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BDS EXECUTIVE DIRECTOR LISA SCHREIBERSDORF TESTIFIES BEFORE THE STATE SENATE PUBLIC HEARING ON RAISING THE AGE OF CRIMINAL RESPONSIBILITY

TESTIMONY OF:

Lisa Schreibersdorf – Executive Director

BROOKLYN DEFENDER SERVICES

Presented before
The Senate Standing Committee on Children & Families
and
Senate Standing Committee on Crime Victims, Crime & Correction
Public Hearing
on
Raising the Age of Criminal Responsibility

February 6, 2017

My name is Lisa Schreibersdorf. I am Executive Director of Brooklyn Defender Services (BDS). BDS provides multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for tens of thousands clients in Brooklyn every year. Our office has a specialized adolescent unit, called the Brooklyn Adolescent Representation Team, which represented more than 1900 13- to 17-year-olds in Brooklyn criminal and Supreme Court in 2015. In 2016 that number fell to just over 1400. The vast majority of our adolescent clients are charged with misdemeanors and last year only a handful of our clients were sentenced to upstate prison time. At any given time about thirty of our adolescent clients are detained pre-trial at Rikers Island.

I thank the Senate Standing Committee on Children and Families and the Senate Standing Committee on Crime Victims for inviting me to speak today about raising the age of criminal responsibility in New York and its impact on the young people that BDS attorneys currently represent.

There is no doubt that New York can and must do better for young people in the criminal justice system. First and foremost, any legislation must involve removing youth from the custody of local jails and NYS Department of Corrections and Community Supervision (DOCCS) prisons as quickly as is feasible and transferring them to safer and more rehabilitative youth facilities. The horrors that 16- and 17-year-olds suffer in adult jails and prisons are well documented and are discussed in detail in the Governor’s own Commission for Youth, Public Safety and Justice Report issued in 2015. Over the past few years advocates across the state have done an incredible job of educating the public and policymakers about the significant harm that 16- and 17-year-olds suffer in adult jails and prisons. We are deeply grateful for their constant efforts to advocate for the immediate removal of youth from adult facilities.

However, as the attorneys who represent these young people in court, we are deeply concerned about any proposal that would harm the tens of thousands of 16- and 17-year-olds who are never exposed to jail or prison time in the adult system, but could potentially face those exact penalties in family court under previous Raise the Age proposals. Yes, we must remove the minority of youth who will be incarcerated from adult facilities, as soon as possible. But we firmly believe that the legislature must not sacrifice the welfare of the vast majority of youth whose cases would be transferred to the more draconian and less transparent Family Court system in its efforts to “raise the age.”

Furthermore, any legislation that intends to improve outcomes for adolescents must navigate the reality that both our adult and juvenile justice system are deeply racist and disproportionately harmful to Black and Latino youth. While only 64 percent of New York City youth are black or Latino, they make up 88 percent of the youth arrested in the city, 92 percent of the youth detained pre-trial, 90 percent of the youth placed in non-secure facilities and a shocking 97 percent of New York City youth in secure Office of Children and Family Services (OCFS) facilities. Some upstate counties have studied and observed even more disparate outcomes. According to the New York State Juvenile Justice Advisory Group, black youth in Monroe County were 20 times more likely than white justice-involved youth to be admitted to secure detention. In Onondaga County, black youth comprised only 15 percent of the county’s youth population and only 38 percent of the City of Syracuse’s youth population, but they represented almost three‐quarters (73%) of the admissions to secure detention in 2010. Black youth in Onondaga were thus detained at a rate almost five times as high as their proportion in the county’s population. In New Jersey, WNYC just exposed that in some counties, family court judges are twice as likely to approve requests from District Attorneys to prosecute black children as adults than for white or Latino kids. BDS is deeply concerned about any legislation that will give judges more power to sentence youth harshly without providing any additional procedural safeguards to limit racial bias and the potential for incarceration and harsher treatment for young people of color.

Not surprisingly, some states that have raised the age are now faced with the reality that removing cases to an imperfect juvenile court system does not always create better outcomes for youth. States that studied the problems with their delinquency system and used raise the age legislation as an opportunity to improve how they treat adolescents in Family Court have fared much better. BDS calls upon the legislature to work with defenders, the people who have spent their lives fighting for young people in court, to pass raise the age reform that will, beyond ensuring that no young person is worse off than they are under the current law, that New York leads the way in the creation of an adolescent justice system that meets the unique needs of older adolescents in line with modern neuroscience and social science research.

We propose two options for the legislature:

1. Move all youth under the age of 18 into Family Court, no matter what crime they are charged with, and amend the Family Court Act to ensure that youth do not receive harsher punishments in family court than they do in adult court.

Sending all 16- and 17-year-olds to Family Court would allow judges to see the wide range of adolescent behavior and allow them to better discern between normal but inappropriate adolescent behavior, like taking another student’s backpack or cell phone at school, and the small percentage of young people who actually commit serious crimes, like rapes and murders. If the ideological underpinning of raise the age is that adolescents are neurologically different than adults and thus less culpable for their actions, then the same holds true for adolescents who commit serious crimes. We believe that if the courts saw the whole spectrum of adolescent behavior, young people would not be punished for low-level crimes with extended terms of probation with onerous conditions or be sent to placement as they often are today.

Furthermore, the legislature should take away the power of Family Court judges to punish a child more harshly under the Family Court Act than they would be able to punish an adult, for the same action, under the Penal Law and the Criminal Procedure Law. If we are committed to raising the age to promote better outcome for youth and communities, then we must also make long-overdue changes to New York’s Family Courts to ensure due process protections, fairness and transparency for all youth, including younger teenagers.

You must also provide funding for more judges and court staff, as our state’s family courts are severely under resourced and overcrowded. Currently, Article 10 child welfare cases can take well over a year from opening arguments until a judge’s decision. Vulnerable families with cases in other parts of the family court system should not be further harmed because of any raise the age legislation.

2. In the alternative, BDS proposes the creation of hybrid adolescent courts where judges would have the authority to act under either the Criminal Procedure Law or the Family Court Act.

Because of many of the systemic problems ingrained in our family courts, we propose that New York institute adolescent courts that combine the protections of the adult criminal system with the programming and possibilities for rehabilitation and sealing in the family court. The court would provide a series of options for quick resolution prior to invoking the highly intrusive procedures in the Family Court Act. Adolescents would maintain their constitutional rights to a jury trial, to be free from self-incrimination and the ability to plea bargain. However, no adolescent should be eligible for adult sentencing, and certainly no adolescent should be eligible for a life sentence. The default should be that most adolescents would avoid incarceratory sentences altogether, and the court would be resourced with alternative to incarceration programs to ensure that even more youth diverted from possible jail and prison sentences. BDS testified in detail about what such a court could look like at the New York City Council Hearing last month. A copy of that testimony is available at: http://bds.org/wp-content/uploads/2017.01.19-City-Council-testimony-on-RTA.pdf.

Alternative Legislative Solutions
Fortunately, the legislature already has a bipartisan model for such legislation that could serve as an important starting point for a more nuanced raise the age conversation. We would ask your committees to take a look at S. 7394 (Saland)/A.10257 (Lentol) from 2012 and S. 4489A (Nozzolio)/A.7553A (Lentol) from 2013. The bills were iterations of Former Chief Justice Lippman’s Raise the Age Proposal, titled the “Youth Court Act” that would establish a new “Youth Division” to adjudicate cases involving 16- and 17-year-olds and combine the best features of the Family Court and the criminal courts.

Importantly, the 2012 bill required young people tried in the youth part to be held in juvenile facilities, but the 2013 bill did not. BDS firmly believes that 16- and 17-year-olds who have their cases heard in this specialized court part must be removed from adult jails and prisons. Any raise the age legislation that will garner our support must move youths charged with crimes committed when they were 16 or 17 years old into juvenile facilities.

BDS notes that both the 2012 and the 2013 Lippman bills would exclude youth charged with violent crimes from having their cases heard in the part. For the same reasons stated above, it is critical that judges in this part see the wide range of adolescent behavior, including violent criminal behavior. Instead of having the Family Court Act sentencing procedures apply, however, the court could apply the Juvenile Offender Act sentencing to youth charged with violent crimes and be entitled to serve out their sentences until their 21st birthdays in rehabilitative youth facilities. We strongly recommend that the legislature insist that all cases involving 16- and 17-year-olds go to the youth division, as the Lippman bill calls it, and that those young people not face adult sentencing if convicted.

Finally, additional steps should be taken to mitigate the long-term consequences of court contact for 16- and 17-year olds, including raising the age of youthful offender status, opportunities for sealing of prior criminal records, and the elimination of fines, surcharges and civil judgments previously imposed.

Problems with the Governor’s Raise the Age Proposal (2017)
BDS has serious concerns about the Governor’s Raise the Age proposal as drafted in the FY2018 NYS Executive Budget Education, Labor and Family Assistance Article VII Legislation. We raised these concerns with the legislature and executive branch in previous years yet they remain unaddressed in the current version.

Our gravest concern is that the young people most in need of the rehabilitative programming available in the Family Court are excluded from the court altogether and would have their cases heard in adult court as Juvenile Offenders under a new, expanded list of crimes. But perhaps more troublingly, the bill would move youth charged with low-level crimes to Family Court, where they face long periods of probation and placement for misdemeanor crimes where the vast majority receive an Adjournment in Contemplation of Dismissal (ACD) on the first court date. Furthermore, according to the Governor’s Commission report, 75 percent of 16- and 17-year-olds already have their convictions converted to Youthful Offender adjudications, sealing their conviction from the public and protecting them from adult sentencing ranges. The Governor’s bill, and indeed many of the bills put before the legislature in previous sessions, would subject this group of young people, the vast majority of 16- and 17-year-olds charged with crimes in New York, to harsher sentencing under the Family Court Act.

While it may seem counterintuitive, the research is clear: when it comes to youth, it is best to steer non-violent youthful offenders out of the justice system. Studies show that the vast majority of first-time offenders will never be arrested again, regardless of any intervention they receive. Almost 70 percent of youth who are arrested once are never arrested again. 20 percent of young offenders are re-arrested two or three times, with only six to eight percent falling into the category of three arrests or more. Re-arrest rates appear to mirror the reality in the streets. A recent study found that 91.5 percent of justice-involved youth reported decreased or limited illegal activity during the first three years following their court involvement. Re-offense statistics hold true whether or not first-time offenders are provided diversion interventions. What New York should be doing then, is diverting first time offenders from the system as quickly as possible, as most adult criminal courts already do in most counties in this state, and investing significant resources only in the 20% of cases that are medium or high-risk: cases involving violent or serious crimes. This bill would do the opposite.

Our concerns do not end there. This year and last year’s Governor’s budget bill would also:

• Increase the mandatory minimum for 16- and 17-year-olds convicted of B violent felonies to 5-20 years with a possible bump down if the judge determines that sentence to be “unduly harsh”, as compared to the 3.33-10 years that 14- and 15-year-old face under the existing Juvenile Offender statute.
• Expand the list of designated felonies that expose youth in Family Court to a mandatory 3-5 years in placement, harming youth in the Family Court system as compared to the existing law.
• Allow 16- and 17-year-olds to be charged with violations of harassment and disorderly conduct in Family Court, unlike their younger counterparts, exposing older teens to greater police intervention and much harsher punishment for non-criminal acts in Family Court than they could ever face in adult court.
• There is a post-conviction sealing option in the bill, but it would require people to wait ten years before making the application for sealing, even though Raise the Age is supposed to be about ensuring that adolescents have the right to second chances in their youth.
• While the bill would technically raise the age of Youthful Offender status, it does not allow 19- and 20-year-olds to be eligible for YO sentencing and the adjudication would count against them if they were to pick up charges at a future date, in stark contrast to the existing law.
• The bill would increase the number of Juvenile Offender cases, significantly increasing the number of youth whose cases would be heard in adult court, and removing the opportunity for youth charged with more serious crimes (but not the most serious crimes) from the protections of Family Court.
• While the bill slightly increases the scope of cases that probation should be required to adjust in delinquency cases, it provides so many exceptions (and exceptions to exceptions) so as to make the new presumptions nearly meaningless.
• There is no mention of concurrent jurisdiction under both the criminal procedure law and the Family Court Act for judges in the Youth Part in Supreme.
• And finally, this bill, as compared to previous bills, puts much of the financial responsibility of raising the age back on to cash-strapped counties who can ill afford any increase in costs for the juvenile and criminal justice systems.

In contrast to the executive budget proposals, in 2014 New Jersey state bill S2003/A4299 raised the minimum age for what we in New York would call JO eligibility from 14 to 16, narrowed the list of offenses that would be JO eligible, and amended the standard governing such standards. The New Jersey bill went into effect in 2016.

Under the new law, prosecutors must prove by clear and convincing evidence that the reasons for transfer to adult court outweigh the probability of the juvenile’s rehabilitation by the use of the procedures, services and facilities available to the Family Court prior to the juvenile reaching the age of 26. The new bill also requires due process, including representation by counsel, before a young person who is confined in a juvenile facility can be transferred to an adult prison. The bill also eliminates the use of solitary confinement as a disciplinary measure in juvenile facilities and detention centers, and places time limits on the use of solitary confinement for reasons other than punishment, such as safety concerns.

In regards to the transfer of young people most in need of the intensive services that family courts can provide, New Jersey improved their statute to make it more in line with modern brain science. In contrast, New York’s 2016 same-as bill applied the outdated existing statute to 16- and 17-year-olds and the Governor’s bill increased the list of crimes and punishments for 16/17 year-olds who would be tried as JOs. More punitive policies such as these are particularly harmful to young people of color who make up the majority of cases referred to New York’s Family Courts.

My staff and I are willing to explain further why many of these details are of concern. As the people who currently represent adolescents ages 13- to 17-years old in adult courts, we know that the details are the difference between a second chance and prison time. We firmly believe that any of our clients, no matter their age, is entitled to the protections provided to them by the New York and U.S. Constitutions. The words in the legislation matter and will have a direct impact on the young people that we are purporting to help by raising the age.

It is clear that the legislature must act to remove 16- and 17-year-olds from adult jails and prisons. But we hope that the concerns and proposals we raise today help you to move forward on legislation that, at the very least, will not make any young people worse off tomorrow than they are today, and even better, may drastically improve outcomes for all adolescents, their families and communities. New York can and should do this. Your public defenders are here to help.

If you have any questions about my testimony, please feel free to reach out to me at lschreib@bds.org or 718-254-0700 or BDS policy attorney Andrea Nieves at anieves@bds.org.

BDS MEMO OF SUPPORT OF A4880, WHICH WOULD LIMIT RESTRICTIONS ON CHARITABLE BAIL ORGANIZATIONS (CBOS)

Memorandum of Support

A4880 (Blake)

An Act to amend the insurance law, in relation to charitable bail organizations

February 9, 2017

Brooklyn Defender Services (BDS) supports A4880 (Blake) which would limit restrictions on Charitable Bail Organizations (CBOs) therefore enabling these non-profit groups to assist more people throughout New York State. BDS is a public defense organization that provides multi-disciplinary and client-centered criminal defense, family defense, immigration and civil legal services, reentry support, social work support and community-based education to tens of thousands indigent Brooklyn residents every year.

Brooklyn Defender Services helped incubate the Brooklyn Community Bail Fund[i], which as an independent 501(C)(3) organization has bailed out more than 1,100 defendants who otherwise would have been locked up in City jails prior to the resolution of their case. Many of these defendants were BDS clients, and we have seen firsthand the positive impact CBOs can have on the administration of justice in our borough and throughout New York City.

EXISTING LAW

Under existing New York State law, CBOs are able to deposit money as bail in the amount of two thousand dollars or less for a defendant charged with one or more misdemeanors, provided, however, that such organization shall not execute as surety any bond for any defendant. The current law also limits funds to operate in only one county, with a carve-out for CBOs located in New York City to operate within all five boroughs.[ii]

In 2012, when Charitable Bail Organizations were added to the Insurance Law to clarify rules about their activities, the inability of people whose bail was set higher than $2,000 to meet this financial condition was well-documented. Nevertheless this limit was put in place, perhaps because CBOs were a new type of entity and their activities had never been regulated before.

PROPOSED AMENDMENTS

Due to the success of the CBOs currently in operation – both in their ability to post bail for indigent defendants thus reducing the number of people facing the traumas of incarceration in the absence of any finding of guilt for a specific crime, and in ensuring the return to court rates – it serves the State well to consider lifting some of the restrictions initially placed on these organizations in 2012.[iii]

In the second quarter of 2016, according to the Mayor’s Office of Criminal Justice, 9,415 people landed on Rikers Island despite bail amounts under $2,500.[iv] (The upper limit for CBOs is currently $2,000, but NYC data does not provide for statistics at that threshold). During that same time period, there were an additional 3,873 people who were incarcerated pre-trial in NYC because they were unable to post bail between $2,500 and $5,000. Extrapolated out to a full year, this means that the new bill could impact at least 15,492 people, in just New York City alone, a significant number. Our understanding of bail-setting practices outside New York City is that bails are comparatively higher. Thus we anticipate the higher threshold having a significant impact outside New York City as well.

Importantly, the proposed legislation would permit CBOs to post bail on cases with a top charge of a violation or a felony. At the moment when bail is set, the judge is not remanding a person, but setting some conditions that if met, would give the judge comfort that the defendant would return to court for their future court appearances. The purpose of bail is not to hold someone in jail until the conclusion of their case, though this occurs too often all across the state. The purpose of bail is release. Therefore CBOs should not arbitrarily be limited to posting bail for misdemeanors, but should be made available to those people who cannot afford the financial conditions set by a judge, no matter the charge.  .

Pre-trial incarceration is a grave injustice. Being in jail for just one day can lead to a lifetime of harmful consequences from which some of our clients never recover. There are dramatic racial disparities in our pre-trial systems. Requiring people to use financial resources to buy their way out of jail is discriminatory against those without financial means. Lastly, there is no evidence to suggest that requiring financial conditions of release actually increases the rate at which people return to court. Because the amendments proposed in A4880 will provide greater opportunities for people to remain at liberty while their case is adjudicated, we support this bill.

ADDITIONAL RECOMMENDATIONS

The bail system in New York State is broken.[v] Most problematically prosecutors ask for, and judges order, people to post financial conditions of release that far exceed their ability to pay, even though an individualized assessment of a defendant’s financial capacity to pay is required in the bail statute.. Our bail statute remains one of the most progressive in the country, but the application of the statute is a problem. While we support this bill because it will help people in need, it is not a panacea for all pre-trial problems. Our hope is this bill is one step in a longer march toward transformational reforms to the way justice is administered during the pre-trial period of a criminal case.

New York is one of just eight states that do not require judges to have legal training.[vi] This means that the judicial officers interpreting the bail statute, and sending people to jail on financial conditions they cannot afford, may not fully understand the law. It is no surprise that in New York City, where judges are legally trained and experienced, and public defenders are well-resourced, more people are released on their own recognizance, when compared to upstate counties. New York City’s jail population declined by half since its peak in 1999 yet other county jail populations, such as Montgomery County’s, has swelled. While New York City’s pre-trial system is comparatively better, still 60,000 people cycle through the City’s jail system each year, the vast majority of whom are their waiting for their case to be adjudicated.[vii] As CBOs in New York City have shown, many of these people will come back to court if released.

Looking to the future, there is no reason to restrict CBOs to posting only cash bail instead of surety bonds. Here in New York City and across the State, our clients experience wide-ranging fraud and exploitation at the hands of commercial bail bondsmen, who nevertheless continue to benefit from the current practices by the courts in setting  Insurance Bond as one of two options for people to meet their financial conditions of release, cash being the other. Although under the statute judges have nine forms of bail they can permit, and no requirement to set any form, which would allow defendant’s families to make decisions about what form they are capable of posting, , in Brooklyn and throughout NYS, Insurance Company Bond and cash are overwhelmingly the most common. If the CBO’s are to be able to help more people avoid pre-trial incarceration, there should be a broadening of the scope of their permitted activities.

Thank you very much for your consideration of our comments. If you have any questions, please reach out to Nick Malinowski, nmalinowski@bds.org or 718-254-0700 ext. 269.

[i] https://brooklynbailfund.org/

[ii] http://law.justia.com/codes/new-york/2015/isc/article-68/6805

[iii] https://brooklynbailfund.org/our-results/

[iv] http://www1.nyc.gov/site/criminaljustice/data-analytics/reports.page

[v] https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html?_r=0

[vi] https://www.theatlantic.com/politics/archive/2017/02/when-your-judge-isnt-a-lawyer/515568/

[vii] https://www1.nyc.gov/assets/doc/downloads/pdf/FY17_1st_QUARTER_2016_demog.pdf

News

IN THE NEWS: VILLAGE VOICE, “YES, NEW YORKERS CAN BE DEPORTED FOR JUMPING A TURNSTILE”

Runs With Scissors / Flickr

Village Voice: “Yes, New Yorkers CAN Be Deported For Jumping A Turnstile”

“With or without a detainer, ICE can arrest people at home, work, and court, detain them or release them, and give them a court date for deportation proceedings in which their charges are based on offenses like fare-evasion and counterfeit handbags,” [Andrea] Sáenz [supervising immigration attorney for Brooklyn Defender Services] says. “This absolutely happens to New Yorkers, even if the NYPD is not aware of it. This is a perfect example of how ICE detainers are only one link in a chain that ties our clients to the detention and deportation system.”

Read the full story in the Village Voice here.