In 1899 the State of Illinois established the nation’s first juvenile court. Illinois thereby eliminated the criminal prosecution, conviction, and incarceration of children, substituting the goals of rehabilitation and amelioration.1 The court was quickly replicated throughout the country, and by 1925 46 of the 48 states, including New York, had established separate tribunals devoted to children’s cases. Virtually every state initially restricted the court’s jurisdiction to children less than 16 years of age. However, the overwhelming majority increased the juvenile delinquency jurisdictional age in the decades immediately following enactment. Today, in 48 states a child who is 16 years of age will be adjudicated in a juvenile or family court, and in most states a child of 17 will be similarly adjudicated (although children who have committed very violent offenses may be “waived” to the adult criminal courts). Only two states, New York and North Carolina, adhere to the early 20th century age limitation.

In the past two years legislative initiatives to join the overwhelming national consensus have been advanced in both New York and North Carolina. The momentum for change has been bolstered by recent neurological brain imaging studies proving that the older adolescent’s brain has not fully matured (particularly those areas that govern judgment and impulse),2 and also the sharply decreasing adolescent crime rate.3 In early 2012 two “competing” bills were introduced in New York: the “Assembly Leadership Bill” and the “Sentencing Commission Bill,” introduced at the request of Chief Judge Jonathan Lippman, who has been a strong advocate for raising New York’s age. Neither passed, but the proposals have generated widespread discussion and debate. The issue is likely to be seriously debated in the coming months and considered during the 2013 legislative session.

This article will outline and discuss the salient provisions which are incorporated in the two pending bills, commencing with the “Assembly Leadership” proposal. I shall also attempt to “bridge” the proposals, hopefully encouraging the enactment of an equitable and feasible measure.

Assembly Leadership Bill

The Assembly Leadership Bill would raise the age of criminal responsibility to 18 and simultaneously raise the age of Family Court jurisdiction. Every juvenile delinquency case would be initiated in the Family Court, and every Family Court Act provision would apply, from arrest to disposition. A 17-year-old accused of larceny would be treated identically as a 14- year-old accused of committing the same crime. Every alleged offense, from a minor traffic violation to a homicide case, would originate in Family Court.

The bill would also repeal the current Juvenile Offender Act, whereby 13-year-old children who are charged with murder and 14- and 15-year-old children accused of very violent offenses, such as first-degree robbery, are automatically prosecuted in the criminal courts (although the case may be subsequently “removed” to Family Court). Instead, those cases could be “transferred” from the Family Court to the Criminal Court after a hearing to determine the appropriate forum. Enacted in 1978, the Juvenile Offender Law is unique—no other state has enacted a similar measure. Nationally, every state except New York uses a “transfer” procedure to provide the alternative of criminal prosecuting and sentencing for adolescents who have been charged with extremely violent crimes (the exact age requirements, crimes, and procedures vary by state).

The Assembly Leadership Bill thus adopts the national model (although by including traffic offenses it exceeds the national norm—no other state includes those minor offenses). In a large sense, it represents a “purist” approach. The great disadvantage is its impracticality. The Family Court is overburdened as it is. Substantial new resources, judicial and non-judicial, would have to be allocated, either by transferring judges, staff and legal services (and the Family Court burden would be partially compensated by decreasing the caseload of the criminal courts), or by new appropriations, or both. The bill also poses political problems, particularly in the era of the government’s reduced fiscal capacity.

Sentencing Commission Bill

The Sentencing Commission Bill has been aptly referred to, by the commission itself, as a “hybrid” approach, one intended as a first step on the road to implementing a “raise the age” initiative. Jurisdiction would remain vested exclusively in the criminal courts, which would establish statutorily authorized “youth parts” to hear and determine criminal actions involving 16- and 17-year-old defendants. Unlike the Leadership Bill, the extreme ends of the penal law spectrum would be excluded; violent felony offenses would be heard in the regular parts of the superior criminal courts while traffic and other petty offenses would continue to be adjudicated by the local courts.

Under the proposal, the “youth parts” would be governed by a new code forged largely from the Criminal Procedure Law and the Family Court Act. The probation service would be granted the authority to “adjust” cases, a power which it has long exercised in Family Court. Of greater significance, the youth part dispositional structure would be similar to Family Court, i.e., a “convicted” youth (and criminal terminology rather than Family Court terminology is used throughout) would be deemed to be a juvenile delinquent with the same array of dispositional alternatives available, such as probation supervision or non-secure placement.

The advantage of the Sentencing Commission Bill is that it grants several “juvenile delinquency rights” to the 16- and 17-year-old age group, with only minimal disruption to the existing structure. Family Court would not be further burdened—instead, it would be bypassed. To a large degree the proposal is strikingly similar to the pre-1922 era, when the criminal courts maintained “children’s parts” to adjudicate offenses involving children under the age of 16.4 Eventually, the children court parts were separated from the criminal courts, forming the 1922 New York State Children Court. The sponsors’ intention is that the same will ultimately occur if their bill is enacted.

Integration

Clearly, the full integration of expanded age jurisdiction will be a lengthy process—in fact, every state that has raised the age in recent years has enacted a phased implementation schedule. However, a temporary measure that retains criminal court jurisdiction, with a combined complex application of provisions found in the Family Court Act and Criminal Procedure Law is unnecessarily complicated (interpreting the new “hybrid” code well could entail years of litigation), and compromise the goal of treating adolescents as delinquents rather than criminal defendants. In my opinion, there is a better way, one that would merge the competing bills and authorize full integration within the Family Court without creating a new structure or the necessity for further legislation. The age should be raised, perhaps in stages, and special Family Court parts should be authorized to be housed where necessary in criminal court courthouses (and staffed by criminal court personnel), with the objective of gradually integrating the “adolescent” parts into the Family Court itself.

The criminal court “youth parts” proposed by the Sentencing Commission would instead be designated as “Special Family Court parts,” and the Family Court Act would be applied throughout, from a case’s inception to its disposition. In fact, the perception that an amalgam of the two codes is necessary is erroneous. Family Court Act Article 3, which governs juvenile delinquency cases, already incorporates a huge array of CPL provisions, ranging from arraignment and motion practice to pleas and post-dispositional procedures. Parity is already required, thanks to the “equal protection” clauses of the federal and state constitutions.

Further, integration within the Family Court itself is more readily achievable than many believe. In half the state’s counties, 30 to be exact, the Family Court judge is also the County Court judge (the so-called “two-hat” judge). In those counties, Family Court and criminal County Court cases are heard in the same courtroom, are conducted by the same judge, and are administered by the same court staff. Juvenile delinquency and “adolescent” criminal cases are currently heard in tandem on a daily basis. “Raising the age” in half the state (geographically) could be implemented immediately and seamlessly.

In other counties, the County Court is housed in the same building and operates in close proximity to Family Court. For example, in Westchester, Family Court parts are located on the same floor as County Court parts. Designating a County Court courtroom adjacent to the Family Court as the “special Family Court part” would cause little disruption; at least de facto integration would be immediate. To be sure, the exact formula could not be used throughout the state. But that does not mean that special Family Court parts cannot be established and accommodated within criminal court facilities—just like the proposed adolescent criminal parts. The logistics are similar, and New York has long maintained a Unified Court System (if the Legislature simply raised the age, as proposed in the Assembly Leadership Bill, OCA could administratively accomplish the result I am advocating, though legislative authorization is clearly preferable). In due course, the “special Family Court parts” would become just Family Court parts, completing the integration process.

As noted, one great advantage is the fact that no further legislation would be required to fully implement “raise the age.” The interim statutorily authorized parts could be integrated fully in the Family Court by OCA when fiscally and administratively feasible. The Legislature could set the outer time limit by including a “sunset” provision. Resources would be gradually reallocated and augmented. Most importantly, New York could quickly join every other state (save, perhaps, North Carolina) in treating almost all children under the age of 18 as, well, children.

Conclusion

This brief article has outlined an admittedly “bare bones” structure. Much more work is needed. Decisions concerning, for example, prosecutorial authority (most advocates believe the district attorneys should maintain prosecutorial authority, whether the cases are heard in criminal or Family Court), the legal representation of the older adolescents, and the exclusion of very violent offenses, must be considered. So, too, the fiscal implications would have to be resolved (for example, the cost of providing children with legal representation in the Family Court is now borne entirely by the state, whereas criminal defense costs are largely borne by the counties).

Lippman should be commended for raising the “raise the age” initiative. Many individuals and organizations have joined the movement. New York’s children, including those who commit youthful mistakes, are no different than their counterparts in the rest of the country (and, for that matter, the rest of the civilized world, which uniformly maintains a higher juvenile jurisdictional age). The essential goal should be to indeed raise the age, and to raise it in the most equitable, effective and feasible manner.

Merril Sobie is a professor at Pace University Law School, and chair of the New York State Bar Association’s Committee on Children and the Law.

Endnotes:

1. The Illinois Juvenile Court also heard child protective cases; today every juvenile or family court hears a large array of cases involving children.

2. The U.S. Supreme Court has based several decisions, in part, on the neurological or psychological evidence concerning adolescence; see, e.g., Roper v. Simmons, 543 U.S. 551 (2005), which determined that persons under the age of 18 could not be punished capitally.

3. Between 1994 and 2007, the national arrest rate of persons under the age of 18 decreased by more than 50 percent. The lower rate has stabilized in recent years.

4. Sec. L. 1903, c. 676, 677 which authorized the establishment of children’s court parts throughout the state.