GETTING IT RIGHT: RAISING THE AGE AND JUSTICE SYSTEM REFORMS FOR ADOLESCENTS
David is sixteen years old and lives in a New York City homeless shelter with his mother. He has been arrested three times in the past year for possession of a knife, most recently after robbing another teenager of their iPhone. His living situation is dangerous and chaotic, and he keeps the knife, despite the arrests, primarily for his own protection. Because he is considered an adult by the New York State criminal justice system, he is facing time in an adult jail and could end up with a criminal record that will bar him from various housing, employment and public assistance benefits. He might be further blocked from accessing a variety of social services — such as educational, vocational and therapeutic programming — that would otherwise be made available to him through the juvenile justice system if he were just six months younger. He will eventually be released back into his community without any support, having been traumatized by the system and with significant new barriers to overcome if he is to reach his stated goals of finishing high school, going to college, getting a job and being a positive influence in his community.
It’s hard to imagine anyone arguing publically that this is how they would want their children to be treated should they at some point run afoul of the law. However, New York remains one of just two states nationally that prosecute sixteen and seventeen year-olds in adult criminal court, despite extensive research indicating that these practices are not effective at reducing criminality, do not act as a plausible deterrent and are unnecessarily expensive.
There is a consensus across the United States that the age of majority is eighteen years old. Society does not permit people younger than eighteen to vote, to serve on a jury, to buy tobacco or alcohol products, to serve in the military, to sign certain contracts, or to take part in a host of other rights and responsibilities granted to adults, because we have come to believe that young people lack maturity to make decisions that have long-term consequences. Similarly, 48 of the 50 states in the U.S. have set the age of criminal responsibility at eighteen; unfortunately New York, along with North Carolina, has been unable to bring its criminal justice system, as it pertains to adolescents, in line with the rest of the country, the United Nations Convention on the Rights of the Child, and overwhelming social science research highlighting the inappropriateness of treating children as adults for the purpose of punishment.
It is not enough, however, to simply extend the application of the Family Court Act to older teenagers. The juvenile justice system has its own, well-documented warts; procedures there, while rehabilitative in name, may in fact be overly punitive in the context of older adolescents. A more nuanced approach that considers the unique developmental capabilities, life circumstances and needs of this age group is long overdue.
Every state has two distinct court tracks — one for juveniles and one for adults. According to the Schuyler Center for Analysis and Advocacy, the two systems are primarily differentiated by philosophy — the adult system focuses on punishment and the juvenile system focuses on rehabilitation. Youth prosecuted as adults often face the same consequences as adults; they can be placed in adult jails and prisons, are subject to fines most cannot pay and are limited to adult interventions, typically without access to age-appropriate rehabilitative services. Meanwhile aspects of the juvenile system — such as parental obligations and school requirements — may be inappropriate for older adolescents, particularly on minor crimes.
Most sixteen and seventeen year olds who are arrested in New York State are involved only in petty crimes and violations. Out of the approximately 46,351 arrests last year, about three-quarters were misdemeanors and the most common disposition was a conditional discharge. Nationally, just 4.5% of under age-eighteen arrests are for violent offenses, with the vast majority being property crimes or non-index crimes such as vandalism, drug and alcohol use and breaking curfew.
Most young people, without any intervention, will grow out of these types of behaviors as they settle in to adulthood. Further, due to their still-developing brains and identity frameworks, many adolescents are incapable of internalizing punishment as a deterrent. Nevertheless, approximately 250,000 children and youth under the age of eighteen have cases adjudicated in adult U.S. courts each year. Nationally, 95,000 young people under the age of eighteen were held in adult jails or prisons — with the vast majority in county jails. According to Human Rights Watch, this practice is especially damaging to young people who are prone to psychological harm, depression and trauma, highly susceptible to physical and sexual assaults, frequently placed in solitary confinement for their own protection, and denied educational or vocational programming.
When young people leave the adult penal system, they may be saddled with an adult criminal conviction, which will make it harder to find a job, harder to get a college degree, harder to find housing and more likely that they will be pushed into quasi-legal or even criminal activities in order to support themselves. Youth sent through the adult system re-offend at a higher rate, re-offend sooner and typically go on to commit more serious crimes than their peers who are adjudicated in juvenile courts. The outcomes for teenagers arrested in New York and New Jersey are qualitatively different because of the age of jurisdiction.
Modern social science indicates that the adolescent brain continues to develop through the age of 25; decision-making, planning, setting long-term goals, and risk perception are among the last cognitive skills human beings learn. Behaviors legally considered delinquency, rule-breaking or even low-level crime, are indeed typical, natural aspects of the adolescent experience. Any parent can explain that teenagers are impulsive and susceptible to peer-pressure. Within the legal framework, considering these facts, the Supreme Court in Roper v. Simmons (2005) established diminished criminal responsibility for those under the age of 18.
In many parts of the state, law enforcement and the court system — in practice — act on these understandings. Risky behavior — including minor rule-breaking and low-level crime — is not generally considered to be cause for criminal accountability among racially or socioeconomically privileged demographics. However the result of this discretion has left us with a criminal justice system with profound racial disproportionalities. While the disparities in drug law enforcement are perhaps the most researched and well-known, a large literature of self-report studies establishes that almost all adults engaged in some form of law-breaking during their teens.
Nevertheless, in New York State, the Office of Juvenile Justice and Delinquency Prevention reported that young people of color are arrested nearly twice as frequently as White youth, are detained six times more frequently and placed approximately four-and-a-half times more frequently. These disparities are evident in both the adult and juvenile systems. Black and Latino young people make up 88 percent of all arrested youth in New York City, 91 percent of all children in juvenile detention and 97 percent of all Office of Children and Family Services admissions.
Fortunately the politics around youth crime are changing. Now as much as 90 percent of the U.S. population understands that rehabilitative services and treatment for incarcerated youth prevents crime. Other states are on the move: between 2005 and 2010, fifteen states enacted laws to prevent young people from entering the adult system through legislation that limits housing young people with adults in prisons and jails; expands juvenile court jurisdiction to cover older teenagers; restricts transfers out of juvenile court; and considers developmental differences between children and adults in sentencing frameworks. Locally, a statewide Raise the Age Campaign, led by organizations such as the NAACP, Correctional Association, and the Children’s Defense Fund, is gaining traction. Chief Judge of the New York State Court of Appeals, Jonathan Lippman, has become an ardent supporter of similar adolescent justice reforms. Incoming Brooklyn District Attorney Ken Thompson has also supported change.
Innovation always costs money, but the experiences of other states indicate that long-term savings will more than make up for the upfront expenses. An analysis of Connecticut’s recent decision to raise the age of criminal responsibility to 18, predicted a $3 benefit for every $1 in cost — primarily driven by gains to public safety. A 2011 cost-benefit study by the Vera Institute of similar reforms proposed in North Carolina, predicted $54 million in annual savings. Rhode Island lowered its age of adult jurisdiction from 18 to 17 in 2007, but after experiencing a spike in costs, raised it back to 18 after just four months. The state’s Attorney General Patrick C. Lynch said at the time: “It’s a gross failure of responsibility. It’s not saving money. It’s creating enormous questions and problems in the system, never mind ruining lives.”