Legislative Memo: Supporting Raising the Age of Criminal Responsibility

We urge those lawmakers and members of the executive who are seeking a consensus on legislation to raise the age using the following five principles as guideposts for reform:

• New York should not incarcerate young people in jail-like facilities.
• Youth who commit minor offenses and young children should be diverted from juvenile court and residential correction facilities.
• All youth should have a second chance to be free from the life-long consequences of a criminal record.
• New York should expand programs and services for youth in Family Court and Criminal Court.
• New York should not take any steps backward regarding youth justice.

Background

New York is one of only two states in the country that treats 16- and 17-year-olds like adults in its criminal justice system. New York is also one of only four states where children as young as seven face prosecution in juvenile courts. Each year, 4,700 young people are sentenced to time in adult prisons and jails; 16- and 17-year olds are all processed in adult criminal court instead of family court no matter how serious the offense.

The sense of urgency for reform in New York has steadily increased over the years because of extensive research demonstrating the significant negative impacts of incarcerating youth in adult jails and prisons, as well as successful reform experienced in other states like Connecticut and Illinois.

In 2012, Judge Jonathan Lippman, Chief Judge of New York’s Court of Appeals, issued a proposal to raise the age of criminal responsibility to 18 for youth who commit non-violent offenses, with those cases to be handled by a new Youth Part of the Supreme and County Courts.¹ The bill was criticized for its narrow scope and was ultimately not taken up by the legislature.

In 2013, Assembly Member Joseph Lentol and Senator Michael Nozzolio introduced bi-partisan legislation to raise the age of criminal responsibility to 18 for all youth, except those accused of the most serious offenses, and all cases except for the most serious offenses would be handled by the Family Court.² This bi-partisan measure met similar criticisms and shared the fate of the Lippman proposal.

Following these failed legislative efforts, in 2014, Governor Cuomo issued an Executive Order³ to establish the Commission on Youth, Public Safety and Justice, which he instructed to develop a concrete plan to raise the age of juvenile jurisdiction, and make other specific recommendations to improve New York’s juvenile and criminal justice systems. In January 2015, the Commission issued a comprehensive report with 38 recommendations that represent six fundamental changes to raise the age and improve the juvenile justice system.

These recommendations were subsequently translated into a legislative package in the Governor’s 2015 Budget proposal and introduced by the legislature as A.3006/S.2006. Shortly after, the New York State Assembly introduced its own version of Raise the Age legislation in its one-house budget proposal in March 2015. No legislative measures were passed during budget negotiations, but lawmakers agreed to allocate $135 million for raise the age reform in the 2015-16 New York state budget.

While several legislative proposals⁴ have been introduced since the final budget was enacted, the NYCLU believes that any legislation adopted by the New York State Legislature to raise the age of criminal responsibility must including these principles.

1. New York should not incarcerate young people in jail-like facilities.

Adolescents are still growing and developing and thus have an extraordinary capacity for rehabilitation and positive change. Incarcerating youth in jail-like facilities not only harms their healthy development,⁵ but also jeopardizes public safety.⁶ A recent report by the National Academies of Sciences concludes: “It is in society’s interest to reduce the likelihood of continued offending by providing developmentally appropriate interventions that are rooted in what is known about adolescent development.”⁷

The deplorable conditions of the adolescent facilities on Rikers Island attests, it is not enough to house youth separately from adults in “hybrid” facilities that are still part of the adult jail and prison system.⁸ Rather than incarcerating youth in facilities that closely resemble adult jails and prisons, New York should house youth in age-appropriate facilities.

Missouri’s juvenile corrections system presents an effective model for facilities that promote rehabilitation and positive youth outcomes.⁹ Any new youth facilities should be Missouri-like facilities: smaller facilities located near the youths’ homes and families; employing trained counselors; and a rigorous group treatment process offering extensive and ongoing individual attention.

2. Youth who commit minor offenses and young children should be diverted from juvenile court and residential correction facilities.

The state should expand the capacity for local law enforcement and probation departments to divert low-level cases from the juvenile justice system. Moreover, all children under age 12 should be diverted from the juvenile justice system, and instead should receive intervention and treatment services through the child welfare system.

Research shows that sending young people to juvenile detention centers or long-term confinement facilities further increases the likelihood of future involvement with the criminal justice system.¹⁰ Given the high costs of out-of-home placement, the state should reserve residential programs for young people who pose a risk to public safety.

Studies have demonstrated that the most effective response to minor adolescent misbehavior is to divert these cases from court involvement. In fact, one meta-analysis of forty-five diversion evaluation studies found that diversion is more effective in reducing recidivism than conventional judicial interventions.¹¹ Additionally, states that have implemented these reforms have experienced significant reductions in recidivism.

For instance, in 2005, Connecticut eliminated admission of youth to detention centers for status offenses and opened Family Support Centers statewide; as a result, the number of youth with a status offense who were rearrested or convicted of crimes fell by more than 70 percent.¹² New York should heed the lessons from these models and prohibit detention and out-of-home placement for youth adjudicated of non-violent misdemeanors or technical violations of probation.

3. All youth should have a second chance to be free from the life-long consequences of a criminal record.

The justice system should hold youth accountable for their crimes, but after young people pay the price for their crimes, they should have the opportunity to become law-abiding, contributing members of society. Young people with criminal convictions face enormous barriers to maintain stable and productive lives – including barriers to obtaining housing, employment, public benefits and education. The state must provide relief from the collateral consequences of an adult conviction by granting the capacity to seal convictions for crimes committed by those under age 21.

4. New York should expand programs and services for youth in Family Court and Criminal Court.

The state should provide dedicated funding to expand community-based, alternatives to detention that incorporate restorative justice, family support, vocational training and education and other evidence-driven and best practice models that have proven to reduce youth crime and recidivism.¹³ Additionally, the state should make these services available to youth regardless of the court of jurisdiction. A comprehensive range of interventions in New York will increase accountability measures that provide youth the opportunity to repair the harm they may have caused, which will improve public safety and reduce the need for more costly out-of-home placement.¹⁴

5. New York should not take any steps backward regarding youth justice. Scientific research on brain development is clear: young people’s brains are still developing until their mid-twenties and they are developmentally different adults.¹⁵ Therefore, New York should not introduce counterproductive and shortsighted policies that increase criminal penalties and punishments for crimes committed by youth under age 18. The state should not change the law to allow a youthful offender adjudication to be a predicate and should not expand the number of juvenile offender-eligible offenses.

1 S.B. 7397, 235th Leg., Reg. Sess. (N.Y. 2012).

2 S.B. 4489, 236th Leg., Reg. Sess. (N.Y. 2013); A.B. 7553, 236th Leg., Reg. Sess. (N.Y. 2013).

3 9 N.Y.C.R.R. 9A §§ 8.131 (McKinney 2015).

4 S.B. 5175, 238th Leg., Reg. Sess. (N.Y. 2015); S.B. 5642, 238th Leg., Reg. Sess. (N.Y. 2015); A.B. 7642, 238th Leg., Reg. Sess. (N.Y. 2015).

5 Richard J. Bonnie et al, Reforming Juvenile Justice: A Developmental Approach at 101-112 (2013) (summarizing scientific literature that suggests healthy adolescent development requires the presence of a parent or parent figure, inclusion in a positive peer group, and participation in activities that contribute to autonomous decision making and critical thinking).

6 See, e.g., Centers for Disease Control and Prevention, Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: Report on Recommendations of the Task Force on Community Preventive Services (2007), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm (finding higher recidivism rates in youth transferred to adult facilities).

7 Richard J. Bonnie et al, Reforming Juvenile Justice: A Developmental Approach 181 (2013).

8 Joel Rose, ‘Culture of Violence’ Pervades Rikers’ Juvenile Facilities, NPR, Oct. 15, 2014, available at http://www.npr.org/2014/10/15/356165968/culture-of-violence-pervades-rikers-juvenile-facilities.

9 The Commission on Youth, Public Safety, & Justice, Executive Summary of the Governor’s Commission on Youth, Public Safety and Justice, at 16 (2015), available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/ExecutiveSummaryofCommissiononYouthPublicSafetyandJusticeRecommendations.pdf.

10 National Campaign to Reform State Juvenile Justice Systems for Juvenile Justice, THE FOURTH WAVE: JUVENILE JUSTICE REFORMS FOR THE TWENTY -FIRST CENTURY 20 (2013).

11 Holly A. Wilson & Robert D. Hoge, THE EFFECT OF YOUTH DIVERSION PROGRAMS ON RECIDIVISM: A META-ANALYTIC REVIEW, 40 CRIM. JUST. & BEHAVIOR, No. 5, May 2013, at 497.

12 Justice Policy Institute, Juvenile Justice Reform in Connecticut: How Collaboration and Commitment Have Improved Public Safety and Outcomes for Youth, at 2 (2014), available at http://www.justicepolicy.org/uploads/justicepolicy/documents/jpi_juvenile_justice_reform_in_ct.pdf.

13 The Commission on Youth, Public Safety, & Justice, Final Report of the Governor’s Commission on Youth, Public Safety and Justice, at 49-54 (2015), available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/ReportofCommissiononYouthPublicSafetyandJustice_0.pdf

14 Richard J. Bonnie et al, Reforming Juvenile Justice: A Developmental Approach at 185-194 (2013) (summarizing the benefits of developmentally informed disciplinary interventions for young people).

15 See, e.g., MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, Issue Brief #3: Less Guilty by Reason of Adolescence (2003).