New York is one of only two states left in the nation that charges any youth who
has committed any crime as an adult
at the age of 16. Furthermore, children as young as 15, 14 and even 13 years of
age are automatically tried as adults when charged with certain felony
offenses. The youngest age that a child can be brought to face court charges in
New York is seven.
The laws that allow children to be charged, tried, and
sentenced as adults are ugly relics of a bygone era. Sensational media coverage
of a few horrific crimes, a dramatic spike in juvenile murders during the crack
cocaine era, and pseudoscientific extrapolations of juvenile crime data were
enough to create a racially tinged hysteria over juvenile “superpredators.” Using
the slogan “Adult Time for Adult Crime,” lawmakers rushed to enact the toughest
possible criminal justice sanctions for young people who broke the law.
Today’s science demonstrates how wrongheaded
this approach was. Breakthroughs in brain development research now show that the parts of the brain responsible for impulse control and
consequential thinking are still forming during adolescence, suggesting that most law-breaking behavior by adolescents has more to do with teenage
immaturity than criminal orientation. Furthermore, multiple studies show that trying youth in the adult justice system - far from being a deterrent to future crimes - actually makes them
more likely to re-offend than if they
were tried for the same crimes in the juvenile justice system. Youth placed in
adult prisons are far more likely to be abused and attacked, and far less
likely to receive services to help them mature out
of delinquent and antisocial behavior.
Recognizing these facts, a growing movement in New
York has been calling on lawmakers to
Raise the Age of criminal responsibility in New
York. In his
State of the State address, Governor Cuomo responded to these calls by announcing his intention
to create a Commission on Youth, Public Safety and Justice t
o tackle raising the age of criminal responsibility, stating simply and succinctly: "Our juvenile justice laws are outdated. Under New York State law, 16 and
17 year olds can be tried and charged as adults. Only one other state
in the nation does that; it’s the state of North Carolina. It’s not
right, it’s not fair – we must raise the age. Let’s form a commission on
youth public safety and justice and let’s get it done this year."
This is a welcome start and
good news for all New Yorkers who care about young people, public safety, and
strong communities. It looks increasingly likely that New York will soon join 48
other states that recognize how backwards it is to treat 16 and 17 year olds as
adults in the criminal justice system. Yet while there is agreement on many
fronts that raising the age of criminal responsibility is good public policy,
there is by no means consensus on the best way to get there. Some advocates
propose raising the age for all youth and all crimes, while others call for an
incremental approach that starts with misdemeanor offenses and works its way
towards more serious charges.
I am strongly in favor of raising the age of
criminal responsibility for all youth, regardless of offense. My stance,
however, is based on a fundamental principle that is usually the least
considered and the last discussed: the importance
and necessity of building community
capacity to engage young people whose behavior brings them to the attention of
the justice system. The problem is simply not how our justice system treats children. The root of the problem is that we use the justice
system as the primary responder to children who misbehave, replacing family and community supports as the agent of change for our young people. Raising the age of criminal responsibility only makes sense if
we rebuild the community infrastructure to support, serve and hold accountable
young people who run afoul of the law. Here’s why.
The juvenile justice
system cannot handle all the youth currently processed through the adult system.
Currently, some 40,000 youth ages 16 and 17 are arrested and tried as
adults in New York City each year, 75% of whom are charged only with
misdemeanors. By contrast, less than 10,000 juveniles (ages 15 and below) are
arrested. Adding 40,000 additional cases to a Family Court system that currently
handles a quarter of that caseload is untenable. This is why some proposals
suggest raising the age incrementally, so as not to crash the Family Court
system by flooding it with thousands of new cases. Start with non-violent
offenders, the logic goes, and slowly add more youth as the Family Court gains
the capacity to handle more cases. Or create special adolescent court parts
within the existing Criminal Court system. Yet this is exactly the opposite of what
needs to happen, as most of these young people should not even be in the
justice system in the first place.
The juvenile justice
system should not handle all the cases processed through the adult system – it
shouldn’t even handle most of the cases currently in its own system. While the juvenile justice system is better for youth when compared with the adult criminal justice system, at the end of the day it remains a failing system. Despite many long overdue
reforms, New York City’s juvenile justice system is still more harmful than it
is helpful to young people. The more contact a youth has with the system, the
worse the outcome, leading the wisest reformers to minimize the duration of time a youth remains in the system. The proponents
of an enhanced juvenile justice system for young adults remain guilty of a
fundamental error in thinking: they still see court as the answer to children who misbehave. The majority of children in
the juvenile justice system are not there because they are criminals. They are
there because shortsighted lawmakers and administrators have decided that criminal justice should be the primary response to youthful misbehavior. As
Albert Einstein put it, “we cannot solve our problems using the same level of
thinking that created them.” Likewise, we cannot undo the criminalization of children by creating better criminal justice responses to their behavior.
Most of the behavior
that brings young people into the juvenile justice system is normative adolescent
behavior that never needs to come to the attention of the court. Spend a
day in NYC Family Court and you will be struck by the number of youth who have
been arrested, prosecuted, and are now being monitored by the courts for
behaviors such as school fights, marijuana possession, shoplifting and other behaviors that, while less than desirable, are
pretty much par for the course for adolescents. Do these young people really belong
in any justice system? Again, they
are there not because they represent a threat to public safety, but because of
policy approaches that chose law enforcement as the primary responder to youthful misbehavior. The last mayoral administration decided that the correct way to deal with youth in low-income communities of color was to flood public schools
with police officers and indiscriminately stop-and-frisk anyone who “fit the
description,” resulting in a whole cohort of youth of color becoming system-involved for behaviors that their wealthier, whiter counterparts were equally likely to engage in. The research continuously shows that adolescents across the
country - regardless of race, ethnicity or class – engage with equal frequency
in behaviors such as fighting, smoking marijuana, carrying weapons, and
shoplifting. Most youth are allowed to grow out of these behaviors with the
appropriate community supports without ever getting entangled in the justice
system. Yet low-income youth of color are far more likely to be arrested,
prosecuted and sentenced for these offenses than their white counterparts. Connecting
youth who are acting out to community supports – and where necessary, treatment
– produces far better outcomes than arresting and prosecuting youth for these
behavior issues. It makes no sense for New York City to waste resources on
putting these minor offenders through the juvenile justice system.
Even many of the more
serious offenses that youth commit are better dealt with by community
interventions than by processing youth through the criminal justice system. It
is no secret that there are still far too many assaults and robberies committed by
young people in New York City, and that violence among youth remains unacceptably high. Yet while these crimes are categorized as violent,
many of these behaviors – though unquestionably antisocial and harmful – are
less frightening than the label put on them. Many robberies are iPhone
snatchings in which no one is physically harmed. Gang assaults can be three
young people beating up another one in retaliation for a fight that happened
last week. Clearly, these behaviors cannot simply be shrugged off as adolescent
mischief as they cause real harm to real victims. Yet even these crimes are better dealt with through a restorative
justice approach that requires offenders to take responsibility for their
actions and repair the harm they have inflicted on victims. Most youth violence is committed by youth against youth in the same neighborhood, and can dangerously escalate to more serious levels of retaliation if not dealt with through a process that mediates the conflict. And this is far
more likely to happen in a neighborhood setting where youth are held
accountable by community members than it is in court, or in detention centers, where youth violence escalates. When
challenged to go through the highly demanding process of making things right and facing those harmed,
young people grow morally in ways that develop them into
socially conscious adults. When they are put through a system designed for
adult criminals, they are far more likely to become adult criminals.
Effective community
interventions exist but they must be taken to scale if we are going to
responsibly keep young adults out of the justice system. There are a host
of programs and interventions currently operating in New York City that have
demonstrated effectiveness in keeping young people from re-offending, whether
they have committed youthful infractions or serious offenses. Most of these
programs fall under the label alternative-to-incarceration programs, as they
provide the courts with options to keep a young person out of jails or prisons.
New York has done an admirable job of greatly expanding these programs in ways
that have facilitated the striking drop in youth incarceration in the state
over the last few years. These programs further public safety, cost far less
than incarceration, and are effective not only in reducing re-offending, but in
helping youth grow into healthy adults. But these programs need to be scaled up and need to become the norm, rather than the alternative. They need to exist in every neighborhood where there are high levels of adolescent arrests and connect more seamlessly with the organic community support systems that will engage youth for the long term.
Building community
capacity to divert youth from system involvement on the front end – not
increasing court capacity to serve adolescents – is the right way to raise the age in New York. New York City’s
alternative to incarceration programs are effective. But for the most part, these programs
still necessitate initial court involvement. A young person typically needs to
be arrested, charged, and sentenced in order to get the services they need.
Some interventions, like CCFY’s
South Bronx Community Connections program,
divert youth at Family Court intake before they ever get to a judge, but these
are few and far between. If court involvement is a prerequisite for getting
services, this presents a technical problem. The Family Court simply cannot
absorb 40,000 16 and 17 year olds into its existing system and connect them
with the correct services unless there is a massive increase in court resources
– more judges, more prosecutors, more probation officers, more programs. Yet, this
type of expansion of criminal and juvenile justice resources is exactly what created this
beast of a system in the first place, and
must
not be repeated. The answer is to not to increase court resources, but to build up the many
front-end diversions that can keep youth from ever coming through the front
door of the court. This means investing in arrest diversion programs, expanding
community mediation programs that help schools handle student fights, and
investing in front-end community mentoring programs that connect youth to
appropriate resources in their own neighborhoods. It also means changing the policies that bring so many youth into the justice
system, The NYPD can no longer have
carte blanche to arrest youth in schools, or to bring them in for possession of
small amounts of marijuana.
Building community
capacity is not just the correct way to to Raise the Age of criminal
responsibility in New York, it’s the right thing to do. We might be able to
build a better juvenile justice system to serve the additional 40,000 youth who
would come through the doors of the courts when we raise the age. We could build
bigger courthouses and hire more justice system professionals. Yet to simply
increase system capacity would be a moral indictment of our society and proof
that we still have not learned our lesson. Using the justice system to respond
to the needs of the poor and disenfranchised is exactly what
has fueled the current prison epidemic and the mass incarceration of people of
color in our society. Using prisons in place of drug treatment, mental health
services and employment programs is what has propelled the rise of the adult
prison population from 200,000 to 2 million over the last 30 years, mostly on the backs of low-income people of color.
Using the juvenile justice system to respond to needs of children of color in
under-resourced communities is equally injurious. Are we still so limited in
our thinking, that the only way we can imagine poor youth of color accessing
the services is through court
involvement? Have we consigned ourselves to the inevitably that black and brown
children in low-income communities can only get what they need if it is
brokered through a juvenile justice system? Do we think so little of our
communities that we only expect children in trouble receiving attention
from police, prosecutors, and probation officers, and not from families, counselors, clergy, and community members? This is not the society I
want to live in, nor is it the world our children deserve.
We can raise the age of criminal responsibility in New York
for all youth, and we can do it the right way. But we can only do this by
making massive new investments – not in more juvenile justice technologies –
but in the community infrastructure needed to keep youth from perpetual
involvement in these systems. This will require bringing a whole new level of
leadership to the process, most importantly equipping the families, neighborhood
faith and community leaders, and the young people themselves, who will have to
BE this new community infrastructure. It requires millions of
dollars of investments in leadership development, training, and program services. It will take time and will be a slower and more complicated
process than simply expanding the juvenile court - yet it will still be far
less costly than increasing the capacity of a broken justice system.
Furthermore, these efforts will not only build the infrastructure to address youthful
misbehavior, but to properly nurture and guide young people into
healthy adulthood. The realist in me knows that in the short term, we will still need a juvenile justice system that provides a higher level of supervision and
accountability for the incredibly small number of young people who are truly a
public safety risk, and require more than community interventions. Yet, the vast
majority of young people are far better served by strong, organized communities
that can provide a lifetime of support, guidance and accountability. It is no
less within our ability to build this type of community infrastructure than it
is to maintain a $40 billion per year prison industry that incarcerates 2
million people and has essentially become a punitive system of social control.
If we do any less, we are only doing what Michelle Alexander, author of the New Jim Crow, calls “tinkering around the edges of this corrupt system… and we
ought not delude ourselves into thinking that something truly transformational
is even possible.” Yet if we Raise the Age Right, which means replacing the
justice system with a community infrastructure that can truly meet the needs of
our young people, then we will be achieving something worthy of our children.