less supportive of extrajudicial measures on the whole, for the current offence of spray painting when he was found spray-painting in the past regardless of the type of prior response to this act compared to when told he had a past record for shoplifting. For example, when told that Robert had a past finding of guilt for spray painting, 88.9% of police supported charging, compared to 57.7% police support when told he had a finding of guilt for shoplifting in the past. The same pattern is present for each past response warning, caution, police-based diversion, referral to a program, youth justice committee, and a previous finding of guilt. Therefore prior dispositions make a difference to police, and the type of prior record or police contact influences their attitudes towards diversion. Three strikes and youre out In a final scenario, we told police to imagine that a female youth has stolen cosmetics worth $40 from a local store and she has done so on two previous occasions for which she received extrajudicial measures. The first time she stole, she was warned, and the second time she was referred to a shoplifting program. She successfully completed the shoplifting program.5 Just over half of the police respondents (57.9% [40], [n 70]) indicated that the cosmetics case offence was serious or very serious, compared to somewhat or not at all. However, when police were asked about how they would respond to this youth, 94% indicated that they would charge her with a criminal offence, compared to offering her another measure.

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Almost 90% (89.5%, n 57) of the police placed somewhat heavy or heavy weight on the previous record of thefts in their final decision. Almost 80% of the respondents (79%, n 57) placed somewhat heavy or heavy weight on the past referral program that the youth completed. It appears that the successful completion of the youths past shoplifting program was not viewed, however, as being positive in her candidacy for another extrajudicial measure or referral or counselling program for the current offence. Progressive discipline, past record, and accountability Our interviews with police focused on their understandings of how they make decisions between extrajudicial measures and charging. The interviews revealed nuances of the ways in which a youths past record of offending influences their attitudes towards diversion in the context of the YCJA. Two key themes emerged: progressive discipline and accountability. Progressive discipline Some officers discussed the practice of applying a progressive discipline approach to youth with prior police contacts.6 Progressive discipline implies that police will apply a more severe response to the youth than the one he or had previously received for preceding offences. A youth with a previous warning will be cautioned next time around, and a youth who was cautioned in the past may be referred to a community agency, and a youth with a previous referral may be charged. Overall, prior police contact makes it less likely that a youth will be given the same extrajudicial measure a second time, irrespective of the (lack of) seriousness of the youths current offence. Instead, the severity of the present response is increased, on the basis of prior contact. One officer stated,
Whenever Im dealing with a youth, it all comes down to prior contacts depending on what we do with him at that point. Normally I deal with drugs, and if the youth has prior drug contacts in our police service, such as a warning or a caution, we just go the next step up usually. And if they had a pre-charge [extrajudicial measure] we wont give them two pre-charges, wed go right for a charge. So, prior contacts/record is probably the most important thing that we look at, because well want to go one step up if theyre not getting it.

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Another officer echoed sentiments alluding to penal escalation for youth with prior contacts:
Basically we want to make sure taking into consideration whether they have been dealt with before by a warning or a caution, whether its going to be enough compared to the last one.

In many instances, officers referred to the limited effectiveness of multiple extrajudicial measures for youth with several police contacts. Officers were more likely to lay charges if they believed that a youth had received an adequate number of pre-charge diversions but was still not getting it. The threshold for what constituted an adequate number of extrajudicial measures varied from as little as a single warning or caution to several measures extending through the range of pre-charge options available under the YCJA. One officer noted,
If theyve been charged before and theyre not getting it, then theyre getting charged again. Thats my view. The kids already been in the system, they know whats expected of him, theyve been through it, theyve probably had a warning leading up to the previous charge. I look at the previous warning because youre not getting 10 warnings.

Another officer provided a similar message about the minority of youth who reoffend and therefore are not eligible for an extrajudicial measure the second time around:
Deciding whether or not to use a warning when a young person has previously been charged with a criminal offence isnt hard for me. I do not do it. The nature of the offence doesnt matter to me. If a young person comes into contact with the police a second time in this manner, it obviously means that he or she isnt part of the majority of young persons, who, after one, never come into contact with us again.

For some officers, progressive discipline was conceptualized as a step-by-step escalation within available extrajudicial measures before charging the next time. For other officers, evidence of any past extrajudicial measure signalled the need, the next time around, to escalate immediately to a charge, even if the current offence was relatively minor.

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The interview data showed that a youths past record is the most important factor shaping the direction of the police officers response to the seriousness of the offence. In other words, a first-time offender who has committed a relatively non-serious offence is likely to be offered an extrajudicial measure, but past police contact makes this possibility considerably less likely, regardless of the current offence. Past record and accountability Our interviews revealed that most officers coupled a youths past record of offending with the degree to which extrajudicial measures are capable of holding a youth accountable for the offence. Although prevention of crime is a broad goal under the act (s. 3(1)), accountability is related to youths being made responsible for their actions (current offence), irrespective of reoffending. Our interviews showed that some police officers were positive about the ability of extrajudicial measures to accomplish accountability when appropriate. However, assessments of whether extrajudicial measures can hold youth accountable for their present offence was influenced heavily by the presence of past police contacts. As one officer commented, I mean, did you learn the first time? Did you learn the third or fourth time? Probably not. While this could lead progressively to a more disciplinary response within the range of pre-charge diversions, such as using a referral rather than a second caution, police reported that in many cases it meant that a youth would be charged. One officer noted,
Ninety per cent of the time its repeat offenders . . . this is someone whos on probation whos this and that, whos been picked up 10 times, so OK, here ya go, charge you with theft under, take you home, and let the courts deal with it . . . I would say thats the heavy, their record. I dont mind if some kid who went out with three of his friends and has never stolen anything before, and I dont mind just putting in a report and taking them home, hoping that getting caught was enough of a deterrent so that theyre not going to do it again.

Another officer commented,

I think that the whole idea of the YCJA is benefiting and rehabilitating the youth, so those are the things you have to take into consideration when holding the youth accountable, and exactly

Police Attitudes towards Extrajudicial Measures what measure is proportionate, as I said again, would be what category of offence it was, and also what their background is, what their situation is at home, as well as their criminal record.

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Youths attitude Our interviews showed that police do not view that there is something inherently lacking in extrajudicial measures but, rather, that youths who have prior police contact require a higher level of accountability than diversionary responses can accomplish. Police officers responses to youths, consistent with past research (Doob and Chan 1982; Carrington 1998), are also influenced by extralegal factors such as attitude. Following a youths past police contact, a youths attitude was emphasized by our police respondents as a key factor influencing whether or not they are likely to make use of a measure (see also Table 1). We found that police assess a youths attitude and use it as a gauge for the appropriateness and adequacy of extrajudicial measures. As one officer remarked, Of course attitude is huge. Are they remorseful? Did they know they did anything wrong? According to police, a youths perceived display of remorse and taking responsibility for his or her actions contributes to the likelihood that he or she will be held accountable outside of the formal court process. As such, it forms part of the informal criteria for determining the adequacy of extrajudicial measures, as noted by one officer:
More minor crimes are more likely to get a diversion, whereas more serious ones wont. Our criteria are that the youth has to accept responsibility, show some kind of remorse. Youths attitude being a general term, I would say that goes a long way as far as remorse and accepting responsibility, so if they have a bad attitude that would go hand in hand with not accepting responsibility.

Another officer commented,

I also consider the victims wishes. But its almost entirely the youth attitude . . . if they dont pass the attitude test, theres no need to go on to diversions, and you end up going with the arrest.

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Some officers described the necessary components of assessing youth responsibility, including remorse and admission of guilt:
And it is difficult for them to fully admit. They will admit that they are doing something, and their tendency is that unless they admit to 100% accountability, then I wont recommend them for any of these measures, unfortunately, because at the end of the day we are wasting our time. And a lot of kids will say, Yeah, I was there, and maybe I did something, but someone else was there and they did something too . . . I am in favour though of putting on the Crown brief recommend for an extrajudicial measure, and have other committees and parties follow through so that the charge is at least hanging over their head, so if they dont follow through, the charge is followed through. I like that idea better than pre-charge.

Two points stand out in relation to youth attitude and responsibility. First, although youth display of responsibility may be important for some officers, it is not a legal requirement for measures under the YCJA. Admission of guilt is not a requirement for being offered an extrajudicial measure, but the youth must consent to the measure (s. 6(1)). In contrast, admission of guilt is a requirement for an extrajudicial sanction (s. 10(3)(a) & (b)). Second, police discussed youth attitude as important in itself, but also as it related to accountability. Attitude represents a proxy for remorse and responsibility two components that many officers felt were necessary to justify the use of extrajudicial measures. At the same time, a youths attitude signalled to the officer the ability or inability to be held accountable through extrajudicial measures. Poor attitude denotes a lack of remorse for the offence and signals to the officer that the youth has not taken responsibility for the offence. In this case, therefore, a diversion is highly unlikely to be offered, regardless of the present offence committed or the youths prior history.

Discussion and conclusions

The present study involved police attitudes towards diversion and charging, and their understandings about how they behave. Police officers are meant to shift their thinking in responding to youth crime through extrajudicial measures compared to alternative measures with an explicit emphasis on assessing accountability for

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the present offence. Although this goal has been facilitated through structured pre-charge diversion for police officers much more than under the YOA, we found that some police have not reoriented their thinking consistently with the extrajudicial measures provisions. Our study shows that extrajudicial measures represent an extension of the categories available to police, without the requisite changes in thinking about the YCJA that are, to some extent, necessary for its successful implementation. Consistent with past research on police attitudes and decision making under the JDA and YOA, police continue to be influenced by the seriousness of the offence, past police contact, and the youths attitude. We suggest that the emphasis given to these factors prevents police officers from considering extrajudicial measures as much as they could. Under the YCJA, police are meant to place more importance on the seriousness of the current offence, and much less on prior contact, in deciding whether a youth can be held accountable by an extrajudicial measure. Therefore we expected that past records of offending, particularly when minor, would not unduly affect an officers perspective on the appropriateness of imposing an extrajudicial measure for a relatively minor offence. However, past record of offending in any and all forms continues to play a predominant role in police assessing the ability or appropriateness of an extrajudicial measure in holding a youth accountable in our study. This finding cannot be explained by police attitudes about the inadequacy of extrajudicial measures. We found that police rated extrajudicial measures relatively positively in accomplishing the goals that they are designed to (s. 5 (ae)), and they were willing to impose measures for a variety of relatively non-serious offences like mischief and shoplifting. Consistent with past research on police attitudes and decision making (Doob and Chan 1982; Carrington and Schulenberg 2005), we found that the seriousness of the offence continues, as under the JDA and YOA, to be the first threshold that youth must meet in order to be considered for diversion. In a recent study, Carrington and Schulenberg (2004) found that the more prior contacts with police, the higher the likelihood a charge would be laid. We found that a youths past record influenced police attitudes in three different ways: choosing not to divert, progressive discipline, and assessing whether the youth can be held accountable through extrajudicial measures. Although the YCJA provides clear guidance to police that extrajudicial measures are often the most appropriate and effective way to address youth crime (s. 4(a)), even if the youth received a past

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measure for the same offence section 4(d), our findings show that police are relatively unwilling to do so. Additionally, within the limits of our sample, the proportion of police support for charging increased when the youth had a record for the same offence as the current act, and increased with the severity of the extrajudicial measure that the youth received in the past. We found widespread evidence of progressive discipline or the tendency to support escalation of the penalty based upon the one given last time. Almost all police in our sample answered that they were unwilling to offer an extrajudicial measure to a young person a third time, having received two extrajudicial measures in the past for a minor shoplifting offence. It appears that each extrajudicial measure is conceptualized as ranked along a continuum of severity, and the use of one measure in the past prohibits its use again. Some officers stated that they step up within extrajudicial measures, from measure to referral to charge, for example, while others would move from any measure immediately to charge. Finally, our data show that a youths attitude was found to be the next important influence upon police attitudes and was also intimately related to the officers assessment of a youths potential to be held accountable through an extrajudicial measure. Police pointed in particular to a youths display of responsibility and remorse as a proxy for the ability of extrajudicial measures to hold the youth accountable. If the youth could not express remorse and responsibility for his or her actions, then extrajudicial measures were viewed as inadequate to reinforce these characteristics. Admission of guilt, however, is not a requirement for consideration of extrajudicial measures (compared to extrajudicial sanctions) under the YCJA. The nuanced ways that factors such as seriousness of the offence, past police contacts, and youth attitude manifest themselves within the context of the YCJA sheds light on how police interpret and adapt new legislation to their current framework. The findings suggest that an increase in police training and resources would be beneficial. It is possible, however, that training and resources may need to vary or be tailored to the nature of the officers specific position (i.e., patrol or school resource officer). This may be an area for further research. Additionally, further research on police attitudes and decision making is required as officers gain more experience with implementing the YCJA. Our findings suggest that significant reorientations in thinking by police about youth crime and the law have not yet taken place.

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Instead, diversionary measures represent a restructuring of police discretion, reshaping and extending the procedural categories available to police without the requisite changes in attitudes about the YCJA that are, to some extent, necessary for its application as intended by legislators.

Notes
1. The authors wish to thank all officers and police chiefs for their time in considering and participating in the research study. Thank you is extended to Dick Barnhorst, Department of Justice Canada, and Paula Osmok, Executive Director, John Howard Society of Ontario for their support, and funding by the Department of Justice Canada. The authors gratefully acknowledge the research assistance of Erica Procter and Michelle Keast. This research was sponsored by the Centre of Applied Research and Programme Development, John Howard Society of Ontario. The views expressed here reflect the views of the authors only. 2. See Bala (2003: 273), who comments extensively on the restrictions of alternative measures programs in practice during the YOA. 3. Section 3(1)(d) of the YOA stated, [W]here it is not inconsistent with the protection of the public, taking no measures or taking measures other than judicial proceedings should be considered for dealing with young persons who have committed offences. Section 4 stated that alternative measures may be used to deal with a young person alleged to have committed an offence instead of judicial proceedings under this act only if . . . (b) the person who is considering whether to use such measures is satisfied that they would be appropriate, having regard to the needs of the young person and the interests of society. 4. When police exercise a police-based diversion, they divert a youth by developing an option that is not considered a warning, caution, or referral to a program. One example is for the youth to paint a wall that the she or he had spray-painted. 5. Our question did not specify a specific time lapse between the old and the new offence. In formal criminal law there is judicial recognition of a gap effect where less weight is placed on past offending, depending upon the gap in time between two or more criminal acts committed (personal communication, Justice David Cole July 2007).

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6. The same principle of penal escalation has been discussed within the context of youth court (Harris, Weagant, Cole, and Weinper 2004).

References
Barnhorst, Richard 2004 Youth Criminal Justice Act: New directions and implementation issues. Canadian Journal of Criminology and Criminal Justice 46(3): 231250. Bala, Nicholas 2003 Youth Criminal Justice Law. Toronto: Irwin Law. Bell, Sandra J. 2007 Young Offenders and Youth Justice: A Century after the Fact. Toronto: Thomson Nelson. Carrington, Peter J. 1998 Factors affecting police diversion of young offenders: A statistical Analysis. Report of the Solicitor General, Canada. http://web. archive.org/web/20020213222733/http://www.sgc.gc.ca/epub/ pol/e199802/e199802.htm. Carrington, Peter J. and Jennifer L. Schulenberg 2004 Prior Police Contacts and Police Discretion with Apprehended Youth. Ottawa: Canadian Centre for Justice Statistics. Carrington, Peter J. and Jennifer L. Schulenberg 2005 Police decision-making with young offenders: Arrest, questioning, and dispositions. In Kathryn Campbell (ed.), Understanding Youth Justice in Canada. Toronto: Pearson Education. Doob, Anthony N. and Carla Cesaroni 2004 Responding to Youth Crime in Canada. Toronto: University of Toronto Press. Doob, Anthony N. and Janet Chan 1982 Factors affecting police decisions to take juveniles to court. Canadian Journal of Criminology and Criminal Justice 34(1): 3550. Harris, Peter, Brian Weagant, David Cole and Fern Weinper 2004 Working in the trenches with the YCJA. Canadian Journal of Criminology and Criminal Justice 46(3): 367389.

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Kowalski, Melanie 1999 Alternative Measures for Youth in Canada. Ottawa: Canadian Centre for Justice Statistics. Rubin, Herbert J. and Irene S. Rubin 1995 Qualitative Interviewing: The Art of Hearing Data. Thousand Oaks, CA: Sage.