TESTIMONY OF:

Elana Roffman, Supervising Attorney, Adolescent Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before the New York City Council Committee on General Welfare

Hearing on Juvenile Justice System During the Covid-19 Pandemic

My name is Elana Roffman and I am a Supervising Attorney in the Adolescent Defense Practice at Brooklyn Defender Services. I want to thank the Committee on General Welfare, and Chair Levin, for hosting this important hearing on the Juvenile Justice System During the COVID-19 Pandemic. BDS’ Adolescent Representation Team works to eliminate contact and limit involvement within the legal system for youth 21 and younger. Our specialized multi- disciplinary advocates provide comprehensive support for youth and their families who are navigating the legal system.

As we near the one-year anniversary of the Family Court being open in-person, and the commencement of the Governor’s Executive Orders limiting due process, we are reminded of what MLK Jr. said in his letter from a Birmingham Jail -- “[j]ustice too long delayed is justice denied.” And when we are talking about our clients who are children, the judiciary and social scientists understand that the express purpose of Family Court intervention must be to assure swift and certain adjudication at all phases of the delinquency proceeding.¹ Yet since March 2020, the Family Court system has largely been shut down, hearing only cases which were filed pre-pandemic, and allowing for the filing of new cases for youth who are detained, those who have turned 18, and those Juvenile Offender² cases removed from Supreme Court to Family Court. For all the other children who are ages 7 through 17 with arrests, whether Juvenile Delinquency or removed Adolescent Offender cases, they are being investigated, written, but remain unfiled.

Black and brown communities have been hit hardest by the current global pandemic and because of racist systems and policies, youth from those same communities who are further traumatized by contact with the juvenile justice system. The recent findings released by the final Raise the Age Commission’s Report, released in December 2020, found that in New York City nearly all youth prosecuted as adults in the Youth Part were Black and Hispanic. The Raise the Age Commission reported that

[m]ore than 90 percent of admissions to specialized secure detention involved Black and Hispanic youth, and all adolescents sentenced in New York City to incarceration in a DOCCS adolescent offender facility were Black…. White youth with delinquency cases in NYC were much more likely than Black or Hispanic youth to be adjusted by the probation department, regardless of whether the youth was charged with a misdemeanor or felony offense…. Black and Hispanic youth were similarly over-represented in all types of youth confinement setting where 90 percent of admissions to juvenile detention and placements into residential treatment facilities involved Black and Hispanic youth.³

Diversion

There are many paths to divert cases out of the Family Court system, the two most common fall under the jurisdiction of Department of Probation (DOP) and The Corporation Counsel of the City of New York Family Law Division.⁴ DOP and Corporation Counsel approve programs, monitor youth, and make the ultimate decision regarding whether diversion was successful. These interventions last from weeks to months. Diversion in NYC has become more common in recent years, and since the pandemic closed New York City in March 2020, anecdotally and according to conversations with DOP and Corporation Counsel, these programs are being used to an even greater extent.⁵

In the meantime, while Corporation Counsel is actively seeking to resolve filed cases, there are still hundreds of Black and brown children without any opportunity for due process. With no movement towards any resolution, presentation of innocence or finding of guilt, youth and their families are left unsure about what the future holds with regards to their arrest, during this pandemic, a period with unprecedented uncertainty. The delay in filing and resolution of cases means that youth are not getting the services they might need in any proximate and effective manner in relation to the incident.⁶ These periods of time are often scary and tumultuous for teenagers and children, who do not know what to expect looking forward. Trying to explain that a case filed over a year after an arrest could conclude with placement out of ones’ home, two years of probation, orders of protection, and other mandates with such distance from the underlying act, undermines the very intent of the Family Court Act.

There must be something done to address the hundreds of unfiled cases as we look forward to the City making its way towards its new normal. If a youth’s only contact with the law is that one arrest, the rehabilitation factor of the Family Court may simply not be necessary over a year later. Additionally, the lessons learned from this unprecedented time is that not all cases which had been filed prior to the pandemic needed to be filed. The movement towards diverting more and more cases from the Court system, showing that some arrests are simply “kids-being-kids” who do not need intervention, and some arrests require youth work with community-based services, which is logical, cost effective, and ultimately will serve to restructure the racist and classist policies built into the police and court system. This leaves the services and time of the Judiciary to be spent on serious cases which cannot be resolved without Court intervention. What we are learning during this global catastrophe is that the number of cases required for in-court intervention is much lower than how we were previously operating.

We thank the City Council for holding this important hearing today and shining a light on the impact COVID-19 has had for young people with court involvement. If you have any questions, please feel free to reach out to Kathleen McKenna, Senior Policy Social Worker at 718-254-0700 x210 or kmckenna@bds.org.

¹ Matter of Benjamin L., 92 N.Y.2d 660 (1999)

² A 13, 14 or 15 year old person charged with murder in the 2nd degree, or a 14 or 15 year old person charged with certain violent felonies as listed in the Criminal Code. See https://www.nycourts.gov/CourtHelp/GoingToCourt/glossary.shtml#J

³ NEW YORK STATE RAISE THE AGE IMPLEMENTATION TASK FORCE FINAL REPORT, 6-7. Found at

htps://www.criminaljustice.ny.gov/crimnet/ojsa/FINAL%20Report- Raise%20the%20Age%20Task%20Force%2012-22-20.pdf.

⁴ The Administration for Children’s Services does not provide specific diversion services for Juvenile Delinquency cases. ACS is responsible for pre-disposition detention and post sentencing prison through the Close to Home program. They also provide after-care services which is similar to parole officers. Finally, ACS provides diversion services for status offense cases Person In Need of Supervision. The ACS diversion services are often more difficult to access once there is police and court involvement, although that is probably when they are most needed for a young person and their family.

⁵ An incredible argument for not cutting the funding to community programs that help youth in New York City is that they keep youth out of the Family Court System.

⁶ “Indeed, a delay in the proceedings may undermine a court's ability to act in its adjudicative and rehabilitative capacities” (Butts, Speedy Trial in the Juvenile Court, op. cit., at 525). “Legal sanctions in the juvenile setting are designed to teach offenders that unlawful behavior has consequences.” (Butts, Speedy Trial in the Juvenile Court, op. cit., at 525). Matter of Benjamin L., 92 N.Y.2d 660, 667 (1999).