October 25, 2017
Raise the Age: Turning a Reform Law Into a Reality
By Elizabeth Powers
In April 2017, a landmark new law made New York the 49th state to acknowledge that 16- and 17-year-olds should not be automatically considered adults in the eyes of the criminal justice system. It was a hard-won victory for reformers and for many criminal justice practitioners, who had long decried the high human costs of setting the age of criminal responsibility so unreasonably low.
While important, however, enacting this “raise the age” legislation was just the first step. Going forward, we need to make sure that the entire justice continuum, from diversion programs as an alternative to prosecution through services for those re-entering the community after incarceration, have the resources needed to implement this reform effectively, on the fast timetable set out by this new law.
First, some background: Prior to the passage of the raise the age legislation, New York and North Carolina were the only states to automatically charge all 16-and 17-year olds as adults, regardless of the severity of the offense. While the majority of 16- and 17-year-olds arrested in New York are charged with misdemeanors, they all are processed in adult courts, detained in adult jails, and, if found guilty, burdened with adult convictions.
Over the next two years, that’s going to change. In fact, one of the law’s provisions, allowing New Yorkers of all ages who’ve gone at least 10 years without a criminal arrest to seal certain prior criminal convictions from public review, already became operative this month.
Here’s how raise the age will unfold. One year from now, in October 2018, the age of criminal responsibility across New York State will be raised to age 17; in October 2019, it will go up to 18. The law also requires fast action by the correction system in New York City, where the notorious case of Kalief Browder, a 16-year-old arrested for a minor theft who spent nearly three years in the City jail on Rikers Island before his case was dismissed for lack of evidence, was a powerful stimulus for the raise the age reform push. By next October, 16- and 17-year-olds may no longer be held on Rikers Island.
As the law takes effect, how law enforcement and the courts treat young people will change significantly. Police officers will, for example, be legally required to notify parents when they arrest their 16- and 17-year-old children. The law will also direct them to inform these young people – and parents, if they’re present – of their Miranda warning rights. Current guidelines for appropriate questioning of youth under the age of 16 will apply to 16- and 17-year-olds as well.
Young people who formerly would have been charged with misdemeanors will instead be charged with acts of juvenile delinquency. Their cases will be handled in Family Court, with access to the probation “adjustment” process that diverts appropriate cases from court. The cases of those charged with non-violent felonies will begin in a newly formed “Youth Part” in the adult criminal court system with a presumption that, barring extraordinary circumstances, those cases will then be moved to Family Court. Youth charged with violent felonies (identified as “adolescent offenders” under the new law) will remain in this Youth Part of adult court, subject to adult sentencing, although under some criteria their cases may be transferred to Family Court.
In the five boroughs, those whose cases go to Family Court will, when necessary, receive juvenile detention or placement overseen by the Administration for Children’s Services (ACS). During the pre-trial period, adolescent offenders in the adult court system will be housed in specialized secure facilities jointly operated by ACS and the City Department of Correction. Youth sentenced in adult court cases will be housed in adolescent offender facilities managed by the State Department of Corrections and Community Supervision with the assistance of the State Office of Children and Family Services. Similar provisions for removing youth from adult correctional settings will be made in the other 57 counties in the state as the raise the age law takes effect.
The big, immediate challenge is ensuring that all jurisdictions around the state have sufficient resources to properly implement these changes. The goal must be to keep young people from being unnecessarily drawn into a criminal justice system that has, historically, often done more damage than good to their future lives. That includes funding diversionary programs and a robust continuum of detention and placement alternatives, including out-of-home placement options and post-release services. There also must be appropriate staffing, training, and preparation in all the systems with which justice-impacted youth interact. Policies and procedures at all levels must be age-appropriate, and mark a sharp turn away from such deplorable past practices as solitary confinement, chemical restraints, and lack of developmentally appropriate interventions to address mental health needs and histories of trauma. There also must be efforts to meet the educational needs of justice-involved young people, and service planning that includes the participation of family and support networks. This will be particularly relevant for the yet-to-be-developed adolescent offender facilities operated jointly by juvenile justice providers and adult corrections.
The passage of raise the age marks a monumental recognition that young people are not best served by the adult justice system. Advocates must persist in pushing for further reforms in this vein, including raising the minimum age of arrest – currently set at age 7 – and continuing to advocate for changes for youth who remain in the adult justice system – such as through age-appropriate sentencing and protections from the collateral consequences of criminal justice involvement. Raising the age in law is not the final step. Advocates for reform must remain vigilant in ensuring that this significant shift in New York’s justice system reaps the full potential for youth.