Police Discretion with Young Offenders
II. A Descriptive Profile
- 3.1 Frequency of use of informal action
- 3.2 Referrals to external agencies
- 3.3 Tracking of informal warnings
- 3.4 Use of informal and formal warnings with young persons
- 3.5 Other types of informal action
When officers decide not to lay (or recommend) a charge, or to recommend alternative measures, they have a choice among several kinds of informal action. They may give an informal or formal warning, involve the parents and/or social services, arrest and question the youth at the police station and release him or her, make a referral to a community-based intervention program, or simply take no action, except possibly to file an occurrence report (Bala et al., 1994a). According to Mueller and Heck (1997:116),
A number of criminologists (including Tittle, 1980; Braithwaite, 1989; Sampson and Laub, 1993) have argued that informal sanctions are more influential and cost-effective than formal sanctions that the police can muster in fighting juvenile crime.
Little is known about the use of informal action by police in Canada, or about their screening practices (Hackler & Don, 1990). According to some writers, young offenders are handled informally in circumstances involving less serious crime (Ericson & Haggerty, 1997; Meehan, 1993). There is evidence of less use of informal action since the inception of the YOA (see Section 1.2 above; Carrington 1999; Carrington & Moyer, 1994; Schissel, 1993). Informal warnings have been found to be used more frequently in rural areas or by school resource officers than by regular front-line officers (Hornick et al., 1996), raising the possibility that rural and Youth Officers may use this approach more with youth due to their familiarity with their 'clientele'.
British research suggests that the use of informal warnings is largely influenced by the administrative and ideological support within a department (Steer, 1970). Although formal, recorded warnings ("cautions") are used by police in other countries, there is no evidence in the literature that they are currently used in Canada, although caution letters issued by Crowns are used in some provinces as alternative measures (Engler & Crowe, 2000; Task Force, 1996). However, we did find evidence of the use of caution letters by some police services in Canada (see Section 3.4 below).
3.1.1 Statistical data
Statistical information on the use of informal action and pre-charge diversion by police is available from the Incident-Based Uniform Crime Reporting Survey ("UCR2"), maintained by the Canadian Centre for Justice Statistics. This survey, which operates in parallel with the UCR Survey, collects data on the characteristics of individual incidents, apprehended offenders, and victims of crime. Thus, it can provide data which are much more detailed than those available from the traditional, aggregate UCR Survey. Its drawback is that it is relatively recent, and some police services do not yet participate in it. Although it began operation in 1988, it did not achieve significant coverage of recorded crime in Canada until 1995, when it included 42% of all recorded incidents in Canada, and 50% of young persons charged (Canadian Centre for Justice Statistics, 2003). By 2001, it covered 59% of recorded incidents in Canada, and 71% of young persons charged (ibid.). For 2001, the UCR2 covers practically all of the Province of Quebec, much of Ontario (including the OPP and 13 independent municipal police services), and a small number of municipal services in each of the other provinces, except Prince Edward Island. Its major omission is the RCMP, which provides policing services to much of rural and small town Canada, and many larger centres, outside Ontario and Quebec; but many independent municipal police services are also missing. Therefore, distributions of variables in the UCR2 may not be representative of Canada as a whole (Canadian Centre for Justice Statistics, 2002a).
The detailed information in the UCR2 can provide a useful complement to the limited information available in the UCR Survey. The UCR2 records the "clearance status" of incidents. Incidents which are cleared (i.e., in which at least one chargeable suspect, or "accused", is identified), are classified as "cleared by charge" (at least one suspect in the incident has been charged) or "cleared otherwise". For incidents which are cleared otherwise, the reason given by police for not charging any suspects is classified under several headings, which are shown in Table II.3.
Cleared by charge
No charges laid, for reasons beyond the control of the police department
- Suicide of the accused
- Death of the accused (other than suicide)
- Death of a key witness/complainant
- Extra-departmental policy (e.g. a directive from the Attorney General)
- Diplomatic immunity of the accused
- Accused is less than 12 years old
- Accused is committed to a mental hospital
- Accused is in a foreign country and cannot be returned
No charges laid, police discretion (police could lay a charge but decide not to)
- Complainant declines to lay charges (i.e. to cooperate with police)
- The accused has been charged in other incidents
- The accused is already serving a sentence in a correctional facility
- Other discretionary reasons
- The accused is being diverted into a (pre-charge) alternative measures program
Source: Canadian Centre for Justice Statistics, 2002b.
We grouped these clearance statuses into four categories:
- 1) cleared by charge,
- 2) no charges laid due to reasons beyond the control of the department,
- 3) no charges laid due to informal action (all "discretionary" reasons except diversion), and
- 4) no charges laid due to diversion of the accused to alternative measures.
Figure II.5 shows the breakdown of clearance statuses of incidents involving at least one apprehended young person, for all respondents to the UCR2 in 2001.
The proportion of incidents cleared by charge is 74%, which is much higher than the proportion of apprehended youths who were charged in Canada in 2000 (59%), according to the UCR Survey (Figure II.2). There are several possible reasons for this discrepancy. One is the omission of the RCMP and other police services which tend to use charges less than the police services included in the UCR2 (see Section 1.2.2). Second, many incidents involving young persons include more than one accused (Carrington, 2002), and if any one of the co-accused is charged, then the incident is classified as "cleared by charge": e.g. if there were two co-accused and one was charged and one was not, this would contribute a count of one incident "cleared by charge" to the UCR2 clearance status variable, but counts of one accused charged and one accused not charged to the "charge status" variable from which we computed that 59% of apprehended youth were charged in 2000. Third, some of the incidents captured in Figure II.5 include adult co-offenders as well as young persons, and adults are more likely to be charged than young persons (Carrington, 2002) - and if any co-offender in the incident is charged, then the incident is classified as "cleared by charge".
The fact that only 2% of all incidents, or 8% of incidents "cleared otherwise", involved
"reasons beyond the control of the department" confirms that it is reasonable when analyzing data from the aggregate UCR Survey to use the variable
"proportion of apprehended youth not charged" as an indicator of the use of police discretion (as in Section 1.2.1 above). If a large proportion of incidents which were "cleared otherwise" involved reasons which were beyond the control of police, then "not charging" would not be a good indication of the exercise of police discretion.
Of the 24% of youth-related incidents which were cleared without charge due to police discretion, one-third were diverted to alternative measures, and two-thirds were cleared by informal action. This underestimates theproportion of apprehended youthsdealt with by informal measures and informally, because, for the many incidents in which more than one person was apprehended, the incident is classified according to the most serious "police disposition". Therefore, if one co-offender is charged, and others are diverted or dealt with informally, the incident is classified as "cleared by charge"; or, if none is charged but one youth is diverted to alternative measures and others are dealt with informally, then the incident is classified as "cleared otherwise: diversion".
Source: Incident-Based UCR Survey, Trend Database, 1995-2001.
Figure II.6 shows the trend since 1995 in the clearance status of youth-related incidents recorded in a sub-sample of police services reporting to the UCR2 . There is no trend over time: the proportion of incidents cleared by charge fluctuates around 68-70%, and the proportions of incidents cleared by informal action and by alternative measures fluctuate around 20-22% and 7% respectively . The overall proportion of incidents cleared by charge is lower than in Figure II.5, and closer to the proportions of apprehended youth charged shown in Figures II.3 and II.4, because some of the police services which are included in the data shown in Figure II.5, notably the OPP, have relatively high proportions of youth charged and of youth-related incidents cleared by charge (see Section 1.2.2 above).
Figure II.7 shows the clearance status of youth-related incidents in police services reporting to the UCR2 in five provinces. The number of police services is shown in parentheses after the name of the province. As in Figure II.5, the proportion of incidents classified as cleared by charge is higher in each province than the proportion of young persons charged in the UCR (Table II.1 above); the reasons for this are discussed above.
Source: Incident-Based UCR Survey, 2001.
Note: So few police services in Newfoundland, Nova Scotia, Manitoba, and British Columbia reported to the UCR2 in 2001 that it would be misleading to include them in this analysis.
Proportions of incidents cleared by informal action vary from 12% in Alberta (where only four police services report to the UCR2) to 25% in Quebec. It is noteworthy that, although police services in Ontario which reported to the UCR2 in 2001 had a relatively high overall charge rate (80% of youth-related incidents were cleared by charge; cf. Figure II.3 and Table II.1, above), this appears to be entirely due to the unavailability of pre-charge alternative measures; their rate of clearance of youth-related incidents by informal action (19%) is exceeded only by that of police services in the province of Quebec. Similarly, the even higher overall charge rate of the four respondents in Saskatchewan (83%) is primarily due to the minimal use of pre-charge AM: their rate of informal action (14%) is no lower than that in New Brunswick and Alberta.
We asked officers about the extent to which their police service used informal action with young offenders, and classified their answers into four categories. Always was used when officers indicated they always consider using informal action in virtually any situation. This is not to say that they do not ultimately proceed by way of charge. There are some circumstances where sufficient evidence exists to proceed on several charges; however, the officer considers dealing with some or all of them informally if possible. Usually refers to officers that indicated they consider informal action in most cases; however, they offered qualifications to explain their decision-making. For example, an officer might not consider using discretion with charges against the administration of justice, serious offences or with a youth who has an extensive prior record. Occasionally means that officers consider informal action only for minor or very minor offences such as shoplifting or mischief. Never indicates the responding officer will consider only a charge or alternative measures. These officers felt either that choosing informal action was not their prerogative, or had concerns regarding liability (e.g. from a supervisor questioning their judgment). Figure II.8 summarizes the distribution of our sample in terms of the frequency with which officers from our sampled police agencies told us they use informal action.
Over three-quarters (78%) of the police services in our sample indicated that they would usually or always consider using informal action with young persons. Only 22% of the police services indicated they never or occasionally consider using informal action. Their responses differed by type of police, type of community, province/territory, and location of service.
Provincial police forces (76%) are more likely "usually" to consider using informal action with young persons when compared to independent municipal police agencies (43%). When looking at the range of responses, independent municipal forces are distributed more widely over the range, "never" to "always" (e.g. 30% answered "occasionally"); whereas, the RCMP and OPP detachments are clustered in the "usually" to "always" categories.
Looking at the use of informal action by type of community, two interesting response patterns are evident. First, there is virtually no difference by type of community when looking at the services that "usually" consider using informal action with young persons. However, a significant proportion of suburban/exurban services (41%) "never" or "occasionally" consider using informal action; compared with only 17% of metropolitan forces and 19% of rural/small town forces. To put it differently, metropolitan (83%) and rural/small town forces (81%) were much more likely than suburban/exurban forces to consider using informal action "usually" or "always".
In all regions of Canada, the majority of police services in the sample "usually" consider using informal action with young offenders. This is the case for 100% of the detachments located within the Territories.
The literature suggests that Youth Officers may divert more youth due to an increased familiarity with their clientele. However, up until now there has been very little research to support this supposition, and it was done when the Juvenile Delinquents Act was in effect (Doob, 1983; Leeson & Snyder, 1981). Three-quarters (75%) of the officers working in a Youth Squad or assigned as School Liaison Officers told us they "usually" or "always" consider informal action. In contrast, 59% of the officers from all other locations of service (e.g. patrol, GIS, management) consider using informal action "usually" or "always". Therefore, our data do suggest that Youth Squads and SLO's are more likely to consistently consider informal action as a legitimate method of dealing with youth-related incidents. The role of specialized youth officers is considered in more depth in Chapter IV, Section 4.
Almost two-thirds (62%) of the police forces in our sample make referrals to external agencies for minor and serious offences. These referrals are predominantly to social service agencies, and, in Quebec, to La Direction de la Protection de la Jeunesse (DPJ). However, there are some differences in response patterns by type of police agency and province/territory.
Almost two-thirds (64%) of provincial police detachments indicated that they "never" refer young persons to external agencies compared to 18% of municipal independent police forces. This difference may be the result of a lower availability of external resources in the areas in which provincial detachments operate. We can explore this possibility by examining the distribution by type of community and by province and territory. Officers in 43% of suburban/exurban police forces or detachments, and in 49% of rural/small town services, reported that they are never able to make referrals to external agencies, compared to only 23% of metropolitan area police agencies. In Quebec, all of the police agencies in our sample reported making referrals to external agencies (primarily the DPJ). Similarly, over half of the agencies in the Prairies and the Atlantic region make referrals for minor and serious offences. However, in British Columbia and Ontario, in which most of our rural/small town agencies are located, a larger proportion of agencies report they make no referrals or only for minor offences. Most strikingly, in the Territories, 71% of the detachments interviewed are not able to make any referrals to external agencies due to a lack of community and social service resources in their jurisdictions.
This is a theme which came up repeatedly during the interviews, and which will recur under various headings in this report. When police are dealing with a youth and an offence which, in their view, require a more effective intervention than mere "informal action", but they are reluctant to invoke the heavy hand of the law by laying a charge, then referral to a program or agency, either informally or through Alternative Measures, is an attractive "intermediate sanction". However, in a great number of cases, such an alternative is not available, and police must resort to laying a charge. This issue is explored in more depth in Chapter III, Section 3, "External resources".
There is a great degree of variation across the country in how often police officers' use of informal action is documented within their record management systems (RMS). Rarely denotes agencies that do not record informal action except in some rare circumstances where the officer feels it is crucial. This may be the result of management and supervisors creating a somewhat unsupportive environment for informal action, or, in the case of Quebec, where the alternative measures system is highly effective. Sometimes refers to agencies where informal warnings do not consistently enter the RMS. Usually refers to agencies where it is expected that officers enter informal warnings and they felt confident that it usually occurred. Always indicates those police agencies where they consider it mandatory to create a record of all interactions with youth. Finally, officer dependent codes the answer,
"as long as the officer entered it". This
category was created as some officers indicated their police agency would fall under the "always" category; however, the policy directive or unwritten rule that all informal action is documented is not always followed. For example, if an officer comes across a minor incident in the field, he or she may not create a contact entry in the RMS. Several officers argue that as soon as you make a notation into the RMS, the action taken by the officer is no longer informal as a record has been created. Others suggested that, due to time constraints, they are not always able to enter everything in the RMS.
A large proportion of our interviewees suggested that the recording of informal action follows one of two typical scenarios. The first is when an incident is reported by a member of the public. In this situation a notation is almost always made in the RMS. The second category refers to informal action taken by officers when they come across a young person in the field. It is in those circumstances that there may or may not be an entry made into the RMS. Figure II.9 illustrates this variation by police agency.
Just over two-thirds (67%) of the agencies in our sample reported that they "usually" or "always" record informal action in the RMS. 7% indicated it is dependent on the individual officer. However, the frequency in which officers record informal warnings varies by police agency type, type of community, and province/territory.
Provincial police forces (70%) are much more likely to record their use of informal action in the RMS. Among independent municipal forces, the range varies from "rarely" to "always" with 10% indicating that they never record informal warnings in the RMS. Just under half of metropolitan (43%) and suburban/exurban (47%) police agencies reported that they "always" record informal action. However, there was slightly more variation in recording practices for rural/small town police agencies where 33% reported they usually record informal action. The majority of agencies in Canada reported they "always" record informal warnings and action. However, 38% of those in our sample from the Prairies stated they "sometimes" record informal action.
Evidently, there is much room for expansion in the tracking of informal warnings; but by its very nature, some informal action - perhaps much of it - will always go unrecorded.
Informal warnings generally involve a police officer discussing the young person's behaviour with him or her and the parents, warning them that further law-breaking will result in formal action. As a textbook for law enforcement students puts it,
"It is not unusual for an officer to give a stern lecture or a warning to a juvenile, advising of the possible consequences if arrested" (Dantzker & Mitchell, 1998: 59). As previously mentioned, whether this informal warning is documented varies considerably.
A "formal" warning, as the phrase is understood by our respondents, usually involves a police officer entering the incident in the RMS, or even occasionally having a letter issued to the youth and the parents which alleges the criminal behaviour and the issuance of a warning by police (or by the Crown, on the recommendation of police).
The vast majority of police agencies (93%) in our sample indicated that they use informal warnings with young persons. In addition, 32% of our sample told us they did use some form of a formal warning. However, the nature of the formal warning varies considerably between the agencies that answered in the affirmative. For example, in one Ontario police force the youth squad issues the letters and has the young person and parents (or legal guardian) sign the document as well. In other jurisdictions the police will recommend to the Crown to issue a caution letter. Others will make extensive notations in their RMS.
There are some variations by province and territory in terms of the use of informal and formal warnings. In Quebec, 25% of the agencies in our sample did not indicate to us that they used informal warnings with young persons. The numbers for the other regions in Canada ranged from 0% to 9%. Perhaps this is evidence of net-widening in Quebec: the extensive use of alternative measures may mitigate against other forms of informal police action.
Formal warnings tend to be used in the Prairies, the Atlantic region and the Territories. 92% of the agencies in British Columbia and 88% of the agencies interviewed in Quebec do not use formal warnings. However, the figure for British Columbia should be interpreted with caution as the Crown Attorneys frequently issue Crown cautions. The reason this does not appear in our data is that officers in British Columbia say they rarely have any feedback on Crown decision-making; consequently, they do not know how often a Crown caution letter is issued. For Quebec, the low usage of formal warnings is consistent with the lesser use of informal warnings than the rest of Canada.
Apparently there is considerable variation across the country, and even within individual police agencies, in the understanding of what constitutes an informal or formal warning. If these forms of informal action are going to be recorded and monitored - e.g. in the UCR2 Survey, it will require a substantial effort - involving education and persuasion - to achieve consistency across the country in their operational definitions.
Figure II.10 shows several other types of informal action that officers use when dealing with youth-related incidents (percentages add to more than 100% since multiple answers were permitted).
The majority of police agencies (91%) consider parental involvement mandatory when dealing informally with youth-related incidents informally. Many officers suggest that the effectiveness of informal action is highly dependent on parental involvement. An officer in Ontario told us,
"I place a lot of weight on the parents' input and it's not only getting the young offender on board, it's getting his parent or parents on board". On many occasions officers indicated that they are better able to assess the situation due to the input of first hand knowledge from the parent(s). In some cases, officers indicated it can have a large impact on their decision-making process if they feel that the young person will face a consequence for their behaviour at home. If an officer feels that the young person's behaviour will be dealt with by Mom or Dad, he or she feels much more comfortable not laying charges or referring to alternative measures:
"Occasionally, the best punishment an officer can provide is to take the juvenile home and release him or her into the custody of the parents" (Dantzker & Mitchell, 1998: 59).
Three-quarters (75%) of the police agencies indicated they will take the young person home, or if absolutely unavoidable, to the police station in order to have the parents take care and control over the young person. In the majority of cases, they deliver the young person directly home. However, in some jurisdictions they may bring the young person to the station as a "higher consequence" (i.e. a more severe sanction), as it inconveniences the parents to have to come to the police station to pick up their child. Further, several officers indicated that having the parents pick the youth up at a police station reinforces the message that the behaviour was criminal and needs to be treated as such, even though they are not proceeding by way of charge or alternative measures:
"If the officer wishes to emphasize the situation, the juvenile is taken to police headquarters and, when it exists, to the Juvenile Unit where the releaserequires no further action" (Dantzker &
Mitchell, 1998: 59). These officers suggest that having the parents come to the police station make them more accountable. They also noted it is much easier to make referrals when the parents and the young person are at the police station.
Despite most officers indicating that they try to avoid bringing a young person with whom they intend to use informal action to a police station for any reason, 27% of the police forces and agencies indicated that they bring a youth to the police station for questioning even if they know they will be dealing with the incident informally. This practice is especially prevalent in Ontario, and especially among independent municipal police forces, rather than the OPP. In Quebec, none of the agencies in our sample reported bringing a youth back to the station for questioning, in the context of informal action. However, it must be remembered that the police agencies in Quebec which we interviewed rarely mentioned using informal or formal warnings.
Finally, a small proportion of police agencies (6%) refer youths internally to a police-run diversion program. These are all independent municipal police forces. Perhaps it is noteworthy that agencies policing aboriginal peoples are no more or less likely to use informal action than those who do not.
- The police services participating in the UCR2 Survey change each year as new forces join the Survey, and occassionally, a police service leaves the Survey. In order to have comparable data over time, we used the "UCR2 Trend Database", which is restricted to police services which reported continously to the UCR2 from 1995 to 2001. Coverage of this sub-sample is approximately 42% of recorded incidents, and 50% of young persons charged, in Canada.
-  Referral to alternative measures and informal action were not distinguished before 1997.
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