(Photo: Ammentorp Photography/Fotolia)
Gov. Andrew Cuomo’s renewed push in his State of the State address to raise the age of criminal responsibility is a critically important component of criminal justice reform, and an opportunity to end New York’s ignominious status as one of only two states that automatically try 16- and 17-year-olds as adults in criminal court.
It’s also an opportunity for New York City—working with the judiciary, the district attorneys and the defense bar—to expand local policies and procedures to mitigate the effects of New York’s draconian age threshold while we wait to see if the legislature heeds Gov. Cuomo’s call.
Currently, state law requires that all 16- and 17-year-olds be tried in criminal court as adults, even for misdemeanors. Only North Carolina has such a rule in place. Eight states set the age of criminal culpability at 17, and the remaining forty states start at 18. Thirteen-, 14- and 15-year-olds who commit certain serious violent offenses can also be tried in criminal court, but as juvenile offenders.
The practical effect is that in 2015, nearly 17,000 16- and 17-year-olds were charged as adults in the five boroughs, with more than eight hundred sentenced to some sort of jail or prison time and nearly the same amount sentenced to “time served.”
There’s a good reason almost every other state does things differently.
The science of adolescent brain development indicates that youth are less culpable than adults; they don’t fully understand and appreciate the gravity of their conduct, and can’t restrain their impulses as well as adults.
Three times between 2005 and 2012, the Supreme Court limited the punishment that could be imposed on defendants under 18, primarily in recognition of their diminished capacity for culpability, first prohibiting the imposition of the death penalty, then barring life without parole sentences in non-homicide cases, and then extending the ban even to homicides.
Aside from unfairly ascribing culpability, the process of adjudicating 16- and 17-year-olds as adults causes them particularized damage. The adult criminal justice system is highly traumatic. Youth subjected to arrest are placed in precinct holding cells and channeled through central booking alongside adults, who are often hardened criminals able to prey on younger offenders. Youth also feel more deeply the stigma of being labeled a criminal, as their sense of identity is still being formed. Not to mention the collateral consequences of a criminal conviction for a young person who hasn’t yet applied for college, hasn’t yet established themselves in a trade or profession, hasn’t yet settled in an apartment or home—real criminal convictions will diminish all of these opportunities.
And, of course, the impact of arresting, charging and trying 16- and 17-year-olds as adults falls disproportionately on black & Latino youth, who make up seventy-two percent of all arrests, and seventy-seven percent of all felony arrests, in that age group. In New York City, black and Latino youth account for more than ninety-five percent of prison sentences for 16- and 17-year-olds.
It should be no surprise, then, that recidivism and youth crime rates have decreased in jurisdictions where the age of criminal liability has been raised, such as in Illinois and Connecticut.
The good news is that the city, courts, district attorneys and the defense bar have taken Gov. Cuomo’s push for reform as an opportunity to creatively reshape aspects of the system to more appropriately handle these cases.
In 2012, Chief Judge Jonathan Lippman, in conjunction with the Center for Court Innovation, established adolescent diversion parts—specialty court settings for 16- and 17-year-olds in criminal courts throughout the state. All five boroughs participate, but only misdemeanor charges are eligible. The parts divert youth to ensure that participants receive much needed social services, including counseling, mediation, employment readiness, and three to six months of drug or mental health treatment.
The Center for Court Innovation evaluated outcomes for “high risk” youths who participated in the adolescent diversion parts, and found statistically significant improvements in terms of lower re-arrest rates, and in particular re-arrests for violent felonies.
Another initiative, Project Reset, a collaboration between the New York Police Department and the Center for Court Innovation, diverts 16- and 17-year-olds charged with first time, low-level, nonviolent, non-victim misdemeanors offenses (primarily drug possession, trespassing, and shoplifting) pre-arraignment. These youth are arrested, brought to the precinct, and receive a desk appearance ticket with a nine-month return date, after which prosecutors and defense counsel decide on participation in a restorative justice diversion program. Provided successful completion, the district attorney formerly declines to prosecute with no public record of the arrest. Project Reset recently expanded to cover all of Manhattan and one precinct in Brooklyn.
As valuable as these efforts are, more can be done while we await change from the legislature.
The adolescent diversion parts can and should be expanded to include nonviolent felony offenders—approximately 2,500 16- and 17-year-olds in 2015. Limiting participation to misdemeanants prevents the full benefit of treating young people as young people from being actualized, and does virtually nothing to avoid incarceration, as misdemeanant youths are rarely incarcerated. Indeed, excluding appropriate felony defendants from participating damages public safety because Center for Court Innovation’s data confirms that “high-risk” youths make the biggest gains in reduced recidivism.
Project Reset should likewise be expanded, both geographically and in terms of the offenses covered. If it’s good enough for Manhattan and a precinct in Brooklyn, why not take it citywide? Thousands of 16- and 17-year-olds throughout the five boroughs are having their lives ruined for want of a vision for reform that includes their neighborhoods.
The offenses covered should also be expanded. Opening up the program to individuals with previous low-level criminal justice involvement would vastly broaden the scope of applicability, and reflect the reality that sometimes it takes a few times for something to “stick” with younger people. Further, expanding eligibility beyond the lowest-level criminal involvement can actualize the immense potential benefit of the program beyond the lowest hanging fruit.
And finally, we should also ask whether youth who meet Project Reset’s participation requirements should still be arrested, handcuffed, and detained at a precinct at all. For less serious offenses, why not skip the arrest at all and develop mechanisms that allow for genuine pre-arrest diversion (provided the youth has identification).
The city should also act today to remove some of the collateral consequences that 16- and 17-year-olds face. For example, the New York City Housing Authority routinely initiates “termination of tenancy” proceedings against 16- and 17-year-olds following arrests for alleged low-level criminal conduct. This forces families to choose between losing public housing benefits or excluding their children from their apartment, even before a criminal conviction occurs. A significant liberalization in NYCHA termination policy is needed to avoid placing vulnerable children and families in that difficult situation.
And, of course, the city could finally fulfill its promise to move 16- and 17-year-olds off Rikers Island, and place them in a setting properly suited to housing young people and more easily accessible to their families.
Ultimately, the legislature needs to heed Gov. Cuomo’s call to raise the age of criminal responsibility. Until it does, New York City—in partnership with the courts, our five district attorneys and the defense bar—needs to push the envelope further in how we blunt the sharp edge of the criminal justice system for nonviolent teenagers.
Trying young people as adults, and sentencing them to long prison terms alongside adults, is unjust and unwise for these teenagers, for taxpayers and for the public. Raising the age raises us all.