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AGLO 1982 No. 16 - June 23, 1982
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

JUVENILES ‑- COURTS ‑- DIVERSION OF JUVENILE OFFENDERS

The only diversion procedures for juvenile offenders which may be said either to be authorized by, or consistent with, the provisions of the Juvenile Justice Act of 1977 (as amended) are those procedures outlined in RCW 13.40.080 and, in turn, described by this office in AGO 1978 No. 30.

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                                                                   June 23, 1982

Honorable Phil Talmadge
St. Sen., 34th District
4006 53rd S.W.
Seattle, WA 98116                                                                                                               Cite as:  AGLO 1982 No. 16

Dear Senator Talmadge:

            Thank you for your clarifying letter of June 4, 1982.  Your question, as stated therein, reads:

            "Is the practice of direct police referral of minor juvenile offenders to service agencies without meeting the requirements of diversion under the Juvenile Code authorized by or consistent with any provision of that Code?"

            We respond as follows.

                                                                     ANALYSIS

            Your reference to the Juvenile Code is, as we understand it, a reference to the Juvenile Justice Act of 1977 (chapter 291, Laws of 1977, 1st Ex. Sess.).  That act, together with subsequent amendments, is now codified in chapter 13.40 RCW.

            The process of diversion, under the act, is a formally authorized alternative to prosecution.  It involves a voluntary agreement between an alleged juvenile offender and a diversion unit which ". . . may be entered into only after the prosecutor, or  [[Orig. Op. Page 2]] probation counselor pursuant to this chapter, has determined that probable cause exists to believe that a crime has been committed and that the juvenile committed it."  RCW 13.40.080(1).  A "diversion unit" is a court appointed entity defined in RCW 13.40.020(8) as follows:

            "'Diversion unit' means any probation counselor who enters into a diversion agreement with an alleged youthful offender or any other person or entity with whom the juvenile court administrator has contracted to arrange and supervise such agreements pursuant to RCW 13.04.040, as now or hereafter amended, or any person or entity specially funded by the legislature to arrange and supervise diversion agreements in accordance with the requirements of this chapter. . . ."

            In AGO 1978 No. 30, copy enclosed, we analyzed these provisions of the Juvenile Justice Act and described their operation in some detail.  We then concluded, in response to the specific question there posed, as follows:

            "Where an information charging criminal conduct by a juvenile offender has been properly filed by the prosecuting attorney as authorized under RCW 13.40.070, is the superior court nevertheless authorized then to declare the accused eligible to enter into a diversion agreement pursuant to RCW 13.40.080 rather than adjudicating his or her innocence or guilt?"

            Likewise, in response to your present question (as above stated), it similarly follows that the only diversion procedures for juvenile offenders which may be said either to be authorized by, or consistent with, the provisions of the Juvenile Justice Act of 1977 are those procedures outlined in RCW 13.40.080 and, in turn, described by this office in AGO 1978 No. 30,supra.  In essense [essence], the legislature has placed the discretion in the prosecutor‑-not the courts or the police.1/

             [[Orig. Op. Page 3]]

            It is hoped that the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/This is consistent with the approach toward "charging," generally, in Washington's criminal justice system and conforms with the approach in most other U.S. jurisdictions.   See Miller,Prosecution:  The Decision to Charge a Suspect with a Crime, (1979) at pp. 9 and 10.

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