Raising the Age Right in New York

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 to tackle raising the age of criminal responsibility, stating simply and succinctly: "Our juvenile justice laws are outdated.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.