Raise The Age Gains Momentum; Governor's Support Viewed As A Positive Move By Legal Aid
TUESDAY, MARCH 24, 2015

According to the New York Law Journal, a movement to treat 16- and 17-year-olds charged with crimes as adolescents, not adults—an issue on the back burner in Albany for 50 years—has gained ground, and advocates of children are hoping to achieve their goal of success from this year's Legislature.

Governor Andrew Cuomo endorsed the raise-the-age campaign in his 2014 State of the State message and appointed a commission to study the issue. With the commission's findings in hand, he quickly incorporated its statutory recommendations in his 2015-2016 budget. The Legal Aid Society, which has a large Family Court practice, also opposes making youthful offender adjudication a predicate, but Tamara Steckler, Attorney-in-Charge of the Juvenile Rights Practice at The Legal Aid Society, told the NYLJ that the governor's program is, nevertheless, "a very positive move in the right direction."




Raise-the-Age Movement Gains Momentum
Jeff Storey, New York Law Journal
March 24, 2015

A movement to treat 16- and 17-year-olds charged with crimes as adolescents, not adults—an issue on the back burner in Albany for 50 years—has gained ground, and advocates of children are hoping to achieve their goal of success from this year's Legislature.

Gov. Andrew Cuomo endorsed the raise-the-age campaign in his 2014 State of the State message and appointed a commission to study the issue. With the commission's findings in hand, he quickly incorporated its statutory recommendations in his 2015-2016 budget.

Meeting with supporters of the bill in Albany recently, Cuomo's counsel, Alphonso David, compared raising the age of criminal responsibility to other social initiatives the governor has championed, such as same-sex marriage and gun control. 

David told the crowd in the Legislative Office Building that the provision "saves money. It saves lives. It reduces crime. It enhances public safety." He added in an interview that the proposal is important to Cuomo.

"I'm cautiously optimistic," said Jenner & Block partner Jeremy Creelan, co-chairman of the commission, who pointed to its position in Cuomo's budget as a sign of his commitment.

The governor's bill to raise the age of criminal responsibility from 16 to 18 is what its supporters call a comprehensive package. Creelan, who was a part of Cuomo's administration for three years before returning to his firm, said the unanimous report was "carefully balanced."

The budget would shift jurisdiction for about 86 percent of the offenses committed by 16- and 17-year olds—nonviolent felonies, misdemeanors and two violations—to Family Court, where the youths would receive rehabilitative services that currently are not available to them.

For more serious cases, the proposal would provide for special youth parts in adult court with judges trained in adolescent development and crime prevention techniques. Moreover, some of these cases could be removed to Family Court.

Whatever the offense, placement in adult jails and prisons would be prohibited.

The proposal would do more than cross out numbers in current law and substitute others. It would also increase opportunities for diversion from the courts and from detention and placement and offer more youth services.

To allow time for careful planning and to ensure that resources are in place, implementation of the governor's plan would be phased in. The age would be raised to 17 in 2017 and to 18 in 2018.

The budget for the year beginning April 1 includes $25 million for planning. However, according to the governor's office, that would increase to $375 million in the 2020-21 fiscal year, although it expects the program to save money by cutting crime and recidivism. Cuomo has pledged that the state would pick up added costs, an important reassurance for the counties.

Both the New York City Bar Association and the New York County Lawyers' Association have issued reports urging passage of the bill with some suggestions for changes.

Meanwhile, members of Raise the Age/New York, a coalition of dozens of organizations, has been running an energetic information campaign, generating 4,500 letters to legislators. (See www.raisetheageny.com.)

"We really have a lot of momentum," said Melanie Hartzog, executive director of the Children's Defense Fund-New York, one of the lead agencies in the coalition.

Assembly Democrats replaced the governor's proposal in their own budget with what Codes Committee Chairman Joseph Lentol, D-Brooklyn, calls "the purest proposal out there." Lentol would have even more cases originate in Family Court.

 

Adolescents Are Different

New York is one of only two states to automatically prosecute, convict and incarcerate 16- and 17-year-olds as adults; North Carolina is the other.

Those who want to change that say it makes little legal sense to treat that group differently from other adolescents. And studies of brain development and behavior have shown that adolescents should not be treated like 25- or 30-year-olds.

"Science tells me they are kids," Chief Judge Jonathan Lippman said three years ago in presenting his own raise-the-age plan (NYLJ, March 2, 2012).

The studies say that adolescents are immature, reckless, influenced by peers, and frequently ignorant of the consequences of their own actions. Moreover, since their characters are not fully formed, they would benefit from intervention and rehabilitation.

But the 16- or 17-year-olds who are incarcerated rarely receive that assistance, according to backers of the raise-the-age movement.

According to the governor's commission, on any given day, there are approximately 700 youths in local jails and 100 in state prison.

They are often treated badly. Research cited by the commission shows that youth in jails and prison face a greater risk than adult inmates of sexual assault, beatings by staff and attack with a weapon. This trauma leads to a higher risk of suicide, the commission said.

Finally, youth released from adult prisons and jails have higher recidivism rates than those treated as juveniles.

Commission member and Madison County Sheriff Allen Riley said few meaningful activities are available for youths in county jails, and they often mix with adults.

"It's hard for these kids to change their ways once they are in jail," he said.

The state Sheriffs Association has endorsed the governor's plan.

 

Emerging Concerns

Despite growing support for the governor's proposal, some concerns have emerged about what supporters concede are complex proposals.

The Senate omitted Cuomo's raise-the-age bill from its own budget. And although Westchester County District Attorney Janet DiFiore and Manhattan District Attorney Cyrus Vance Jr. served on the commission and have spoken up for its recommendations, other prosecutors wonder whether its passage would strip them of the authority to prosecute the most dangerous young people.

At a recent Senate hearing, Erie County District Attorney Frank Sedita, the current president of the District Attorneys Association, suggested that a majority of the association's membership opposed Cuomo's initiative.

The association has not yet taken a position on the proposal. Sedita said he had asked 10 or 12 members to analyze the budget bill.

Sedita said that current law provides a "straightforward comprehensible scheme" for prosecuting young offenders. He called Cuomo's proposal to change that scheme "an enormously complex and experimental piece of legislation" being sold by a "misleading" narrative that 16- and 17-year-old offenders are "victims of an embarrassingly regressive juvenile justice system that victimizes them."

He noted that 95 percent of prosecutions against defendants under 18 result in outright dismissals, pleas to noncriminal violations, the granting of youthful offender status or adjournments in contemplation of dismissal. But he warned that "some of the most dangerous and pathological criminals we prosecute are under the age of 18."

Sedita's remarks seemed to resonate with some senators.

"I'm dead set against this raise the age," said Martin Golden, R-Brooklyn, a former police officer. John Bonacic, R-Mount Hope, the chairman of the Judiciary Committee, said that he could see the need for rehabilitation, but "I just don't want to give 16- or 17-year-olds a free pass who commit a heinous, violent felony."

Sen. Michael Nozzolio, R-Seneca Falls, chairman of the Codes Committee, said in an interview that senators want to make sure that the bill will protect public safety. He said that he and his colleagues are concerned that judges would have total discretion in deciding whether to remove the cases of violent juveniles to Family Court.

Creelan said that the commission's report provided "a lot of safety valves" for the district attorneys.

David said that the governor's office had been talking to the district attorneys and was open to "clarifying amendments."

Nozzolio also noted that the legislation had "a lot of moving parts," and wanted to make sure that the final product works efficiently.

David said that the executive branch would name a project manager to coordinate the efforts of the state Office of Children and Family Services, local probation departments, the courts and other agencies charged with implementing the proposal.

Nozzolio said that removing the proposal from the Senate's budget was "without prejudice."

"People are taking this proposal very seriously," he said, "and we are discussing it with the greatest earnestness."

Some organizations representing defense attorneys, while supporting the idea of raising the age of responsibility, have spoken out in statements to the Legislature against the details of a bill they say is being "rushed through."

The New York State Defenders Association has urged withdrawal of Cuomo's "flawed" bill and "continued dialogue," saying that the measure as its stands could do "serious damage."

The New York State Association of Criminal Defense Lawyers complained that practitioners in the criminal and juvenile justice systems have not been adequately represented in the planning process. It said that the only part of the bill that should be enacted immediately is the proposal to move 16- and 17-year-olds from adult jails and prisons to age-appropriate facilities.

Among the groups' specific objections are making a youthful offender adjudication a predicate; using determinate sentences; failure to include all crimes committed by 16- and 17-year-olds; changes that would violate adolescent rights and make it harder to remove cases to Family Court; and strains on the Family Court and operators of facilities for juveniles.

Creelan said that the concerns of the defense organizations are "ill-founded. The reforms will improve the situation for thousands of youth facing prosecution. It is difficult for people who live in a system to accept changes, even when they will improve matters."

The Legal Aid Society, which has a large Family Court practice, also opposes making youthful offender adjudication a predicate, but Tamara Steckler, head of the organization's juvenile practice, said that the governor's program is, nevertheless, "a very positive move in the right direction."

Acting Justice Lawrence Marks, the court system's first deputy administrative judge, said during an information session organized by Raise the Age N.Y. that Family Court can handle the additional cases.

The commission estimated that its recommendations would increase the Family Court caseload by 6,840. That would be a 60 percent increase over the current juvenile delinquency caseload, but the increase calculates as less than 1 percent of total 2014 filings.

Moreover, Family Court filings have been declining, and the court will benefit from 20 new judgeships created last year. Finally, Marks promised that additional resources would be provided from other courts if necessary.

Judge Edwina Richardson-Mendelson, the administrative judge of the New York City Family Court, said in an interview that both the state and city Family Court Judges Associations support the move of 16- to 17-year-olds to Family Court.

Among the facets of her court that would benefit youths are extensive pretrial proceedings, the availability of enhanced probation adjustment, experienced judges, a commitment to a legal standard that emphasizes community safety in addition to the best interest of the child and the ability to engage parents in the process.

Richardson-Mendelson said that she was "very excited" about the prospect of taking on the cases of 16- and 17-year-olds.

"This is the right court for these cases," Markssaid.