March 26, 2015 — Subject: Legislation to Raise the Age
New York State Executive Budget A.3006/S.2006 (Part J) Education, Labor, Housing & Family Assistance Article VII Legislation
Position: QUALIFIED SUPPORT
Subject: Legislation to Raise the Age – A. 6006 (Assembly Budget Legislation)
New York is only one of 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.
A Commission appointed by Governor Andrew Cuomo in 2014 issued a set of recommendations to “raise the age” of criminal responsibility. Those recommendations include a comprehensive set of reforms to accomplish this goal, from removing young people from adult facilities to creating support services designed to reduce recidivism and give young people who offend a second chance. Those recommendations were translated into legislation and appear in the executive budget proposal introduced by the legislature as Part J of A.3006/S.2006.
New York’s current juvenile and criminal justice systems fails to appreciate the cognitive and developmental differences of youth, and as a result nearly 50,000 16- and 17-year olds are prosecuted as adults every year.1 This legislative measure will initiate necessary and historic reform to New York’s family court, juvenile, and criminal justice systems by creating multi-faceted, rehabilitative interventions aimed at effectively responding to youth who engage in unlawful conduct, and addressing the unmet needs of youth and their communities.
The NYCLU gives qualified support to the important reforms contained in Part J, and urges lawmakers to adopt the legislation. Our support is qualified because the reforms do not “raise the age” as broadly as needed and the bill contains some gratuitous penalty enhancements that would harm a small number of juvenile offenders and should be removed from the legislation.
New York is one of only two states in the country that sets the age of criminal responsibility at age 16. 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.2 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.3 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 Order4 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. The New York State Assembly introduced its own version of Raise the Age legislation in its one-house budget proposal in March 2015. While we strongly support the Assembly’s proposal, this memorandum will focus on the Executive Budget proposal.
A Comprehensive Package of Juvenile Justice Reforms
The Governor’s Raise the Age legislation contains the following critical reforms:
- Raising the age of juvenile jurisdiction;
- Removing youth from adult jails and prisons;
- Improving arrest procedures and improving diversion services;
- Enhancing court processing of 16- and 17-year-olds;
- Creating effective disposition services and facilities;
- Facilitating re-entry to the community; and
- Addressing the collateral consequences of a criminal record.
Ten years ago, Connecticut and North Carolina were the two states along with New York that automatically prosecuted all 16- and 17-year-olds as adults. Both Connecticut and North Carolina created commissions to study raising the age of criminal responsibility and both commissions ultimately recommended raising the age. In 2007, Connecticut passed “Raise the Age” legislation similar to the legislation currently under consideration here in New York: comprehensive juvenile justice reforms, including significant investment in policies to further divert youth from court and confinement. As a result, Connecticut has seen a dramatic reduction in youth incarceration and youth crime since raising the age of juvenile jurisdiction, and saved million of dollars as a result.5 On the other hand, in North Carolina, the legislature failed to reach consensus on legislation in 2007 and nearly eight years later the state sees little political momentum to raise the age.
The time is now for New York State to raise the age of criminal responsibility in a comprehensive manner that provides young people with court processes, services, programs, and placement options that are developmentally appropriate, in the best interest of youth and their communities’ safety, and provides young people a real opportunity to overcome past mistakes.
1. Raising the Age of Juvenile Jurisdiction
Criminal justice processing of 16- and 17-year-olds generates a variety of negative effects, many of which are the result of New York’s statutory distinction that excludes these young people from a range of processes, programs, and services that are available in the juvenile or family court systems. Part J seeks to raise the age of criminal responsibility to 18, consistent with national norms and trends to bring the criminal justice response to young people in line with research about young offenders and the development of the adolescent brain. This measure includes a phased-in approach that will provide a year for implementation preparation, followed by raising the age of juvenile jurisdiction to 17 in 2017, then 18 in 2018.
Another fundamental change this measure will provide is raising the lower age of juvenile jurisdiction from 7 to 12, except for homicide offenses, which is raised to 10. Research shows that very young children lack the capacity to stand trial and have a limited ability to understand judicial proceedings. That is why most states do not automatically subject children as young as seven to criminal justice proceedings.6 New York, however, is one of four states to process children as young as seven-years-old or younger. By raising the lower age of juvenile jurisdiction and creating several other interventions and community based programs, the unmet needs of very young children can be addressed outside of the court system to reduce recidivism and improve future prospects.
2. Removing Young People from Adult Facilities
Every year approximately 4,700 16- and 17-year-olds are sentenced to confinement in adult prisons and jails.7 Research shows that youth incarcerated in adult facilities experience high suicide rates,8 increased recidivism,9 increased risk of sexual assault10 and abuse,11 and increased rates of solitary confinement.12 New York must end this destructive practice.
Although the Juvenile Justice and Delinquency Prevention Act prohibits the detention or confinement of juveniles in any institution where they have contact with adult inmates,13 it defines an adult inmate as “an individual who has reached the age of full criminal responsibility under applicable State law[.]”14 This means, under current New York law, 16- and 17-year-olds cannot be held in youth facilities. Hence, this measure’s provision to raise the age of juvenile jurisdiction to 18 is necessary to remove all adolescent offenders under age 18 from adult prisons and jails.
3. Improving Arrest Procedures and Diversion Services
The first stages of New York’s criminal justice processing creates a range of issues for 16- and 17-year-olds, including arrest without notification or guidance of a parent or caregiver, adult criminal court processing without opportunity for probation diversion, incarceration in adult facilities, and the potential for a lifelong criminal record. Part J provides several protections and services for young people during this precarious phase of the criminal justice process. By raising the age of criminal responsibility, 16- and 17-year-olds can benefit from automatic parental notification upon arrest, and a range of diversion interventions to avoid court involvement for low-risk youth or low-offense cases. These changes will have a positive effect on young people by expanding access to services that have been proven to work best with adolescents, as well as improving public safety in New York State and providing cost savings due to recidivism reductions.15
4. Enhancing Court Processing of 16- and 17-year-olds
Part J also seeks to significantly reduce the unnecessary incarceration of low-risk youth. The legislation would prohibit detention for first or second misdemeanor offenses or technical probation violations – which together account for over half of youth in the Office of Children and Family Services facilities.16 Additional provisions would significantly reduce the unnecessary, harmful and costly incarceration of youth by:
- expanding Family Court jurisdiction to handle non-violent felonies, misdemeanors, or harassment or disorderly conduct violations;
- broadening the categories of cases eligible for adjustment; and
- enhancing the range of diversion services available.
Together these changes can dramatically reduce recidivism, and have a positive preventive effect on youth and their communities.17
5. Creating Effective Disposition Services and Facilities
Creating effective, community-based interventions for 16- and 17- year-olds who are sentenced in adult criminal courts is critical to reducing the risks and addressing the needs presented by these young people. This measure enhances community-based supervision services provided by probation departments, like the Juvenile Risk Intervention Services Coordination (JRISC) program, which is designed to reduce recidivism among high-risk youth and, in turn, reduce the need for detention, placement, and incarceration. It also aims to improve the range of options for residential settings for youth who are ordered to out-of-home placement by the Family Court. These reforms will help address the specialized needs of young people by providing evidence-based, supportive services.
6. Facilitating Re-entry to the Community
There are no state policies or statutes in New York that require coordination of criminal or juvenile justice related services to facilitate community re-entry for young people. The legislation establishes a comprehensive risk assessment to inform the planning and placement processes; requires the Office of Children and Family Services to provide post-release supervision in order to better facilitate re-entry planning and implementation; requires a reasonable effort to establish a connection between youth and an adult in their community; instructs counties with high juvenile case volumes to develop a re-entry task force; and expands the availability of supportive housing for older youth who often lack housing stability. These reforms will improve the continuity of existing services and create opportunities for a young people to successfully return to their communities.
7. Addressing the Collateral Consequences of a Criminal Record
In New York, youth under 21 convicted in criminal court who do not benefit from Youthful Offender status at sentencing have no opportunities to seal or expunge their criminal record, which as a result haunt them for the rest of their lives. A lifelong criminal record can create significant barriers to employment, education, housing, public benefits, and immigration opportunities, preventing young people saddled with criminal records from becoming productive adults. This measure expands opportunities for young people to receive Youthful Offender status, creates several opportunities to seal convictions, and improves practices related to juvenile delinquency records to ensure accuracy with the maintenance and destruction of records. Implementation of these reforms will make New York a leader in juvenile justice reform, and provide young people a real opportunity to improve their lives.
Additional Reforms Needed
The Governor’s Part J proposal to Raise the Age would achieve significant reforms in the treatment of the vast majority of juveniles and would be a major step forward. But it is not the comprehensive reform that is needed. Indeed some provisions put young people in a worse position than they are today. Notwithstanding these concerns, the NYCLU supports the Governor’s bill and urges the legislature to refine this comprehensive reform by implementing the following measures:
1. Ensure That All Young People Benefit from a Sealed Juvenile Record
Under current law, a young person who is convicted of certain offenses may be eligible for “youthful offender” status, which means, among other things, that the individual cannot subsequently be treated as a predicate felon based on that conviction. The purpose of granting “youthful offender” status is to limit the life-long consequences of young person’s conviction. The Governor’s part J proposal would make a violent felony conviction for which a young person received “youthful offender” status a predicate felony and the individual would be treated as a predicate felon with regard to any subsequent violent felony offense. In other words, it would increase the life-long consequences of such a conviction notwithstanding a judge’s determination that the circumstances warranted granting “youthful offender” status thereby frustrating the purpose of the judge’s determination. Raise the Age reforms should at the very least do no harm. Accordingly, the NYCLU urges the legislature to, at minimum, strike this provision and maintain the status quo regarding youthful offender status
2. Ensure That Young People Have the Advantage of Indeterminate sentencing
Part J requires determinate sentencing for young people under Juvenile Offender or Youthful Offender statutes. Indeterminate sentences – prison terms that provide a range of time, like five to ten years, and eligibility for release on parole after a certain period – tend to reduce sentencing disparities among counties and allow offenders to reduce their time in jail through good behavior. On the other hand, determinate sentences mandate a specified term of incarceration and do not allow release prior to serving six-sevenths of the term. Determinate sentences can deter juveniles from exhibiting good behavior and participating in education and rehabilitation programs because, as opposed to indeterminate sentences, there is no prospect of parole.
3. Expand Discretion to Handle Cases in Family Court.
Part J restricts the rights that young people currently have to seek removal to Family Court before indictment; this right should be restored. The legislation does not include a rebuttable presumption to remove cases to Family Court involving 16- and 17-year-olds charged with robbery in the second degree or violent felonies, for example. The Governor’s Commission recommended that such a presumption should be included in any raise the age legislation, and we agree. Moreover, in our view, prosecutors should be able to rebut this presumption only upon a showing that it is in the interest of justice to retain the case in criminal court, based upon the factors set forth in state law.18 In addition, those interest-of-justice factors should be amended to include the following: (1) the age of the child; (2) the sophistication and maturity of the youth, as determined by consideration of his home and environmental situation, and his emotional, mental, and psychological capacity; (3) racial disparities in juvenile cases removed to Family Court; and (4) whether the youth can benefit from rehabilitative programs available in Family Court. These additional factors will ensure that removal procedures are fair and just for all children.
4. Require Videotaping of Custodial Interrogations of Young People Facing Felony Charges.
Teenagers are susceptible to coercive tactics used by prosecutors, which can lead to false confessions. Requiring that police and prosecutors videotape interrogations of 16- and 17-year-olds will improve the integrity of the interrogation process and ensure the reliability of confessions and incriminating statements. The Commission made this recommendation, and we agree. The legislature should immediately act to require videotaping of custodial interrogations of 16- and 17-year olds.
5. Require That Young People Charged with Non-violent Offenses Always be Tried in Courts Designed to Handle Young Offenders.
Part J provides that young people charged with some non-violent offenses, including vehicle and traffic law offenses, be tried in adult criminal court. NYCLU recommends that young people facing such charges be automatically tried in Youth Parts under the jurisdiction of the Family Court Act; and felony vehicular assaults should be referred to Youth Parts with criminal court jurisdiction.
6. Prohibit Adult Sentences for Young People.
Raising the age of criminal responsibility should mean that our criminal law recognizes that young people are categorically different than adults, and should never be treated as adults, no matter what the offense. Part J, however, allows courts to impose adult sentences on 16- and 17-year-olds for Class A felony offenses, and Class B violent felony offenses if a court finds aggravating circumstances present. Juveniles should not be subject to the same sentencing standards that apply to adults. The proposed amendment is particularly troubling in light of the Commission’s finding that there are drastic differences between adult and adolescent cognitive abilities, emotional maturity, capacity for self-regulation, decision making, and sensitivity to influence by peers.
Treating young people as adults is bad law, and bad public policy—for children, in particular, and for all of us. It creates unnecessary social and financial costs, and deprives young people of the opportunity to turn their lives around. Raising the age of criminal responsibility will enhance public safety, reduce recidivism, and, most importantly, provide necessary services that will produce better outcomes for New York’s youth. While raising the age of criminal responsibility to 18 will bring New York in line with national norms and practices, this comprehensive reform package will make New York a leader in several areas of juvenile justice reform. The NYCLU urges the legislature to enact Part J, as modified by the amendments proposed above.
1 The Center for Court Innovation, The Criminal Justice Response to 16- and 17-Year Old Defendants in New York, at 2 (2014), available at http://www.courtinnovation.org/sites/default/files/documents/ADP%20Y2%20....
2 S.B. 7397, 235th Leg., Reg. Sess. (N.Y. 2012).
3 S.B. 4489, 236th Leg., Reg. Sess. (N.Y. 2013); A.B. 7553, 236th Leg., Reg. Sess. (N.Y. 2013).
4 9 N.Y.C.R.R. 9A §§ 8.131 (McKinney 2015).
5 Justice Policy Institute, Juvenile Justice Reform in Connecticut: How Collaboration and Commitment Have Improved Public Safety and Outcomes for Youth, at 3 (2014), available at http://www.justicepolicy.org/uploads/justicepolicy/documents/jpi_juvenil....
6 Thomas Grisso, et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, Law and Human Behavior 27, no. 4 (2003): 333–63.
7 The Commission on Youth, Public Safety, & Justice, Final Report of the Governor’s Commission on Youth, Public Safety and Justice, at 44 (2015), available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/Repo... citing Unpublished data from SCOC Jail Management System 10/30/2014, NYC MOCJ 9/11/14, and New York State DOCCS 9/20/14.
8 Campaign for Youth Justice, Jailing Juveniles: Dangers of Incarcerating Youth in Adult Jails in America (2007), available at http://www.campaignforyouthjustice.org/Downloads/NationalReportsArticles....
9 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; National Campaign to Reform State Juvenile Justice Systems, The Fourth Wave: Juvenile Justice Reforms for the Twenty -First Century; (2012), available at http://www.publicinterestprojects.org/wp-content/uploads/2012/11/JJ-Whit... Design-Full-Final.pdf.
10 National Prison Rape Elimination Commission, Report 18 (June 2009), available at https://www.ncjrs.gov/pdffiles1/226680.pdf.
11 Jeffrey Fagen, Martin Forst & T. Scott Vivona, Youth in Prisons and Training Schools: Perceptions and Consequences of the Treatment-Custody Dichotomy, 40 Juv. & Fam. Ct. J. 1, (1989).
12 National Juvenile Justice Network, Keep Youth Out of Adult Prisons (2013), available at http://www.njjn.org/about-us/keep-youth-out-of-adult-prisons.
13 Juvenile Justice and Delinquency Prevention Act § 223(a)(12).
14 Id. § 103.
15 “Analysis completed by the Division of Criminal Justice Services for this Commission showed that implementation of a range of evidence-based interventions through probation diversion and probation supervision would also improve public safety across New York State. Implementation of a range of evidence-based programming as described in Chapter Two would likely result in between 1,500 and 2,400 fewer victimizations over a five-year period. This analysis also concluded that investment in these diversion programs is likely to recoup the cost of these programs within five years due to these recidivism reductions.” The Commission on Youth, Public Safety, & Justice, Final Report of the Governor’s Commission on Youth, Public Safety and Justice, at 44 (2015), supra note 7.
15 Id. at 96..
16 Id. at 114.
17 See N.Y. Criminal Procedure Law § 210.43.