On Law Day 2010, as we are asked to reflect on “Law in the 21st Century: Enduring Traditions, Emerging Challenges,” I want to focus on juvenile justice, an area in which New York state has a proud history but now faces some very serious challenges.

Well into the 19th century in the United States, children over the age of seven who committed offenses were imprisoned in adult penitentiaries. In the early 1800s, social and political reformers in New York City began advocating for the creation of special facilities for children, to separate them from adult prisoners and help them avoid future lives of crime.

In 1824, these reform efforts led the state Legislature to approve construction of the House of Refuge for Delinquent Children, the first such facility in the nation’s history.1 The House of Refuge opened on Jan. 1, 1825, and was operated by the Society for the Reformation of Juvenile Delinquents, housing youths under the age of 16.

In 1851, the Children’s Aid Society opened the New York Juvenile Asylum to house children under the age of 12.2 New York’s early efforts to rehabilitate young offenders and divert them from adult prison populations eventually spread throughout the country.3

Nearly two centuries later, New York is failing to live up to its proud history of leadership in juvenile justice reform.

Last August, the Justice Department issued a report that found widespread violence and abuse in four of New York’s youth prisons. This grim reality was confirmed months later by a gubernatorial task force, which concluded that “by incarcerating thousands of children in facilities, the largest of which closely resemble adult prisons, New York State is harming its children, wasting money, and endangering its public.”4

Both reports echoed the earlier findings of the court system’s Task Force on the Future of Probation, which concluded in 2008 that our juvenile justice system is failing young New Yorkers, particularly the many misdemeanants who do not pose a threat to public safety and whose placement in state facilities, “however brief, tends to place them on a downward trajectory to deeper involvement in crime.”5

Further, The New York Times has reported that state facilities lack few, if any, psychiatric professionals to address the mental health problems of young people, and that judges face a severe shortage of viable alternatives to institutionalizing troubled kids.6

Facts and Figures

About 1,600 young people are sent to juvenile detention facilities each year.

It costs the state about $210,000 annually to institutionalize each of these youths, roughly 10 times the cost of the most expensive community-based alternative to incarceration programs.7

It is an understatement to say that the return on this investment is abysmal.

An estimated 89 percent of boys incarcerated in New York’s juvenile detention facilities go on to commit additional crimes.8 This is especially troubling given that as recently as 2007 the majority of young people (53 percent) being sent to these facilities had committed misdemeanor-level offenses,9 and that low and moderate risk offenders who receive community-based services are more likely to avoid further contact with the justice system.10

Clearly, too many kids are being sent to institutions that serve as incubators for hardened criminals and, in too many instances, they are being sent there not because of the severity of their offenses but because of the chaos in their home lives—addiction, mental illness, family dysfunction, etc.—and because the services they so desperately need to get their lives back on track are not available in their communities.

A strong consensus has emerged among juvenile justice professionals, policy makers and even prosecutors, that New York needs to fundamentally re-think how its justice system responds to troubled young people, with juvenile probation services taking on a much greater role and incarceration serving as a last resort, and only where public safety is at issue.

Additionally, New York needs many more community-based alternatives to incarceration that offer critical therapeutic, educational and occupational services.

But merely giving judges more sentencing options is not enough. If we want Family Court judges to send fewer kids to youth prisons, we must give judges meaningful alternatives that both protect public safety and promote the best interests of young people.

As the gatekeepers who decide whether or not juveniles should be placed behind bars, judges must have confidence that available alternatives to incarceration are rigorous and effective, and that the local probation departments charged with supervising kids and connecting them to needed services are adequately staffed, responsive to judicial concerns, and capable of ensuring compliance with sentencing conditions.

The Role for Probation

Family Court judges sentence about 4,500 young people to probation each year. These sentences are administered by local juvenile probation departments responsible for screening cases, linking youths to drug treatment, mental health and other services, and supervising and reporting on progress.

For Family Court judges to do their jobs properly, they need a strong, well-functioning juvenile probation system. Unfortunately, probation has long been a stepchild of the justice system, routinely overburdened, underfinanced and struggling to provide meaningful services and oversight.

Two decades ago, state funding made up about half of county probation budgets, but today that figure is down below 20 percent.11 As New York seeks to reduce the number of young people it incarcerates, this will inevitably increase the number of juveniles on probation. With financially strapped localities already struggling to fund juvenile probation adequately, what will happen when hundreds of additional cases are added to their caseloads?

The Judiciary’s Proposal

In direct response to these concerns, the judiciary recently submitted a legislative proposal that would allow us to assume the executive branch’s current responsibilities for statewide oversight and budgeting of juvenile probation.

Our bill would give the judiciary authority to set statewide standards governing the delivery of probation services in Family Court. It would also transfer to the judiciary the state’s statutory responsibility for reimbursing counties for their costs in operating juvenile probation systems.

Over time and as the economy improves, the court system can serve as a strong advocate in Albany that understands just how important it is to provide county probation departments with the resources they need to handle increased caseloads, provide intensive services and ensure close monitoring of juveniles.

Our bill also proposes a supplemental grant program that would allow localities to apply for additional state assistance in return for a greater commitment to their juvenile probation systems, particularly in establishing more alternative to incarceration programs and providing for more substance abuse treatment, mental health, educational and other essential services.

This proposal, which is being urged and supported by local probation commissioners around the state, makes good policy sense on many fronts.

First, from the court system’s perspective, we are the governmental body most directly affected by probation’s shortcomings. When probation agencies are overworked and unable to offer adequate services to juveniles, Family Court judges are handicapped in their ability to provide effective justice to troubled youths.

Furthermore, if the objective is to limit the number of young people being sent to expensive, self-defeating youth prisons, then the judiciary of this state has a proven track record of utilizing alternatives to incarceration in ways that reduce recidivism, improve public safety and save the state money. As Attorney General Eric Holder pointed out at the 2009 annual meeting of the American Bar Association:

New York has been a leader…diverting some non-violent offenders into drug court programs and away from prison, and extending early release to other non-violent offenders who participate in treatment programs. And while national prison populations have consistently increased, in New York the state prison population has dropped steadily in the past decade, and has 12,000 fewer inmates now than it did in 1999.12

The New York courts’ pioneering commitment in the 1990s to linking nonviolent adult offenders to community-based drug and mental health treatment has made us a national model for how to hold offenders accountable for their actions while producing positive outcomes for defendants, their families and our society. The time has come to apply these lessons to troubled young people.

Of the many emerging challenges facing the courts and the legal profession in this state, none is more daunting than transforming a juvenile justice system that is failing badly.

As someone who has been involved in court reform efforts for my entire professional life, I am optimistic that positive transformation is possible, if we seize this moment as an opportunity to reduce our over reliance on incarceration, make deeper investments in alternatives to incarceration, and reestablish a strong, vibrant juvenile probation system that is capable of working closely with judges to put troubled young people back on productive, law-abiding paths.

I know that the legal community in this state will support us in this vital effort. If we have learned anything together over the last two decades, it is that positive reform of the justice system is possible when we all work together.

Jonathan Lippman is Chief Judge of the State of New York.

Endnotes:

1. New York City Department of Juvenile Justice, “The Beginnings of the Juvenile Justice System,” http://www.nyc.gov/html/djj/html/1800.html.

2. Id.

3. ABA Division for Public Education, “The History of Juvenile Justice,” Part 1, available at http://www.abanet.org/publiced/features/DYJpart1.pdf.

4. Task Force on Transforming Juvenile Justice, “Charting a New Course: A Blueprint for Transforming Juvenile Justice in New York State,” December 2009, at 10.

5. Task Force on the Future of Probation in New York State: Phase II, “Report to the Chief Judge of the State of New York,” November 2008, at i.

6. Julie Bosman, “For Detained Youths, No Mental Health Overseer,” The New York Times, Feb. 10, 2010.

7. “Charting a New Course,” supra note 4, at 10.

8. Id., at 14.

9. Id., at 10.

10. “Report to the Chief Judge,” supra note 5, at 52-55.

11. Id., at 5.

12. Available at http://www.justice.gov/ag/speeches/2009/ag-speech-090803.html.