Raise the Age raises questions for local officials
The push to raise the age of criminal responsibility from 16 to 18 years old is a massive and multifaceted overhaul of the state’s criminal justice system, according to local criminal justice officials.
The law, which was passed in the state budget, will affect nearly every agency involved in detaining, assessing, prosecuting and holding court for criminal suspects. It also establishes several new categories for young criminal offenders, each of which has different requirements for processing, detainment and court proceedings.
“This is a revamp of the entire criminal justice system as it relates to youth,” said county District Attorney Caroline Wojtaszek.
Proponents of raising the age say the shift will offer more rehabilitative services for young offenders, reduce recidivism and protect teens from potentially traumatic or violent encounters in adult prisons. New York State is currently one of just two states (the other being North Carolina) that prosecutes 16-year-olds in traditional criminal court.
But many local officials have questions on exactly how the new rules will take effect. They also wonder whether the state will reimburse counties for the cost of additional personnel and renovated facilities that may be needed to accommodate those rules.
Attorneys, police officers, judges and probation officers will have some time to have make the necessary accommodations. Possibly acknowledging the complexity of the overhaul, the law will be phased in over time.
The changes for 16-year-olds will not take effect until Oct. 1, 2018, and for 17-year-olds not until Oct. 1, 2019.
Among the top concerns of criminal justice officials and common citizens is how the law will affect 16- and 17-year-olds charged with serious felony crimes.
Wojtaszek said the District Attorneys Association of the State of New York voiced just these worries. In the run-up to the law’s passage, DAASNY advocated to expand the lists of crimes for which teens would be tried in so-called adult criminal court.
The list includes murder and manslaughter, attempted murder, rape and other felony sex crimes, arson, non-sexual assault, robbery, burglary, kidnapping and weapons crimes. However, the list mostly only applies to first- and second-degree charges — the most serious instances of these crimes.
“I understand people’s concerns about the treatment of young people in the criminal justice system, but we have to balance that concern with the understanding that 16-year-olds are participating in more and more violent crimes,” Wojtaszek said. “I’m encouraged to see in passing raise the age, the state took into consideration the concerns and advice of (DAASNY).”
If someone between 13 and 17 years old commits one of these crimes, they will be treated as a juvenile or adolescent offender. Which designation the offender receives depends on the age and the crime; adolescent offenders will be 16- or 17-year-olds who have committed a felony charge.
Under the law, juvenile and adolescent offenders will be tried in a special Youth Part in criminal court. All counties will be required to have a Youth Part.
After the offender is arraigned, any party can make a motion to move the case to Family Court.
Meanwhile, all 16- and 17-year-olds who commit misdemeanor crimes will be considered juvenile delinquents and go to Family Court. Misdemeanors include a wide range of offenses, such as thefts of under $1,000, drug possession for personal use and assaults that cause minor to moderate injuries.
In Family Court, offenders have their criminal records sealed after the completion of their sentence, and sentences are limited to 18 months in juvenile detention facilities. Similarly, restitution is capped at $1,500.
What’s more, in Family Court, the offender’s guilt is determined by the judge, not a grand jury.
According to RaisetheAge.com, 72 percent of all 16- and 17-year-old offenders are charged with misdemeanor crimes.
Wojtaszek also said the majority of local young offenders face minor charges, but that serious felonies are not rare, either.
“It’s not uncommon. We don’t see them every day, but it’s not uncommon,” she said.
Misdemeanor offenders and felony offenders who receive a definitive sentence of less than one year, and are sentenced before turning 21, will be sent to a specialized secure juvenile detention facility. These facilities must be certified with the state Office of Children and Family Services
Those sentenced after turning 21 will go to an adult jail.
Felony offenders who are sentenced before turning 18 will be sent to an adolescent offender facility, operated by the state’s Department of Corrections and Community Services, for two years or a lesser portion of their sentence. If they are sentenced after their 18th birthday, they will go to an adult correctional facility.
In Family Court cases, convicted youths will be placed in facilities operated by local Departments of Social Services or OCFS. Misdemeanor sentences are limited to one year and felonies to 18 months, though that may be extended for additional time up to the youth’s 21st birthday.
Family Court judges may also impose three or five year sentences for youth who committed certain felonies. These youthful offenders may remain in OCFS facilities until they turn 23.
Prior to sentencing, juveniles with cases in criminal court will be held at juvenile detention facilities certified by the OCFS. For Family Court cases, juveniles will also be kept in secure and non-secure juveniles detention facilities.
But the OCFS website lists only 12 certified facilities across the state. Of those, only four are considered secure facilities — one in Thompkins County (Finger Lakes region), one in Orange County and two in Columbia County (Hudson Valley region).
There are no OCFS-certified specialized secure juvenile detention facilities.
Monica Mahaffey, assistant director of communications for OCFS, said state officials are working to identify the best facilities for holding juvenile offenders throughout the state.
“Under raise the age, all these facilities will be examined, and determinations will be made over where youth will be held,” she said.
Juveniles will not be allowed to be kept in segregated areas of county jails once the law goes into effect.
Currently, 16- and 17-year-olds charged with serious felonies serve their sentences in juvenile detention facilities up until the age of 18.
Prior to the sentencing, these teenage offenders are often kept for periods in local jails, but are segregated from adult populations.
Deputy Chief Daniel Engert says that in his 26 years at the Niagara County Jail, offenders below 18 years old have always been held in a cell-block separate from adult offenders. They have a separate recreation area, a separate common area and only interact with adult inmates during transportation to court appearances, Engert said.
The jail also brings in BOCES teachers to provide classes to these juvenile inmates.
With the passage of the Prison Rape Elimination Act in 2003, all jails were required to separate below-18 inmates from adults. Prior to its passage, New York required jails to keep those below 19 separate. The state dropped that threshold when PREA passed, Engert said, to avoid the logistical difficulties of operating a third separate space exclusively for 18-year-olds.
“For anyone under 18, we’re required to separate them and provide education,” Engert said. “Where the challenge is how we separate they are.”
In the case of Niagara County Jail, juvenile inmates are kept in a section of the old jailhouse, where cell-blocks are situated along a catwalk.
That means adult inmates can see and shout across to the cellblock housing the juveniles, and vice versa.
“You can see into the other housing unit, you can yell,” Engert said.
Often teenage inmates exhibit problems with immature and violent behavior, according to Engert.
“They present their own unique challenges,” he said.
Engert said the sheriff’s office still has questions on the law, such as whether deputies will be responsible for transporting juvenile offenders to court dates.
“There’s still some questions that we have,” Engert said. “It’s hard to say what the complete impact is because the full details haven’t been released yet.”
But separating juvenile inmates from adult populations does not guarantee them more humane treatment. In passing the law, Cuomo was joined by the father of Kalief Browder — a young Bronx man who was arrested at 16 for allegedly stealing a backpack.
While awaiting trial, Browder spent three years incarcerated at Riker’s Island, mostly in solitary confinement. Browder committed suicide in June 2015, about two years after his release, after suffering mental health issues that were often blamed on the conditions of his imprisonment, particularly the long stays in solitary confinement. He was 22.
The biggest impact of raising the age likely will be felt by county probation departments. Under the law, adolescent and juvenile offenders — again, typically 16- and 17-year-olds charged with serious felonies — will receive the more thorough assessments that the state currently mandates for youth offenders charged in Family Court.
“Probation does have a lot of work ahead of it,” Niagara County Probation Director John Cicchetti said.
Cicchetti explained that the youth assessments involve lengthier interviews, interviews with the offenders’ parents or guardians, devote more time to going over a case plan and take into account the risk factors for the offender committing another crime. The department also must follow up with youth offenders every 90 days, while with adults, it is only every six months.
What’s more, in criminal court, youth assessments are rarely done unless the offender is convicted or placed on probation. When it comes to youth offenders processed in family court, pre-sentencing investigation are always performed.
Of the 238 juvenile offenders, typically 16- and 17-year-olds, who were arrested in the county in 2015, only about 50 were sent to the probation department for a pre-sentencing investigation.
“They will have the services that are currently available to people below 16,” once raise the age becomes fully effective, Cicchetti said.
Those case services can include referrals to service providers, such as mental health care professionals and substance abuse counselors. Often these case planning services divert teenage offenders out of the criminal justice system. Cicchetti said their aim is to address the issues that led to the teen’s criminal activity.
“Our goal is to provide services to resolve the issues that brought the individuals to us and if appropriate avoid going to court,” Cicchetti said.
Wojtaszek commended the effort, but warned that to be effective, the state would have to ensure funding is available.
“The idea is to expand these programs to 16- and 17-year-olds, which is a good idea if it’s properly funded,” she said.
Cicchetti acknowledged that case planning and pre-sentencing investigations are especially time-consuming for the department. By his estimates, the assessments for youth take twice as long as those for adults.
“The influx in services will stress our current staffing levels,” he said.
Cicchetti declined to speculate whether additional staffing would be needed at the department. He said it’s premature to make that determination. The county currently employes 25 probation officers, including five dedicate solely to family court.
But Wojtaszek and other elected officials, including Assemblyman Mike Norris, worry that the law will essentially amount to another unfunded mandate out of Albany. They both are calling on New York state to fund any increases in staffing, facilities or any other resources necessary to accommodate the new rules.
“If they want to make expanded services available to a larger youth population, they need to make sure these services are there,” Wojtaszek said.