Juvenile Injustice

By Tal Siegel In the 1980s, rapidly increasing crime rates all over the United States spurred widespread panic. By the ʼ90s, the myth of “super predator” teens—adolescents thought to be engaged in rampant, violent crime—had gripped the country, prompting nationwide legislation to lower the age of criminal responsibility. Known as Juvenile Court Exclusion laws, these laws barred many adolescents from juvenile courts, forcing them to be prosecuted and punished as adults. According to what was known as the “Public Safety Hypothesis,” the transfer to the more punitive adult courts would deter youth from criminal activity, thereby reducing crime across the country and improving public safety.

At the time, juvenile court—known as family court in New York State—was seen as too lenient for youth offenders on the verge of adulthood. Whereas punitive criminal court focuses on the nature of the offense in question, family court tends to focus on the offender him or herself. This distinction is based on the idea that the state has an obligation to ensure the wellbeing of its youth, as well as the belief that juvenile delinquents are more likely to be successfully rehabilitated than adult criminals. Family court uses what is called an “individualized justice” approach—one in which punishment or intervention is tailored to the individual circumstances, history, family, and life conditions of the defendant. This crucial difference between juvenile and criminal courts manifests itself in several procedures. Criminal courts administer longer sentences and enforce mandatory minimums for certain crimes, and they do not offer as much access to rehabilitative “Alternative to Incarceration” programs as family courts do. Juvenile courts also differ in that they allow defendants to seal their records, meaning those offenders do not take on felony records that could jeopardize future job prospects, college financial aid, or welfare assistance.

Over time, empirical studies have revealed that there is no correlation between youth crime rates and the age at which adolescents are prosecuted in adult courts, invalidating the “Public Safety Hypothesis.” While the wave of punitive legislation continued until 1999, both juvenile arrest rates and violent crime rates had begun to decline as early as 1994. By 1997, homicide rates had returned to their 1986 levels—the year that these figures first began their sharp increase.

Research has repeatedly shown that transferring juveniles to criminal courts actually has an adverse impact on public safety because it engenders higher rates of recidivism. One recent study found that teens tried in adult court were 85 percent more likely to be rearrested for violent crimes, 44 percent more likely to be rearrested for felony property crime, and had re-incarceration rates 26 percent higher than those prosecuted in juvenile court. Sentencing length for convicted youth has not been known to have any correlation with the likelihood of re-offense, which means that administering harsher sentences does not succeed in deterring them from future crime.

There is also a body of neuropsychological research that challenges the legality of the Juvenile Court Exclusion laws of the 90s. In any prosecution, the culpability of the defendant and his or her competency to stand trial are essential concerns. These neuropsychological studies determined that both of these factors are compromised among adolescents. While 16-year-olds may have the same intellectual ability to reason as adults, their judgment and decision-making abilities are lacking because the parts of the brain that enable us to regulate emotion and control impulses do not fully develop until the age of 25. Teens also exhibit compromised risk processing due to ongoing hormonal changes during their adolescent years. In addition, as teens are particularly susceptible to peer pressure, they’re often coerced into criminal activity that they wouldn’t otherwise engage in.

The fact that the adolescent brain is not fully developed can prove beneficial in a criminal justice setting because it means that teens are receptive to rehabilitation and much more likely to change their ways. The majority of teen delinquents are “adolescent-limited offenders.” In other words, their criminal behavior begins and ends in adolescence. Most teens outgrow their antisocial behaviors as their identity settles and never become “life-course-persistent offenders.” This plasticity of the young brain is why diagnosis of psychopathy is restricted before age 18.

The implications of these studies sparked a nationwide wave of legislation that sought to reverse the punitive Juvenile Court Exclusion laws, including the monumental Supreme Court decision that banned the death and life without parole sentences for criminals under age 18. Today, 37 states and the District of Columbia designate 18 as the minimum age at which a defendant can be prosecuted in an adult criminal court, and 11 additional states set this minimum age at 17. Currently, New York and North Carolina are the only remaining states that allow minors aged 16 and up to be prosecuted in criminal court. Even North Carolina is in the process of changing its laws, and in Congress a bipartisan bill called the REDEEM Act is in the works; if passed, the Act will provide federal funds for community policing to states that set the minimum criminal court age at 18.

At Rikers Island, a prison complex in New York City, defendants aged 16 and older are held while awaiting their trials and during court proceedings, before they have even been convicted of a crime. In 2014, the Department of Justice released a report on the facility that found that out of 489 adolescent inmates held there since 2012, nearly 44 percent had endured physical force at the hands of prison staff at least once. In the year 2013 alone, teen prisoners at Rikers Island sustained a total 1,057 injuries in 565 reported uses of force by correction officers. Undoubtedly the real figure is higher, as many incidents go unreported. The investigation found that inmates were instructed to “hold it down”—in other words, not to report the use of force—and that those who didn’t keep quiet suffered retaliation. Moreover, the Department of Justice found that civilian staff members, including doctors and teachers, “also failed to report abuse and faced retaliation when they did.”

The 2014 Department of Justice report proved alarmingly similar to those conducted in other states in the past, confirming that adolescents face significant risks in adult prisons. In 1997, one such study found teens incarcerated in adult facilities three times more likely to be beaten by prison staff and five times as likely to be sexually assaulted than those in juvenile prisons. Adolescent prisoners are often unable to protect themselves from other adult inmates, and the adult criminal justice system is simply not designed to protect them. While juvenile facilities employ staff that is specifically trained to work with emotionally and physically vulnerable young inmates, adult prisons take no such precautions.

It is no surprise, then, that youth incarcerated in criminal prisons are also at a substantially greater risk of suicide. In fact, the suicide rate for teens in adult facilities is reportedly five times higher than the rate of the general adult inmate population, and eight times the rate of youth in juvenile facilities. In general, these adolescent inmates face significant mental health issues, and in particular, post-traumatic stress disorders. In addition, it has been shown that placing teens among hardened criminals can actually shape them into serious offenders; the adolescent years are critical to identity development, and young people are most susceptible to their environment during this period.

Between 2012-2015, there have been three legislative attempts to raise the age of adult criminal responsibility to 18 in New York State. In 2013, an additional proposal was made by New York’s Chief Judge Jonathan Lippman in the hopes of reaching a compromise between the two legislative houses. Lippman’s bill would have established a new court known as the “Youth Division of the Superior Court,” in which trials would be conducted under criminal procedure law, but would permit teenagers to seal their records, as in family court. The Youth Division would take a rehabilitation rather than incarceration approach, offering a variety of “Alternative to Incarceration” programs. Under this proposed bill, juvenile defendants charged with violent crime would still be prosecuted in criminal court. Though the New York State Assembly held a few hearings regarding these reform bills—collectively known as “Raise the Age” bills—not one made it to the floor for a vote, and in the State Senate, no action was taken on any of the proposals.

In his January 2013 State of the State address, Governor Andrew Cuomo endorsed Raise the Age legislation, and later launched a special commission dedicated to the issue. In 2015, Cuomo tried to bargain for Raise the Age reform for non-violent offenses as part of the State’s annual budget. It was approved by the State Assembly but blocked by Republicans in the State Senate. In addition, an separate comprehensive Raise the Age law was passed by the Assembly, but again, did not even reach the floor at the State Senate. At the same time, support for Raise the Age legislation has grown among law and order professionals such as judges, sheriffs, probation officers, and even district attorneys. Today, a coalition that advocates for Raise the Age legislation counts over 80 different nonprofits and interest groups as members.

In light of growing support for Raise the Age reform, and the considerable media attention garnered by the Rikers Island report, it is perplexing that none of these bills made it to the floor of either the Assembly or Senate for a vote. Why is it that New York, a relatively liberal state, lags behind traditionally conservative ones such as Texas and Missouri in addressing this issue? As it turns out, finding an answer to this question necessitates a closer look at New York State legislature and party leadership.

While New York is seen externally as a unified, Democratic state, internally, the state is incredibly divided and has been said to have the most partisan legislature in the entire country. New York’s partisan politics stems from a division between two geographic regions of the state: the rural upstate, which is majority Republican, and the urban downstate, which is primarily Democratic. The schism between the two regions reflects not only broad differences in partisan ideologies, but also disparities in the demographic and socioeconomic makeup of each region. Since 1974, control over the legislature has been consistently divided between the two parties, with Democrats leading the Assembly and Republicans commanding the Senate. Maintaining majority control has become critical, especially for the Republican Party, which has lost 50 percent of its voter registration in New York State since 1950. In an effort to hold on to these majorities, leaders in both parties have kept legislators under tight control. Party leadership often uses the distribution of campaign funds to influence legislators’ voting, and they regularly conduct closed-door conferences to determine their positions on issues before legislators have had a chance for open floor debate.

Following Governor Cuomo’s endorsement of Raise the Age legislation, Jeffrey Fagan, a Columbia Law School professor and expert on criminal justice policy, has predicted that “the biggest pushback will likely be from upstate New York politicians who will be leery of doing anything that seems soft on crime. The bread and butter of politicians is to be tough on crime. I think fear of crime will trump any rational arguments based on science.” New York State indeed has a long record of “tough on crime” legislation. In 1973, New York’s Governor Rockefeller was the first to declare a “War on Drugs,” and the Rockefeller Drug Laws enacted that same year were the toughest in the nation. For 17 years (from 1977 to 1995), the New York State legislature repeatedly attempted to reinstate the death penalty. In 1978, New York was the first state in the nation to enact the draconian Juvenile Offender Law, which sent 13- to 15-year-olds accused of certain designated felonies to adult courts.

“Cuomo’s language about New York’s prison industry doesn’t play well upstate,” said Republican Senator Betty Little in reaction to the Governor’s 2013 State of the State Address, “and I think we think differently about crime. We think that there should be punishment and penalties for committing crimes and I’m not so sure that people in the New York City area or the metropolitan area think about that as much as we do.” Given that crime rates for New York City far surpass those of any other region in the state, Little’s last sentence is somewhat surprising. However, because prison work constitutes a large share of the upstate New York economy, her resistance to reform is also rather expected. Most of New York’s prisons are located upstate, and in some places, entire towns and economies have developed around these facilities.

And yet, increasing the age of criminal responsibility to 18 would have little to no effect on the prison economy or on the availability of jobs in correctional work. Juvenile prisoners constitute only about 2 percent of the incarcerated population in adult facilities. As Senator Little’s statement indicates, however, New York’s Republican State Senators are wary of appearing “soft on crime” for fear of losing the support of their constituents. Given the size of the prison economy, voters engaged in correctional work constitute a significant population. In addition, the Correctional Officer Association of New York State and other similar unions are listed as major campaign donors for much of the Republican Senate leadership—yet another reason why being perceived as “soft on crime” would pose a threat to Republican candidates. In the last two years, the prison industry has been suffering job losses stemming from Governor Cuomo’s success in reducing prison populations, which has resulted in the closure of several state prisons. In light of this, it has been a particularly inopportune moment for upstate Republican representatives to show support for Raise the Age policies that appear to threaten the prison economy in a similar manner.

As it stands today, Governor Cuomo plans to implement an executive order that would remove 16 and 17 year-olds from adult prisons. However, the order would not have an impact on the majority of juveniles incarcerated in adult facilities, as most are held in state jails rather than prisons. Nor would the order offer any help to the additional 40,000 minors who are prosecuted as adults in criminal courts on average each year, as it only applies to juveniles currently incarcerated in adult prison.

In the summer of 2015, one tragic example of the devastating impacts of Juvenile Court Exclusion made headlines in the media—the suicide of Kalief Browder. Kalief was arrested at age 16 for allegedly stealing a schoolmate’s backpack. He was held at Rikers Island for three years without a trial, and spent about two of those years in solitary confinement. During his time at Rikers, Kalief was subject to violent abuse from both prison staff and other inmates. After he was finally released, Kalief sued the city and made appearances in the media to tell his story in the hopes of preventing others from a similar fate. Kalief enrolled in college after being released from prison, but he suffered frequent panic attacks and was hospitalized twice in psychiatric wards. He attempted suicide three separate times, both while in prison and after he was released. He died after his last attempt in June 2015, at the age of 22.

Some may try to pin Kalief’s ordeals on failures of the New York City Department of Corrections, but his story is representative of the trials faced by youths throughout the state when they are thrust into the adult criminal justice system. Should young people be held accountable for their infractions? Absolutely. However, prosecuting kids in adult courts is an unethical experiment that has gone on for far too long. We should know better by now. It is time to stop sacrificing adolescents on the altar of partisan politics, and time to change our laws for the sake of public safety and for the good of New York’s kids.•

Tal Siegel is a senior in Columbia’s school of General Studies, majoring in Political Science. Tal grew up in Israel where she worked as a counselor and teacher for juvenile delinquents in a special rehabilitative program, and ran a reentry program for formerly incarcerated women through the company she co-owned in St. Louis, MO. She plans to continue her graduate studies in Education Policy. Tal can be reached at: tss2133@columbia.edu