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New York May Stop Charging All 16- and 17-Year-Olds as Adults This Week

 A building on Rikers Island, from the complex's parking lot. 
A building on Rikers Island, from the complex's parking lot. 
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DNAinfo/Katie Honan

NEW YORK CITY — When you're 16 years old, you're too young to vote, to buy alcohol or a lotto ticket, or even see an R-rated movie without a parent — but in New York, you're old enough to be locked up in Rikers Island, a place Gov. Andrew Cuomo recently called "savage, inhumane and revolting." 

New York remains one of two states — the other being North Carolina — that prosecutes all 16- and 17-year-olds as adults, no matter what the crime.

That means teens — from those caught shoplifting to those who have committed more severe offenses — are thrown into the adult criminal justice system where they can be saddled with a criminal record for the rest of their lives, and could do time in Rikers as they await trial or to serve a jail sentence.

However, that could be about to change. After a years-long push to raise the age of criminal responsibility to 18 years old in New York, a new policy could finally come as soon as April 1, when Andrew Cuomo's Raise the Age bill might be passed as part of New York state's budget. 

The governor's bill, first proposed in 2015, would move the cases of all 16- and 17-year-olds charged with misdemeanors and nonviolent felonies to family court, where young people are handled much differently than in the adult criminal justice system.

The State Assembly has managed to pass its own, more progressive version of Raise the Age legislation, but it stalled in the State Senate, where Republicans have been averse to the proposal.

But advocates and lawmakers on both sides of the issue say the budget measure has recently gained the momentum it needs to actually make it through the last-minute scramble of negotiations.

Democratic state lawmakers — including Speaker Carl Heastie, who championed the Assembly bill — have continued to push for Raise the Age, calling it a "top priority" in the budget talks.

"It is unconscionable that 16- and 17-year-olds are still being sentenced to adult correctional facilities where we know they do not belong," he told DNAinfo New York.

And for the first time, Senate Republican leadership — and the Independent Democratic Caucus, a group of breakaway Democrats who work with Republicans — have said they're committed to working through the "complex" issue that has become a priority for Cuomo.

Republican State Sen. Patrick Gallivan, chair of the Committee on Crime Victims, Crime & Corrections, previously opposed Raise the Age, but is now working towards compromise.

"I am hopeful that we can reach an agreement this week," Gallivan said — adding that any bill he signs on to must still be mindful of protecting the community.

"While I recognize that, 16- and 17-year-olds are different from adults and that changes to our current system may be appropriate, public safety is paramount," he added.

Support for Raise the Age has soared statewide, fueled in part by horror stories such as that of Kalief Browder. Arrested at the age of 16, the Bronx teen spent three brutal years in Rikers, mostly in solitary confinement, as he awaited trial for allegedly stealing a backpack because his family couldn't afford the $3,000 bail. 

Browder's case was eventually dismissed, but the trauma of being put into a dysfunctional adult system was already done, his relatives said. After his release, in 2015, he killed himself.

Ordeals such as his, paired with scathing reports of violence in Rikers, have led to several criminal justice reforms in the city, including ending solitary confinement for young people under 21 and the decision last year to eventually move 16- and 17-year-olds off of Rikers. But according to the city, without Raise the Age legislation, it will take at least four years to get the nearly 1,000 teens who cycle through the jail each year off the island, because new facilities would need to be built and older teens couldn't be housed with 14- and 15-year-olds.

The bill still faces opposition though — both from officials who say it's "soft on crime," as well as advocates and Democratic lawmakers who say it doesn't go far enough to end juveniles being charged as adults.

Currently, the bill does not shield juveniles who have been charged with violent offenses, a term that encompasses many more crimes than the most serious offenses like murder or rape — charges that are not common among teen arrests, advocates say.

For example, Browder was charged with second degree robbery for allegedly stealing a backpack, which is considered a violent crime under New York law. Getting into a fight with another teen or grabbing an iPhone from someone’s hand can also be considered a violent crime, and so a number of young people could likely still be treated like adults.

Other critics of the bill, including Republican state lawmakers and a variety of enforcement officials, have cited concerns that it would overburden family court or threaten public safety.

“What you call Raise the Age, I call the Gang Recruitment Act,” Republican Assemblyman Al Graf said last month, according to the Times Union, during a debate over the issue. “This is a great tool to be able to recruit younger members of our community to enter gangs.”

Onondaga County District Attorney Bill Fitzpatrick echoed Graf's opinion, arguing that sending kids to family court would not leave prosecutors with first discretion over handling a case, and could give kids a "pass" on criminal behavior.

“They’re not little shoplifters or fare beaters, they’re gangsters, they’re murderers, they’re rapists, they're burglars, they’re violent thugs and they don’t deserve to receive a pass from the New York State Legislature," Fitzpatrick, whose county jail was recently ordered to to stop placing 16- and 17-year-olds in solitary confinement by a federal judge, said at a recent press conference.

Regardless of what Albany decides on April 1, it's likely the debate over how best to treat young people in the criminal justice system will continue.

“We’re Arguing About Treating Children Like Children”

Seven years after Luis Padilla left Rikers Island, he said he still can't fully shake the three terrifying months he spent behind bars.

"You're scared when you're locked in your small box all day, feel like you're going to go crazy, and you're scared when you're with other inmates, who want to jump you, you’re scared of the correction officers, who I saw beat people," said Padilla, who was sentenced to the jail at age 16 on an attempted robbery charge for helping a group of teens steal bags and iPhones from people. "I threatened to kill myself in there, it's a nightmare."

At 16, Padilla said, he was hanging out with the "wrong crowd" in Staten Island.

"I grew up in not so great neighborhoods, and I started doing dumb things... I take responsibility for that, but that's what I grew up around," he said, adding that he's worked hard to turn his life around. "I'm one of the lucky ones, kids have ended up in there for years, just waiting for a trial. It's just not right."

Advocates and lawmakers in favor of Raise the Age say getting kids out of adult jails, and into juvenile facilities and courts, is not about being "softer" on crime, as some opponents say. Instead, it's about doing what works to keep young people from re-offending and getting sucked back into a cycle of crime — a move that ultimately increases public safety.

Last year in New York City, of the 14,500 16- and 17-year-olds who were arrested, nearly 85 percent were charged with misdemeanors and nonviolent crimes, according to statistics from New York State Division of Criminal Justice Services. (Statewide, 24,625 teens of that age were arrested, with 86 percent on charges of misdemeanor and nonviolent crimes).

Children who are processed in the adult criminal justice system are 34 percent more likely to be re-arrested for more violent crimes than those charged with similar crimes who go through the juvenile system, according to a study from the Centers for Disease Control and Prevention.

Young people in the adult system are also the most at-risk population for prison rape, have a greater chance of being beaten by staff and are 36 times more likely to commit suicide in adult prison than in a juvenile facility, studies show.

“I can’t say this enough, 16 and 17-year-olds are children — we’re arguing about treating children like children, and it’s just absurd,” Tami Steckler, the attorney-in-charge of the Juvenile Rights Practice at The Legal Aid Society, recently told DNAinfo. “It’s completely wrong to think that the harsher you treat a kid, with the less services and less understanding of his adolescent brain development, the safer we are. That’s backwards.”

Proponents of Raise the Age point to a host of studies that show adolescent brains are not wired like adult brains. Teens are more likely to be impulsive and take risks without fully comprehending the consequences. They’re also more likely to have long-term effects from the trauma of incarceration — and their malleable brains are more receptive to rehabilitative programs, like ones offered through the juvenile justice system. Some studies show that the brain isn’t fully matured until the age of 25.

States including Connecticut and Illinois, which had already raised their age of criminal responsibility to 18 in previous years and saw drops in juvenile crime, are now considering raising the age to charge one as an adult to the age of 21.

The Differences Between Family Court and Adult Court

While the juvenile justice system isn’t perfect, and has had its own reforms, family court is meant to put a child on a better path in life, rather than simply administering punishment and a criminal record that could ruin a young person’s future, advocates say.

From the moment of arrest, there’s a difference in the way defendants are treated in family court and criminal court. A juvenile’s parent or guardian must be notified before they are allowed to be questioned alone by authorities. Parents are supposed to be involved through the whole juvenile justice process. Most kids charged in family court never actually go before a judge — because the majority are accused of low-level crimes, their cases are handled by the Department of Probation.

The vast majority of kids in the juvenile system aren’t left with a criminal record that can affect future job prospects, getting into college, buying a house, or getting themselves and their families evicted from the city’s public housing. There’s also no bail requirement in family court, and for those who are detained, there are strict rules about quickly moving their case along before a judge.

Justice Edwina Richardson-Mendelson, a former Family Court administrative judge, who, for the past several years, has taken the bench in criminal court, oversees Manhattan's “Youth Part,” a separate courtroom in adult criminal court specifically designated to deal with felony cases for young people under the age of 19.

With experience in both systems, Richardson-Mendelson says she would like to see all young people under the age of 18 go through family court.

“Ultimately, there’s just a wider array of services to help young people in family court, whether it's drug problems, mental health issues or problems within a young person’s family,” Richardson-Mendelson said. “I think we have the robust studies to show now that the adolescent brain is different from adults, and they have better outcomes in the family court system — that’s better for society, and makes us all safer.”

“I think there really is more of consensus these days that 16-and-17 year olds should not be in the adult system, but there’s a lot differences of opinion about what to do with them,” she added.

One of the young people who went through the juvenile system, Jim St. Germain, said having his case in family court, rather than the adult system, saved his life.

As a young teen in Crown Heights, St. Germain said he “was struggling and getting into a lot of fights,” in a neighborhood where gang violence and drugs were part of the way of life. At 15, he was arrested on felony drug charges, and he was sent into a local Brooklyn detention program, a small group home.

“It wasn’t far from home, but it was a completely different environment,” said St. Germain, now a 28-year-old graduate of John Jay College and a juvenile justice advocate. “I didn’t like all the strict rules at first, but it was a place where they were constantly reinforcing positive behavior, there was intense teaching, and role-modeling.”

When his sentence was finished, he actually asked the judge to let him stay in the program one more year, until he was 18.

“It was an unusual request, but I felt like I was finally making progress, and I was getting a lot of support,” he said. “Could you imagine someone asking to stay in Rikers for another year?

As Raise the Age has been slow to take hold over the years, New York City’s adult justice system has put a series of measures into place that many defense lawyers and advocates say offer safeguards for young people, especially those facing low-level charges, which constitutes the majority of teen arrests.

Young offenders up to the age of 19 are currently eligible for a youthful offender status — called a YO. That means a teen’s record can be sealed at the discretion of a judge. It's usually used in cases of a first-time misdemeanor and can be used for felonies.

A YO status does not, however, stop someone from being sent to Rikers — and only helps seal a record after a young person has completed a sentence. Teens are also generally only afforded a YO status once, and any subsequent arrests could result in a permanent record.

With the YO status being discretionary, particularly with felonies, teens can fall through the cracks.

Kate Rubin, the director of policy and strategic initiatives at Youth Represent, a nonprofit that helps young people who've been through the criminal justice system, said she worked with one client, who’s now 29 years old, to get an assault charge retroactively sealed.

“She was 17 when she got into a fight with another teenager, it was her only arrest, ever — but her lawyer didn’t ask for the YO, and we’ve been fighting for years to get the record sealed,” Rubin said. “Because of this conviction, she’s been denied numerous jobs, and now, as a mother, can’t get into Section 8 housing [public housing].”

'Progressive' New York Lags Behind

“How do we let this happen?” Cuomo asked at a Raise the Age event in a Manhattan synagogue earlier this month, speaking about the injustice of charging 16-and-17 year olds as adults in a state he called a champion of progressive politics. “Well in some ways it’s the old painful story. These are poor people who are members of minority groups who have long histories of being discriminated against. They’re powerless.”

New York has, for about 200 years, charged 16-year-olds as adults. But the resistance to change, while most every other state in the country has moved forward, is largely the result of deeply entrenched attitudes about race, many advocates and lawmakers told DNAinfo.

In New York, 77 percent of 16- and 17-year-olds arrested were black or Latino in 2015, as were 95 percent of the teens who ended up incarcerated in New York City.

Democratic Queens Councilman Rory Lancman, who spent six years in the State Senate and has  been advocating to expand legal protections for 16- and 17-year-olds in the city, said race is a huge factor in the debate.

“If you see a black or brown kid from the city as the 'other,' someone who you don’t identify with, and you layer on top of that a long history of racial inequality, to put it mildly, you’re not going to empathize with that kid about what’s going on with him, what this criminal justice system will do to him,” Lancman said. “He’s just the 'other,' or some form of predator, and that’s just it.”

As a comparison, Lancman points to the incongruity between the way the 1980s crack epidemic, which largely affected minorities in cities, was handled, versus today’s explosion of opioid abuse. “We dealt with the crack epidemic with Draconian laws and sentences for drug offenses, now white people are taking opioids and it's being discussed as a health problem.”

Youth Represent's Rubin put it more bluntly.

“It’s absolutely the case that if white 16- and 17-year-olds were getting routinely prosecuted and convicted and sent to adult jails and prisons, New York State would have raised the age years ago,” Rubin said. “That’s the truth.”

The Fight Over the Details

Debate over Raise the Age legislation has partially languished over the years because some fear the protections for the majority of young people won’t be much better under whatever version of the Cuomo plan is hashed out.

For example, there's a central debate over which charges will automatically qualify kids for family court, and which charges will send children to a "youth court,"  a family court and adult court hybrid that Republicans have pushed for — akin to judge Richardson-Mendelson's Youth Part in criminal court.

Many advocates and Democratic lawmakers want a wide swath of cases, at minimum all misdemeanors and nonviolent felonies, to move directly to family court.

Republican lawmakers —who say that "two-tiered" system of dealing with young people could help address their public safety concerns, and the possibility of overburdened family courts — want district attorneys to have the choice on whether cases belong in criminal court or in family court, in lieu of all nonviolent cases defaulting to family court.

"We give our DAs and judges a lot of discretion to make decisions now, and I think ultimately if we’re to do anything on this — they are the professionals who do this for a living,” Gallivan told Politico this week.

There is also a debate about where 16- and 17-year-olds should serve time.

Some officials think juveniles should be steered into existing juvenile detention systems, which are run by New York State's Office of Child and Family Services. Others want to build separate centers specifically designated for 16- and 17-year olds, out of adult prison, but run by the state Department of Corrections.

In opposing the bill, a number of law enforcement officials, including Ulster County District Attorney Holley Carnright have said that the state already has enough protections for young people in the adult system — and the additional protections are unnecessary and could be dangerous.

At a recent press conference, Carnright said that by "decriminalizing" the behavior of those under 18 years old could increase gang recruitment, saying gangs would have a bigger pool to recruit from, with less threat of penalty.

“They actually recruit young people to go into the gang to commit crimes on behalf of the gang, knowing that the youth will not be prosecuted aggressively,” he said.

In the city, where the majority of the state's young people are arrested, both Manhattan District Attorney Cyrus Vance and acting Brooklyn DA Eric Gonzalez have spoken in favor of efforts to raise the age.

The Bronx DA said she's in favor of raising the age for kids charged with misdemeanors and violations, while the Staten Island DA said he "opposes problematic aspects of the proposed legislation as drafted," but did not elaborate.

Whatever ends up passing in the budget, the "bottom line" hope is that the bill will keep hundreds of kids across the state from being jailed alongside adults, and it should ensure that the majority of teens charged with non-violent crimes end up without a criminal record, said Youth Represent's Rubin.

"Regardless of the imperfections, we can't lose sight of who this bill will help," Rubin said.