Raising the Age

The Drive to Change How Teenagers Are Prosecuted In New York Courts

On September 28, 2006, just one day before his 18th birthday, Ismael Nazario was arrested for accosting a man and stealing his cellphone in Ozone Park, Queens. He was out on bail for a similar charge in Brooklyn that had previously landed him in Rikers Island for three months. This time, he was going to prison.

“I didn’t know what to expect,” said Nazario, now 26.  “In my neighborhood I would see guys coming back and forth from Rikers and they came back with big, nasty cuts. I was like, damn, what did I get myself into?”

In another state, that one day before Nazario turned 18 would have made the difference in how he would be prosecuted. But not in New York State. In New York, 16- and 17-year-olds who commit any criminal act, from shop lifting to murder, are prosecuted and penalized as adults. It’s one of only two states—the other is North Carolina— where the age of criminal responsibility is under 18. Only these two states allow police to question teenagers without parental consent or even notification and make their court records public.

Youth advocacy organizations have long discussed the negative effects incarceration can have on young people. Increasingly, research also shows that a young person’s brain is undeveloped, thus he or she is more likely to make poor decisions. Now, some of these groups are leading a statewide campaign to change how kids are held accountable for their crimes.

Enter Raise the Age Campaign

Launched in July 2013, Raise the Age New York calls for raising the age of criminality responsibility from 16 to 18. The Correctional Association of New York and Families Together in New York State are two, out of the many, organizations that support moving 16- and 17-year-olds out of adult courts to juvenile courts.

Currently, New York and North Carolina are the only two states that set criminal responsibility at 16. According to New York State, nearly 50,000 16- to 17-year-olds are arrested each year. The majority of these arrests, 75 percent, are for misdemeanors.

This push to raise the age follows other states that have recently done so. Connecticut raised the age from 16 to 18 in 2007, Illinois raised the age to from 17 to 18 for misdemeanors in 2013 and earlier this year in March, New Hampshire raised the age from 17 to 18.

States that set the age under 18 for being tried as an adult

If we raised the age, we wouldn’t see children in Rikers,” said Carla Barrett, an assistant professor at John Jay College of Criminal Justice and an expert in the juvenile justice system.

Among the Raise the Age campaign supporters is Gov. Andrew M. Cuomo. In April, he created the Commission on Youth, Public Safety & Justice, which is tasked to study the issue and develop a plan to raise the age of criminal responsibility in New York. The report is due this month.

“Incarceration for young people is not rehabilitative and does not address the needs these individuals have or make the community safer,” said Angelo Pinto, who oversees the Raise the Age campaign for the Correctional Association of New York, the only private organization in the state with unrestricted access to inspect prisons and report its findings.

Studies have shown that incarcerating young people does not reduce recidivism rates, but giving them access to age-appropriate services will.

In 2007, the Centers for Disease Control and Prevention found that a youth was 34 percent more likely to be rearrested after going through the adult system than through the juvenile court system. And in June 2010, the U.S. Department of Justice gathered results from several studies on the impact of youth in adult courts. In six studies, involving between 494 and 5,476 teens each, a youth who ended up in the adult system instead of a juvenile system, even when given probation instead of incarceration, showed higher recidivism rates.

When young people go through the adult system, they are vulnerable and malleable to the negative influences that surround them said Paige Pierce, executive director of Families Together in New York State, a non-profit organization that advocates for children with mental and behavioral issues.

“They’ve gone to criminal university 101 at Rikers or wherever,” Pierce said.

The average stay of adolescents in Rikers is 75 days. Most are waiting for trials or cannot make bail. These same young people are also targets for abuse and intimidation by other inmates when placed in adult jails and prisons.

Nazario recalls being jumped his first time, at 16, on Rikers Island. Located in the East River between the Queens and the Bronx, Rikers is New York City’s main jail. It houses 14,000 inmates and on daily averages 500 adolescent inmates. “I was scared inside, but you can’t let it show in that type of environment because people will eat that up,” he said.

The young people in the system are also more likely to be minorities. In 2013, New York State found that 70 percent of youths who are arrested are black or Latino. And of those who are incarcerated, 80 percent are black and Latino.

Pierce also noted that more and more families were telling her that their children often ended up in the criminal justice system for something related to their behavior or mental health. Her anecdotal evidence is supported by a 79-page report on Rikers, released earlier this year by Preet Bharara, United States attorney for Southern District of New York. The report stated that about half of the jail’s adolescent inmates were diagnosed with some form of mental illness while they were there.

“One of the biggest reasons we want our 16- and 17-year-olds to be treated as children is because if they go through the family court system, they have access to assessments for mental health and substance abuse, resources that adult systems may not have,” Pierce said.

Scientific evidence also shows that the brain of a young person is different from an adult’s, so they should not be held accountable for their actions and decisions on the same level as adults.

A study by the MacArthur Foundation found that young people are more likely to not think about the consequences of their actions in the heat of the moment. A thousand individuals between the ages of 10 and 30 from five different regions were involved in the study. When the subjects were asked, “Would you rather have $100 today or $1,000 a year from now?” to gauge their preferences for smaller, immediate rewards versus larger, longer-term rewards, adolescents had a lower “tipping point— the amount of money they would take to get it immediately as opposed to waiting.

The study concluded that when applied to the real world, in terms of criminal behavior, this lack of foresight can contribute to adolescents making bad decisions. But adolescents are also able to grow out of their delinquent behaviors when given the appropriate interventions.

“For some strange reason, I thought I was having fun and my definition of fun was doing stupid stuff,” Nazario said, reflecting on why he had participated in the Queens robbery even though he was out on bail. At the time, he had also befriended the wrong crowd.

A 2009 article, published in the Annual Review of Clinical Psychology by Laurence Steinberg, a leading expert in adolescence and professor of psychology at Temple University, examined the connections between criminal behaviors in kids and neuroscience. He wrote, “We cannot claim that adolescents “ought to know better” if, in fact, the evidence indicates that they do not know better… because they lack the abilities needed to exercise mature judgment.”

Not Everyone Agrees

Some prosecutors, however, are skeptical of excusing criminal responsibility in favor of the brain science. In Syracuse, District Attorney William J. Fitzpatrick of Onondaga County has worked extensively on cases involving 16- and 17-year-olds. He said he’s against raising the age, even with the science behind it. “I’ve seen all the research and my reaction to that is where does it end?” he said. “If you take that to its logical conclusion, you don’t become an adult in the justice system until you’re 25 and I don’t think anyone’s foolish enough to think that’s a good idea.”

A veteran district attorney Fitzpatrick is currently serving his sixth four-year term he said he has seen just about every court case imaginable. Many times, the teens who come through his courtroom have been charged with criminal activity related to gangs. Fitzpatrick, who is the president-elect for the National District Attorneys Association, said there is one aspect of the justice system raise the age advocates fail to mention. In reality, when a person is convicted of a misdemeanor as a 16, 17 or 18-year-old, he or she is automatically granted youthful offender status, meaning the criminal records are sealed. And if a person commits a felony and falls into that age range, he or she is also eligible for youthful offender status.

In Nazario’s case, he said he took a deal that offered him a youthful offender status in conjunction with serving time in prison for the robberies.

Fitzpatrick stated the likelihood of someone under 18 having a criminal record for a non-violent crime is extremely rare. For some cases involving 16- and 17-year-olds he said that he also diverts them to specialized courts based on a program Chief Judge Jonathan Lippman started in 2012.

In 2012, Lippman proposed the “Youth Court Act” to the state legislature because he acknowledged that 16- and 17-year-olds are still children and need to be treated as such. The proposed act would raise the age of criminal responsibility for non-violent offenses from 16 to 18 in New York.

When the bill failed to make any progress in the legislature, Lippman went on his own. He created what he called the Adolescent Diversion Program, which would assign cases of 16- and 17-year-olds charged with misdemeanors and nonviolent felonies to special judges in Criminal Court. These judges would have training in adolescent brain development, substance abuse, trauma and other areas. The pilot program did not require any legislative action and in 2012 Lippman launched the new program in New York City’s five boroughs, Nassau, Westchester, Syracuse and Buffalo.

“Some of these 16 and 17-year-olds have had many many contacts with the system and it has become the norm for them,” said Jessica Kay, director of Brooklyn Justice Initiatives. “The question is how do you break the cycle?” What she and others at Brooklyn Justice Initiatives  do is try and connect these teenagers to a pro-social activity like a job-training program.

Brooklyn Justice Initiatives provides alternatives to incarceration and operates out of Brooklyn Criminal Court. The program works within the Adolescent Diversion Program. Kay said that any 16-and 17-year-old charged with misdemeanor crimes other than intimate partner and domestic violence, are eligible for the program. BJI works with the 16 or 17-year-old and his lawyer to come up with the appropriate short term or long-term services based on the case.

According to Kay, between November 2013 and October 2014, BJI has worked with 344 16- and 17-year-olds. There was a 96 percent success rate for the cases completed.

She stressed that young people who come to BJI know they made a mistake and often times don’t understand the gravity of their actions.  “Many of the 16-and 17-year-olds we work with, this was their first arrest,” she said.

Nazario thinks services like what Brooklyn Justice Initiatives offers are key to rehabilitating youths. Even though he received his GED while in Rikers in 2007, he said aside from a yard and gym, there’s nothing for teenagers to do in jail. He said a lot of money is being put into the system, but none of the money is used efficiently. “How come that money is not being used to create art therapy programs, music programs or anything else people are interested in while at Rikers?” he said.

According to the State Office of Children and Family Services, in 2010, New York State spent $266,000 on each incarcerated youth. New York City’s Department of Education spent just $18,500 per student that year.

Raise the Age advocates add that reducing the number of youths in jails or prisons would also save New York State a lot of money.

Connecticut commissioned the Urban Institute to look into the costs related to shifting the age of adult prosecution after it raised the age from 16 to 18 in 2007. The results predicted that Connecticut would save $3 for every $1 it spends moving older teens to juvenile jurisdiction, and the state did end up spending less money.

A similar analysis by the Vera Institute of Justice, a non-profit research center that advocates alternatives to prison, found that if North Carolina, which is one of the last two remaining states that set the criminal responsibility bar at 16, transferred 31,000 16- and 17-year-olds into the juvenile system, it would cost $71 million annually. This move, however, would generate $123 million in benefits each year, assuming there were fewer arrests over the long term and fewer people in jails and prisons.

“The current system isn’t working,” said Barrett, who also wrote Courting Kids: Inside an Experimental Youth Court, a book about a special court that handles serious cases involving 13, 14 and 15-year-olds. “We spend a lot of money on incarceration and people don’t realize we are throwing money into a system that does not work, so why are we still doing it?”

Michael A. Corriero created this special court, the Manhattan Youth Part, set within the adult court system. With 28 years of experience as a judge in New York State, Corriero wanted to help young offenders who were prosecuted as adults under New York State’s Juvenile Offender Law. The Youth Part is designed to offer alternatives to incarceration. “My philosophy is anchored to the belief that each child has value which we are obligated to recognize,” he said in his book, Judging Children as Children.

Barrett also acknowledged that the Youth Part is a positive model for how to work with youth offenders. “The larger question I always ask people is not whether or not we hold kids accountable for their crimes, but how we find the appropriate ways to hold them accountable,” she said.

Under the Juvenile Offender Law, New York also prosecutes children as young as 13 who are charged with offenses such as murder, arson, assault, burglary, and robbery. Research from The Children’s Defense Fund, a children’s advocacy organization and supporter of the Raise the Age campaign, found that 600 children age 13 to 15 are prosecuted in adult criminal courts each year. Raise the Age legislation, if introduced, may not affect these prosecutions of serious crimes.

And for District Attorneys like Fitzpatrick, the main concern for raising the age would be public safety. “I don’t think 16 is an unreasonable age to prosecute someone when they rape a person or rob a store,” he stated.

Nazario, who was released from prison in June 2010, at 22 years old, said he doesn’t dwell on his experience in incarceration. Instead he focuses on the positives— his two daughters.

This December, he is enrolling in LaGuardia Community College as a full-time student and is continuing to help formerly incarcerated individuals with reentry into society at The Fortune Society. “Stop trying to treat these kids as adults because they’re not adults, no matter what they did,” Nazario said. “Nobody is as bad as the worst thing they’ve done.”