Keeping Kids Out of Court: Prosecutorial Discretion and the Trauma of Juvenile Court Referral

From the Abstract:

This Article will examine the critical role of pre-court diversion in the juvenile justice system and the traumatic impact that formal court referral has on children. Although juvenile proceedings are often described as rehabilitative rather than punitive, the act of being referred to court itself can produce lasting harm. Children who must appear in court—even before a for-mal adjudication—experience significant stress, shame, and fear, which can compound preexisting trauma and undermine healthy development. For children already facing instability at home or school, the courtroom environment can become another site of retraumatization rather than support.

At the center of this problem is prosecutorial discretion in determining whether a child is referred to court or diverted into alternative programs. Across the United States, prosecutors exercise wide latitude at this critical stage, yet the scope and limits of their discretion vary considerably by state. Some jurisdictions give prosecutors broad authority to divert youth away from formal proceedings, while others provide broad discretion to refer youth to court. This variation has profound consequences for children, since the decision to refer or divert determines whether a child encounters the trauma of court involvement at all.

This Article will analyze the ways in which referral to court exacerbates trauma in children and consider empirical evidence linking diversion to better long-term outcomes. It will describe various state statutes that serve to limit prosecutorial discretion in different ways. Ultimately, this Article will argue that the best path forward is to design legal frameworks that prioritize keeping children out of court. Whether by limiting prosecutorial discretion to refer cases into the system or by expanding discretion to allow more cases to remain in diversion, reforms should be structured with the understanding that minimizing court involvement is most consistent with children’s well-being. In doing so, the Article aims to highlight how early legal decision-making can either perpetuate or prevent cycles of harm.