Diversion – better than gaol?

No one would deny that crime is a serious problem in South Africa, particularly violent crime. Sadly, a life outside the law often takes hold at a young age. Young people from challenging home situations may join a gang, or wind up hanging out with another unsuitable group of friends, often older, because it gives them a sense of belonging and self-esteem they lack at home. Sometimes poverty, disadvantage and a sense of hopelessness about the future can drive youth to engage in crime as it may seem like the only alternative.

However it is important not to conflate poverty and crime; many young people from disadvantaged backgrounds live law-abiding lives and achieve great success in life. But the economic inequality in South Africa, while not entirely explaining our high crime rate, is a factor that cannot be ignored. One thing is clear: once a young person becomes part of the criminal fraternity it usually becomes a way of life. And it is well known that if an offender doesn’t enter prison as a hardened criminal, he will certainly exit as one.

Our prisons are designed to punish offenders and keep society safe. They are not designed to rehabilitate and educate. They are brutal places where the survival of the fittest holds sway. So, is there a better way?

Diversion – the alternative to imprisonment for young offenders

There is a movement away from imprisoning juveniles (individuals under the age of 18). The alternative programme is known as ‘diversion’, because those involved are diverted away from the criminal justice system. The programme is entirely voluntary and the young person has to consent to participation. If they do not, then the normal criminal justice process is followed.

Instead of going to prison, the young offender is offered a life skills programme and counselling. The family may also be involved. The ultimate goal of diversion is to encourage offenders to take responsibility for their actions and avoid re-offending. Diversion programmes are usually run by the provincial Department of Social Justice, or sometimes by NGOs.

What does diversion entail?

In the Western Cape, there are three levels of diversion. The level applied to the case will depend on the severity of the offence (and will also consider the age of the offender).

Level One Diversion

Level One Diversion is for less serious offences. It may involve:

• Written apologies
• Obligatory family time
• Counselling or therapy
• Symbolic restitution

Level One orders are put in place for a maximum of three months.

Level Two Diversion

Level Two Diversion includes all the activities specified in Level One Diversion, with the possible addition of:

• A maximum of 50 hours’ community service over six months
• Family group conferences
• Victim-offender mediation

Level Two orders may last for up to six months.

Level Three Diversion

Level Three Diversion is an intense programme, reflecting a serious offence, and is restricted to children over 14 years of age. It includes the following elements:

• A residential component
• Community service of up to 250 hours over the course of a year

How is diversion administered?

When a juvenile is arrested, a probation officer will assess the case. If the offender is considered a suitable candidate for diversion (he must consent willingly), the probation officer will make this recommendation at the preliminary enquiry. If the enquiry magistrate accepts the recommendation, the offender will be mandated to a diversion programme. The probation officer remains responsible for adherence to the programme and must advise the magistrate of any non-compliance.

Does it work?

More research is needed before the evidence base will be robust enough to categorically demonstrate the success of diversion over traditional criminal justice procedures, especially imprisonment. Diversion is not a soft option and does not aim to remove the accountability from the offender but rather to allow offenders to reconsider their life choices, before they are irretrievably committed to a criminal life.

Diversion does not result in a criminal record, which means that employment chances are not impacted, which can only be a positive outcome. The harder it is to secure a job, the more likely it is the young offender will turn into a serial offender.

Diversion is intended to provide society, and not just the offender, with a better solution to crime. It engages and considers the victims of crime in a way that conventional procedures do not. Diversion will only be excluded as an option if the interests of the criminal justice system and society are better served by prosecution and conviction (and potentially incarceration), for example in the case of sociopathic behaviour or complete absence of remorse.

SD Law & Associates – our view

At Cape Town Law Firm SD Law & Associates we think diversion represents a more humane and thoughtful response to juvenile crime and is a way of rehabilitating young offenders while they are at an influential stage of life. We’ve all made mistakes as young people; sometimes all that is needed is a second chance. It may be our best chance  to reduce the crime statistics for the next generation. If you have been arrested and need help, call Simon on 087 550 2740 (24/7) or email simon@sdlaw.co.za

Simon Dippenaar

http://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

View more posts from this author