Testimony of the New York Civil Liberties Union Before City Council Committee on Justice System and Committee on Juvenile Justice Regarding New York City’s Preparedness for Raise the Age Implementation

April 18, 2018

The New York Civil Liberties Union (NYCLU) respectfully submits the following testimony regarding New York City’s preparedness to implement state legislation to raise the age of criminal responsibility in New York. Our testimony today focuses on the prospect of using corrections officers employed by the New York City Department of Correction (DOC) to staff newly created specialized secure detention facilities for 16- and 17-year-olds.

  1. Introduction.

The NYCLU, an affiliate of the American Civil Liberties Union (ACLU), is a not-for-profit, non-partisan organization with eight offices throughout New York State and more than 200,000 members and supporters. The NYCLU’s mission is to promote and protect the fundamental rights, principles, and values embodied in the Bill of Rights of the U.S. Constitution and the New York Constitution.

Among our priorities is ensuring that youth who enter the justice system are treated in a manner that is humane, just, and age-appropriate. In a major class action lawsuit settled last summer, the NYCLU sued the Onondaga County Sheriff’s Office over its use of solitary confinement for 16- and 17-year-olds held in its adult county jail, and for denying them appropriate educational services and programming. Here in New York City, we have long demanded that the city improve its educational services and overall conditions for adolescents detained on Rikers Island, while further calling for the jail to be shut down completely.

In recent years, federal lawsuits and investigations have prompted some needed changes at Rikers, and the growing calls to amend and improve state law hold the potential for further reform. Significantly, the city jail put an end to the practice of using solitary confinement for those 21 years old or younger.[1] Moreover, under the new Raise the Age laws enacted by the state last year, the city is required to move all 16- and 17-year-olds off of Rikers and into facilities run by the New York City Administration for Children’s Services (ACS).[2] Removing the adolescent population from Rikers will be a major step forward in the process of closing the jail facilities on Rikers Island and in reforming New York’s juvenile justice system.

However, we are concerned that the city’s proposed plans to implement this first phase of Raise the Age will not accomplish the law’s intended goals and will fail to address the problems faced by youth at Rikers. Specifically, we are concerned that the city may replicate some of the worst problems of Rikers by using DOC corrections officers to operate the new facilities, rather than ACS employees who are trained to work with children. We urge the City Council to use its oversight powers to ensure that the vision of last year’s landmark Raise the Age legislation is not undermined.

  1. The culture of violence that persists at Rikers Island must not be replicated at new specialized detention facilities for adolescents.

The deplorable conditions and history of inhumane treatment of Rikers Island’s adolescents are well documented. Less than four years ago, an investigation by the U.S. Attorney’s Office for the Southern District of New York concluded that there was a “deep-seated culture of violence” at Rikers and a pattern and practice of conduct that violates the constitutional rights of adolescent held there.[3] The investigation found that force was used against adolescents at an alarming rate, including in response to mere verbal altercations, and that officers had inadequate training on managing adolescents in their custody.[4] The report came at a time when the city was already facing a lawsuit brought by incarcerated persons over the violent actions of corrections officers, which settled in 2015 with a number of agreed upon reforms, including multiple reforms specific to adolescents, and the appointment of a federal monitor.[5]

Yet, despite making significant changes to how adolescents are managed at Rikers, those changes have not halted the abusive practices of DOC staff, and Rikers remains a uniquely dangerous environment for young people. As documented by the court-appointed monitor overseeing the Rikers settlement, while overall use of force incidents against young people have decreased somewhat, DOC staff are still using force against adolescents and young adults at disproportionately high rates.[6] During the most recent year-long monitoring period, 16- and 17-year-olds comprised just 3.5% of the total population of persons held at Rikers, yet they were subject to 16% of uses of force reported by DOC officers.[7] The monitoring team was blunt in identifying the overall culture of violence among corrections officers at Rikers, writing: “The cultural dynamic that permeates so many encounters between Staff and inmates in DOC is quite simply a consequence of Staff actions and behaviors that too often engender, nurture, and encourage confrontation.”[8]

This history and culture of violence at Rikers, and the risk it poses to young people in particular, cannot be eliminated by a plan that would effectively relocate the same punitive carceral structure to a different location. State lawmakers understood this when they passed the Raise the Age legislation last year. The law mandates that by October 2018, all 16- and 17-year-olds must be moved off of Rikers and placed in specialized facilities certified by the Office of Children and Family Services (OCFS) and run by ACS, in conjunction with the city DOC.[9]

The plain language and obvious purpose of these provisions were to reduce the primary role that DOC corrections officers currently have in managing youth in custody and to move that authority to an agency expressly tasked with meeting the needs of children and adolescents. The city must not undermine the letter and spirit of Raise the Age by keeping DOC officers in charge of adolescents held in custody, and should explore all options to ensure that such children are served by a youth justice system that can meet their unique needs.

  1.  Adolescents in detention must be supervised by those who are specially trained and tasked with working with young people.

Our belief that adolescents in detention should be supervised by those specially tasked with working with youth is informed by prevailing scientific consensus on adolescent development, trends in the law, and our own experience representing and advocating for youth caught in the criminal justice system. The Supreme Court has, in several contexts, recognized the need to treat youth differently than adults.[10] Reflected in these legal precedents is the reality, supported by scientific research, that children have particular psychological vulnerabilities and a different capacity for decision-making that demand a unique approach in the realm of criminal justice.[11]

In the NYCLU’s case challenging the detention practices in Onondaga County, we saw firsthand the harms that arise when corrections officers who are trained to manage adults are charged with supervising adolescents. When being held at the county jail, our 16- and 17-year-old clients were placed in solitary confinement for up to 23 hours a day, provided essentially no educational instruction, and subjected to indignities such as being watched by corrections officers when showering and being placed in cells next to adults who were verbally threatening them.[12] We found that the Onondaga County Justice Center in Syracuse held approximately 30 juveniles, many of whom had disabilities. In granting a preliminary injunction halting use of solitary confinement in the jail, a U.S. District Court found substantial evidence that jail officials knew of, but chose to disregard, the risks that the practice posed to juvenile detainees.[13] The district court found that based on the medical and psychiatric expert affidavits that detailed the unique impact of the conditions on the juvenile detainees, the jail officials likely acted with deliberate indifference to the excessive risk posed to the juveniles’ health and safety.[14] The failure of corrections officers to appreciate the unique needs and vulnerabilities of adolescents led to unconscionable violations of their civil liberties.

These experiences further support the need to fully and meaningfully remove adolescents from the adult incarceration system they are subjected to at Rikers by ensuring that new facilities are not staffed by the DOC. Notwithstanding improvements in training and staff placements at Rikers Island’s youth facilities, a fundamental problem remains in having DOC corrections officers primarily tasked with guarding adults in charge of children. Serious reform of the treatment of youth in custody cannot happen by simply modifying what is, in core design and reality, a model of adult incarceration. The city must ensure that youth are served by staff that are suited to work with adolescents.

  1. Conclusion.

In order to fulfill the promise of Raise the Age, it is imperative that the city does all that it can to ensure that 16- and 17-year-olds are not just physically moved from Rikers Island, but that they are provided with a model of youth justice that responds to their needs. We are not unaware of the logistical hurdles that the city faces in implementing this first phase of Raise the Age. However, the bureaucratic difficulties of hiring and training new staff should not be an impediment to delaying needed reforms for New York City’s justice-involved youth.

We thank the committees for the opportunity to testify on these important matters, and ask again that the City Council do all that it can to ensure that specialized secure detention facilities are staffed by ACS employees trained to work with youth.


[1] Michael Winerip & Michael Schwirtz, Rikers to Ban Isolation for Inmates 21 and Younger, N.Y. Times (Jan. 13, 2015), https://www.nytimes.com/2015/01/14/nyregion/new-york-city-to-end-solitary-confinement-for-inmates-21-and-under-at-rikers.html.

[2] See N.Y. Correction Law § 500-P.

[3] Bharara, P., Samuels, J., Powell, J., & Daughtry, E., CRIPA Investigation of the New York Department of Correction Jails on Rikers Island, p. 3, U.S. Department of Justice, U.S. Attorney for the Southern District of New York (Aug. 4, 2014), available at https://www.justice.gov/sites/default/files/usao-sdny/legacy/2015/03/25/SDNY%20Rikers%20Report.pdf.

[4] Id. at p. 4.

[5] Michael Schwirtz, Judge Approves Settlement of Suit on Rikers Island Brutality, N.Y. Times (Oct. 21, 2015), https://www.nytimes.com/2015/10/22/nyregion/judge-approves-settlement-of-suit-on-rikers-island-brutality.html.

[6] The Nunez Monitoring Team, Fourth Report of the Nunez Independent Monitor, p. 205, available at https://www1.nyc.gov/assets/doc/downloads/pdf/Fourth_Report_Nunez_Independent_Monitor_10.10.17.pdf.

[7] Id. at 30.

[8] Id. at 7.

[9] Supra note 2.

[10] See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (holding that execution of individuals who were younger than 18 years old at the time of their capital crimes is unconstitutional); Graham v. Fla., 560 U.S. 48 (2010), as modified (July 6, 2010) (holding that life sentences for juveniles without parole for crimes other than homicide are unconstitutional) (“developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds”); J.D.B. v. North Carolina, 564 U.S. 261 (U.S. 2011) (holding that child’s age is relevant for Miranda analysis when known to an officer at the time of interrogation).

[11] See, e.g., Marsha Levick et al., The Eighth Amendment Evolves: Defining Cruel and Unusual Punishment through the Lens of Childhood & Adolescence, 15 U. Penn. J. of L. & Social Change 287, 293-98 (2012).

[12] Lawsuit: Syracuse Jail is Harming Children with Abusive Solitary Confinement Conditions, New York Civil Liberties (Sep. 21, 2016), https://www.nyclu.org/en/press-releases/lawsuit-syracuse-jail-harming-children-abusive-solitary-confinement-conditions.

[13] V.W. by & through Williams v. Conway, 236 F. Supp. 3d 554, 583 (N.D.N.Y. 2017).

[14] See V.W., at 19.

 

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