The bill that is drawing contention within the New York State Assembly and has become a major obstacle in state budget negotiations has also drawn heavy criticism from local law enforcement and the District Attorney’s Office.
The Raise the Age of Criminal Responsibility – “raise the age” campaign, as it has been known – had been a longstanding priority for the Democratically held NYS Assembly. New York State and North Carolina are the only states in the union to view 16- and 17-year-old defendants as adults. However, New York also provides for Youthful Offender (YO) status to those in that age group as well. The YO designation pertains to those who have been charged with a crime when they were at least 16 years old but less than 19. The status is granted at sentencing and is meant to relieve eligible youth from the onus of having a criminal record.
In January 2015, Gov. Andrew Cuomo outlined a proposal to raise the age of criminal responsibility to 18. According to New York State Bar Association President Glenn Lau-Kee, raising the age of criminal responsibility will help all children to embark a more positive path to adulthood; providing troubled teenagers with support and guidance can help them turn around their lives. Wyoming County District Attorney Donald O’Geen holds the position that raising the age of criminal responsibility is both irresponsible and reckless.
“The Democratically held NYS Assembly wants to send all crimes, including serious felonies, committed by people 16 to 18 years of age into Family Court, where there will be no convictions and more important no accountability. In addition, there will be minimal, if any punishment, and very limited (if any) public access to or knowledge of the proceedings,” O’Geen said.
“The governor has put his own Raise the Age bill inside his budget, so that either he has to take it out prior to the budget being passed or the entire budget process may be held hostage over this one major policy issue. A bill or policy shift of this magnitude should never be attached to a budget. It should be voted on as a stand alone issue with debate and input from people who actually know the facts.”
According to a The New York Times article Tuesday, the Raise the Age bill passed, but with some stipulations. Although Republicans in the Senate agree with the broader outlines to divert many of that group to Family Court, contention grew about the kind of charges that would still be serious enough to warrant Criminal Court.
According to the article, a summary of the legislation agreed to by the Democratic leadership of the Assembly states all misdemeanor charges faced by 16- and 17-year-old offenders would be handled in Family Court. A new youth section of Criminal Court would handle nonviolent felony charges, with many of those cases eventually landing in Family Court. However, those cases in which a district attorney can prove “extraordinary circumstances” would be excluded. Additionally, juveniles would be segregated from adults in county jails beginning in late 2018.
Although violent felony cases would remain in Criminal Court, they would be subject to a three-part test: whether a “deadly weapon” was used; whether the victim sustained “significant physical injury”; and whether the perpetrator engaged in criminal sexual conduct. Without one of those factors, violent felony cases could also be moved to Family Court.
As of Wednesday morning, the measure was put back on the table after more draft language dealing with incarceration was added to the bill.
“The public and media need to know that if this new major policy shift becomes law and the effect of it causes a severe increase in crime that will be owned by the Democrats,” O’Geen said. “Also, anyone voting for this new law is clearly not serious about fighting the heroin epidemic.
“This law will create a space for 16- or 17-year-old gang members and drug dealers to deal drugs without any fear of consequences. The legislature has created that space and without trying to stop the sale of the heroin you are never going to stop people from dying.
“This also signals a clear message that the legislature continues to be soft on drug dealers as they continue to classify the sale of drugs that are killing people faster in Erie County than are born as nonviolent. Fighting the heroin epidemic requires treatment for the user and punishment for the dealer. Without an all-of-the-above approach it will not end and people will die. This is very disappointing and shortsighted.”
At this point, the issue is being negotiated and nobody knows what a final bill, if any, will look like. Currently the District Attorney’s Association of New York, and the Chiefs of Police and the New York State Sheriff’s associations are opposed to these proposals as they are deemed as a “threat to public safety.”
With implications that are far reaching, how does the Raise the Age bill impact other laws on the books like SORA (Sex Offender Registry Act) and the Department of Motor Vehicles (DMV)? Under the current proposal, driving while intoxicated with no injuries would be decriminalized and go through Family Court, officials say.
“First, you have to understand that these proposed laws are a solution in search of a problem. Ninety-five percent of those arrested aged 16-17 do not end up with a criminal conviction or jail time,” O’Geen said. “This is because New York State already has many mechanisms to divert and sort out young offenders, including compassionate prosecutors and judges. The people on the other side of this issue would have you believe that 16/17-year-olds charged with nonviolent crimes are being thrown in prison and saddled with a conviction for the rest of their life. This is false and misleading.”
During a recent address by Gov. Andrew Cuomo at the Central Synagogue in New York City, he said “86 percent of the 25,000 16- and 17-year-olds incarcerated have been accused of committing nonviolent crimes.”
A report by the Commission on Youth Public Safety and Justice states in part:
Weekend Detention Stays Pending Arraignment Adult system processing is currently structured to arraign adults over the weekend in order for the court to make decisions about releasing individuals pending trial. However, this kind of court access is not available in the juvenile detention setting outside of New York City. Instead, youth arrested and detained as juveniles must wait until Monday to see a Family Court judge if they are arrested after the Family Court closes on Friday afternoon. These days are spent in a detention setting despite the fact that the youth may be released once they have the opportunity to see a judge. Shifting 16- and 17-year-olds to a delinquency model without implementing weekend arraignment for Family Court cases would therefore leave these youth more subject to incarceration than they currently are.
According to the Department of Corrections and Community Services (DOCCS) on Jan. 1, 2013 there were a total of 54,865 inmates under custody in New York State Correctional facilities. Of that total, 2,390 inmates were under 21 years old – equal to 4 percent of the total prison inmate population in the state.
By way of comparison, those between 30 and 39 years old make up the largest inmate population – 15,206 incarcerated (27.7 percent), with those between 21 and 29 coming in at a close second – 15,106 (27.5 percent).
Approximately half of the inmates under custody – 25,442 or 46 percent – were from New York City, 6,228 or 11 percent were from suburban New York (Nassau, Rockland, Suffolk, and Westchester counties), and 13,243 or 24 percent were from Upstate counties with a population of 50,000 or more (Albany, Broome, Erie, Monroe, Oneida, Onondaga, Niagara, Rensselaer, and Schenectady counties). The rest of the inmates – 9,951 or 18 percent – were from the remaining counties.
Of those incarcerated, 35,29 inmates (64.3 percent) are in prison on violent felony charges, while 19,574 (35.6 percent) are convicted of coercive behavior, drug offenses, property and other crimes.
According to a New York State Commission of Correction report, as of March 30, 2016 there were 15,308 inmates in correctional facilities operated by counties. Additionally, 9,674 inmates are from NYC DOCCS (Department of Corrections & Community Services), which operates correctional facilities in the five burroughs – Bronx, Kings, New York, Queens, and Richmond; and 52,245 inmates were incarcerated in State Facilities (NYS DOCCS) in the remaining 57 counties – for a total of 77,227 inmates statewide.
By way of comparison, on the same date in 2006, the county inmate population was 16,640, NYC DOCS 13,661, and the remaining 57 counties housed 63,300 inmates – totaling 93,601 inmates statewide.
Across the state in 2016, there were a total of 24,623 arrests of those who were between 16 and 17 years old. Of those arrests, 17,250 were for misdemeanors, 3,930 for nonviolent felonies, and 3,445 for violent felonies.
As of Feb. 17, 2012 Wyoming County arrests showed 16-year-olds accounted for 10 misdemeanors, two nonviolent felonies and zero violent felonies. By 2016, they accounted for eight misdemeanors, three nonviolent felonies and two violent felonies. During that same time, 17-year-old accounted for (2012 arrests) 19 misdemeanors, three nonviolent felonies and four violent felonies. By 2016, 17-year-olds were arrested for 11 misdemeanors, one nonviolent felony and one violent felony.
Since 2012, the total number of 16 and 17-year-olds arrested for those crimes decreased from 38 to 26 in the county.
The same report shows – across the state (in 2016) there were a total of 24,623 arrests of those who were between 16 and 17 years old. Of those arrests, 17,250 were for misdemeanors, 3,930 for nonviolent felonies, and 3,445 for violent felonies.
“Everyone in our jail has been committed there by a judge including 16- and 17-year-olds,” said Sheriff Greg Rudolph. “Last year (2016) we had 738 inmates in the jail, of those inmates, 12 were between 16 and 17 years old. It’s a very small population and I don’t think judges are committing 16- and 17-year-olds to jail on a regular basis. Judges take their age – the option of youthful offender status – into consideration upon arraignment. Not only that, they are like everyone else. They are represented by an attorney at arraignment, just like everyone else. They get due process, just like everybody else. I don’t see a big need to shift that. And when it comes to funding, who is going to pay all these transports, the new court or an addition to the current court? Who’s going to pay for all this?”
Anytime a juvenile younger than 15 years old has to be housed, they can to be house anywhere around the state, and oftentimes, the juvenile needs to come back to Family Court the following day. Rudolph says it takes two officers to take the accused to a proper facility, and the same to bring the accused back to court.
“It is an unfunded mandate and it’s being included in the budget process which is ridiculous,” Rudolph said. “This is a major policy shift for the state and shouldn’t be included in the budget process. It should be in a regular legislative session where it can be debated, and the pros and cons can be weighed, and come up with a solution that maybe the District Attorneys Association is looking at…I think there is a better way to do this than try pushing it through at the last minute in the budget.”
The dozen 16- and 17-year-olds housed in the Wyoming County Jail last year were separated from the rest of the adult population, says Rudolph. The State Department of Corrections already mandates prisoners in that age group be housed in a separate portion of the jail than the adult population. While youth prisoners have already been housed separate to the adult general population, an executive order passed in December 2015, called for the removal of all minors from state prisons and into juvenile facilities.
Additionally, as of the same date, the governor offered executive pardons to New Yorkers convicted of nonviolent crimes at ages 16 and 17 who have been crime free for a minimum of 10 years since their offense. For individuals who receive this pardon, the New York State Office of Court Administration has stated that it will restrict public access to criminal history records, meaning that they will not be available to private employers, landlords or other companies that seek this information. For more information, click here.
“We are already doing it (separating youthful inmates),” Rudolph said. “I don’t see a need why there should be a major change in the policy if we are already doing it. It’s not a matter of the system being broke.”
“In New York State, every first-time offender who is charged with a misdemeanor between the ages of 16 and 18 is granted youthful offender status automatically,” O’Geen said. “These cases are handled in criminal court but are done so in private. When the youth is granted this status his/her conviction is converted to a YO adjudication and the case is then sealed and they no longer have a conviction. Under the current law victims have a say and they are entitled to restitution while the defendants can face accountability with things like community service, counseling, testing, supervision, curfews and in rare cases some local county jail time.
“If a 16 to 18 year old is charged with and prosecuted with a felony, the YO status is still available but that is determined solely by the judge. I can tell you that the system already takes into account the fact that young adults sometimes make bad decisions and the system gives them every opportunity to be held accountable for their current acts without being punished forever.”
Many of the individuals may be in prison because a significant prior criminal or family court history or they may be in prison is because they were determined to be a major risk to the public, i.e. a seller of heroin or cocaine (even though the state assembly considers selling heroin to be a non-violent crime), officials say.
“Ask the family members who have lost a loved one to a heroin overdose if selling heroin is a non-violent homicide,” O’Geen said. “There should be no such thing as a non-violent homicide in New York State.”
Anyone with any experience with Family Court knows sending thousands of additional criminal cases into Family Court is not going to solve anything, members of the DA’s Association say. They do not have the capacity for a “400 percent” increase in cases and it would require huge increases in funding. There are family court judges who are also against this proposal because they know they cannot handle the influx of cases. Since criminal prosecutors do not prosecute cases in family court there will be probation officers and other family court attorneys who will be tasked to take on these cases without the proper training and/or experience.
“The big thing is the fact that as a prosecutor, doing this 17 years, we continually go to training every year and are required to. We handle this (criminal cases) on a daily basis. We are experts in our field, just like those in Family Court are expert in theirs. With youth being sent over to Family Court, they will be handled by Family Court attorneys who know very little about criminal law, sex registration as it relates to SORA and the like. That’s the biggest structural issue with them going to Family Court.”
When a juvenile is arrested they meet with the Probation Department and the decision is made there whether the case will go to Family Court without any input from the victims, judges or prosecutors. Should the Raise the Age bill pass, the same would hold true for 16- and 17-year-olds. The DA says the proposed bill will have more of an impact on the state as a whole than here in Wyoming County.
“We don’t have a large population of 16- and -17-year-olds that commit felonies,” O’Geen said.
Some members of the DA’s association suggest an easier solution – raise the YO age from 19 to either 21-25. I personally support rising the YO age to 21,” O’Geen said. “This will cover more young adults who have that one time indiscretion, it keeps the cases in the criminal courts where they belong and it costs nothing to implement. This proposal also fulfills the promise to ‘raise the age’ so any political promises can be kept at least to some extent. If New York State made youthful offender treatment mandatory for all offenses say for example for anyone under the age of 21, but included a provision that if they get into more trouble the conviction is reinstated, it would save many youth from the onus of a conviction while not sacrificing the safety of our communities. There would be basically no cost and no possible downside, but a huge upside for both youthful offenders and the safety of communities.”
Some members of the DA’s association also support Adolescent Diversion Parts (ADPs). These are separate criminal court cases where the courts and prosecutors deal with the 16, 17 and 18 year olds based upon the needs and issues with that age group (similar in nature to Treatment Courts for addicts or Veteran Courts for veterans). These special courts may or may not be a good fit for all counties due to lack of staffing and resources but for some counties who currently have ADPs they are finding success with these programs.
“Even with the DA’s Office cut right out of it, we still have to run an investigation,” Rudolph said. “We still have to present an investigation as best we can, so instead of it going through the DA’s Office, it will go to the County Attorney’s Office and through Family Court that way.
“When it comes to interviewing juveniles it does put more rules into place. You have to interview in a certain spot, the parents need to be notified right away…those types of things and can hinder an investigation and slow it down to a halt. When you are talking about a shoplifting or something like that, is it a big deal? No. But if you are talking something big in a school or something like that and you need to get on top of it right away, yes, it will have an impact.”
Under either the assembly proposal or the governor’s proposal, crime victims would be shut out of the process completely. In a recent case, Wyoming County had some youth damage local houses and cars with spray paint. They were handled in criminal court and given YO so their convictions were sealed and they were ordered to pay restitution. Under the proposed laws, the victims would have no chance of getting any restitution and they would have to bear the brunt of paying their deductible and worry about their insurance premiums rising.
“In the hypothetical case where a 17 year old rapes a child under the age of 11, the victim or victim’s family (under the proposed laws) would have no right to be heard at sentencing. They would not be entitled to have a victim advocate to inform them of the processes and procedures. These victims would also be reliant on untrained family court personnel to bring them justice as the family court attorney’s usually are only experts in family law and not criminal law. It takes prosecutors years of training and experience to handle complicated violent crime cases. Then there is the issue of Sex Offender Registration and victim notification? Orders of Protection? This issue intertwines so many other ancillary issues within the criminal system it cannot and should not be negotiated by three people in a room.
“There are some very inexpensive solutions that would have a far greater impact on the issue of concern. If we could just stop the ego train and talk to those actually involved on the front lines they could learn so much and not make devastating mistakes for generations to come.
“Just because someone else…just because there are 40 people jumping off the bridge, should we go too when there’s nothing wrong than staying on the bridge?” O’Geen said. “The percentage is small, the number of people is small…I don’t think the system is broken, but again, we can only give the numbers for Wyoming County.
“The drug cartels and the like are certainly going to use these 16- and 17-year-olds to do their bidding because they can bean count and say ‘well we know you’ll be going to Family Court and you’re going to get compensated and there will be no risk.’ That… next to the current opioid issue? I don’t see how you can talk out both sides of your mouth when you say we’re going to get tough on this, when it’s just all talk. They aren’t doing anything, and then you get a policy like this and it goes in the opposite direction. This is clearly a solution in search of a problem.”
UPDATE 7:38 p.m.: With the passing of the state budget, the Raise the Age of Criminal Responsibility bill has also passed.
See related: Many of the Senate's top priorities reached in the state budget