After “Raise the Age” reform, New York continues to prosecute youth as adults

New York’s long-overdue ‘Raise the Age’ law will protect 16- and 17-year-olds from Rikers Island, but not upstate prison

Sarah Lustbader

This month, a New York State law raised the age for trying youth in family court and took everyone under 18 from Rikers Island. Now, New York will no longer automatically charge 16-year-olds as adults; in October 2019, the law will also apply to 17-year-olds. New York had long confined youth alongside adults despite ample evidence of harm. A 1972 oversight report on conditions for youth on Rikers Island concluded that the adolescent facility “is the worst prison in the city.” A U.S. Justice Department investigation four decades later found things little changed, describing a “deep-seated culture of violence.”

So there was certainly cause for celebration after the Raise the Age initiative passed, with some calling it a historic protection for young defendants. The law is a major change in how the state deals with 16- and 17-year-old defendants, diverting the majority of those cases directly to family court or to judges with access to social services and special training. And until it passed, New York was one of only two states, with North Carolina, to automatically treat every 16- and 17-year-old as an adult.

But after hard-fought negotiations, the resulting bill left many supporters disappointed. “This is real simple, and we made it complicated,” state Senator Kevin S. Parker of Brooklyn said. “All we had to simply do is say that we’re going to take 16- and 17-year-olds and we’re going to treat them just like 15-year-olds. … And we messed that up.”

Kate Rubin, director of policy and strategic initiatives for Youth Represent, told the Daily Appeal that the vast majority of 16- and 17-year-olds arrested are accused of misdemeanors, and under the new law, those facing misdemeanors will have their cases handled in family court, not criminal court. There, they will have no chance of getting a criminal record, the case will be kept confidential, and they will be spared the vast majority of the collateral consequences that make it so difficult to lead a successful life after a criminal conviction.

Nonviolent felony cases will all start in criminal court, in a new section known as the “youth part,” which is staffed by judges trained in family court law. After 30 days, 16- and 17-year-olds will be automatically sent to family court unless a district attorney proves “extraordinary circumstances,” a term the law does not define. In violent felony cases—which make up about 1 percent of juvenile charges in New York each year—young people will start in the youth part of criminal court but could be diverted to family court if the victim did not sustain significant physical injury, if the case did not involve a deadly weapon, and if there is no allegation of criminal sexual conduct.

Rubin notes that there’s a meaningful difference between how young people see themselves when they are tried in family court, as opposed to the way they see themselves if they go through criminal court. Professor of law and public health Jeffrey Fagan has compared young people who were arrested in New York to those arrested in New Jersey, where people are legally considered juveniles until age 18. Fagan found that the New York youth, who went through the adult system, were arrested again more quickly, more often, and for more serious crimes.

Vincent Schiraldi, co-director of the Columbia Justice Lab and former commissioner of New York City Probation and director of youth corrections for Washington, D.C., wrote in an op-ed that although “it is laudable that the governor and Legislature have acted, the new law creates a hybrid system that is nationally unprecedented and potentially dangerous.” He points to the “quasi-adult system” that will send incarcerated 16- and 17-year-olds to “facilities run jointly by adult and juvenile corrections personnel—facilities that do not currently exist and are particularly difficult for small counties to create.” It will take young people far away from their families and attorneys and will counteract “the intended goal of raising the age of criminal responsibility in the first place—namely, to treat youth like youth.”

“An adult prison is always a prison, even if there’s programming and some services related to training and education and re-entry preparation,” Rubin told the Daily Appeal. “Prisons are designed for punishment and retribution.” Ideally, a youth facility sets a young person up to exit that facility and succeed on the outside, with services tailored to a young person’s needs. Maybe the difference between serving a 40-year-old and a 50-year-old isn’t tremendous, she notes, but the difference between serving a 16-year-old and a 30-year-old is. “If a 40-year-old wants to get a high school degree, we don’t send them back to high school because we know that they learn in a different way, their brain operates differently,” she says. “We should have the same philosophy when it it comes to corrections.” And adult facilities, she adds, have been shown to be terrible for kids. Suicide rates are high, young people are vulnerable to high rates of staff abuse, and they are unlikely to raise complaints.

“The new legislation purports to treat adolescents as adolescents, but actually continues the illogical and harmful practice of prosecuting youth accused of more serious crimes as adults,” Gregg Stankewicz, director of the Adolescent Defense Project at the Bronx Defenders told the Daily Appeal. “Lawmakers acknowledged the science of adolescent brain development, but lacked the political courage to afford this understanding to all of the young people in the criminal justice system.

published Oct. 26, 2018 in the Daily Appeal newsletter