Relates to the age of criminal responsibility

This measure seeks to secure better outcomes in the justice system for youth aged 16 or 17 who are accused of non-violent crimes.

New York has long provided that teenagers become criminally responsible for their actions at age 16. With limited exceptions - for 13, 14 and 15 year olds who commit the most serious offenses - a person younger than 16 who is apprehended for committing an act that would be criminal if committed by an adult is brought to Family Court, where efforts are made, through the involvement of social service agencies and other community resources, to address the dysfunction underlying the person's behavior without exposing him or her to formal prosecution and punishment. Even where those efforts are unavailing, the ultimate sanctions for a person then held responsible for his or her offense are designed to stress treatment, rehabilitation and the aim of effective reintegration into the community. Hence, no criminal record can result, the needs of the person are paramount, incarcerative placements are subject to an overarching direction that they be the least restrictive option available and records of any court proceedings are sealed. In short, all emphasis is upon salvaging a young person - helping him or her to get past anti-social behavior and move on to a productive life.

None dispute the wisdom of this model. Indeed, many responsible people in the community now seriously question whether the State should expand it in some fashion to include slightly older teenagers. New York is today one of only two states in the Nation that prosecute 16-year olds as adult criminals. In contrast, 37 states and the District of Columbia set their respective ages of criminal responsibility at 18; 11 states set their's at 17; and the one state that shares New York's distinction as a hold-out for criminal prosecution of 16-year olds, North Carolina, has begun a process leading toward increasing its age of criminal responsibility to 18.

That the rest of the Nation has gone or is going down the path of using alternatives to the adult criminal justice system to deal with young offenders should be of little surprise. Statistically, it is sadly evident that older adolescents who face punishment in adult criminal courts have higher recidivism rates, re-offend sooner, and go on to commit violent crimes and felony property crimes at a higher rate than their younger brothers and sisters whose offenses are adjudicated through a juvenile justice model. See Fagan, J. "The Comparative Impacts of Juvenile and Criminal Court Sanctions On Adolescent Felony Offenders" Law and Policy 18(1): 77-119 (1996)). Moreover, there is ample research concerning brain development in adolescents and their greater receptivity to corrective therapies and treatments to show that a juvenile justice model or some variation

thereof, if applied to them when they offend, is likely to result in better outcomes - for the community and for the adolescent offender.

All this said, New York may not yet be ready for full embrace of a juvenile justice model for the disposition of crime perpetrated by 16- and 17-year old offenders. There are institutional costs that stand in the way, as well as ingrained public attitudes. Indeed, there is no community consensus that, however different these offenders may be from older offenders and however troubling it may be to prosecute them as adults, expanding the juvenile justice model to them is the right path to follow for them. Accordingly, this measure offers a somewhat different approach.

At heart, this measure is an effort to balance two concerns. A concern for protecting the community against teen crime and against the teenager who, over time, becomes a repeat offender with a concern that the current means employed to deal with teen crime prosecution and punishment through the adult criminal justice system - may ultimately do far more harm to the teen and to his or her community than good. We believe that, as currently constituted, neither the adult criminal justice system nor the juvenile Family Court system offers an effective means by which to strike this balance. Accordingly, we propose this measure as a new approach to the handling of crime perpetrated by teenagers too old to be considered children but not old enough to be considered full adults. This new approach, which will incorporate greater efforts to get troubled 16- and 17-year olds the substance abuse, counseling and educational attention and assistance they need will be centered about a new judicial forum. This forum will blend features of both adult and juvenile justice systems -- applying tools and procedures of each to various phases of court proceedings against teen offenders in a manner best calculated to ensure public safety and offender accountability while gearing community response to teen crime to methodologies most likely to help teens counter their anti-social behaviors and reduce their likelihood of recidivism.

The Youth Division of superior court

Under this measure, judicial proceedings against 16- and 17-year-old offenders would be in a special part of court to be known as the Youth Division of superior court. The Youth Division would sit in Supreme Court in New York City and in County Court (and, occasionally, in Supreme Court) in counties outside the City. It would be presided over by judges and justices specially trained in the issues of adolescent development, child psychology and therapeutic approaches to child pathology and juvenile crime.

Adjustment by probation

Under this measure, where a person is arrested for allegedly committing a nonviolent crime while 16 or 17 years old, the arresting officer may give him or her a special appearance ticket that directs the person to report to the local probation department at a specified date. On that return date, the probation department will attempt to adjust the case against the teen offender - in the same manner that it would attempt to adjust a case against an alleged juvenile delinquent in Family Court. If the probation department succeeds, no charges will be filed against the teen, fingerprints will be destroyed and all

other records pertaining to the arrest will be sealed. If the probation department is unable to adjust the case, it will be reported to the local District Attorney who may then bring charges against the teen in the Youth Division. If the teen fails to report to probation as directed in the special appearance ticket, or if the arresting officer determines not to issue such a ticket and instead chooses to take the teen into custody, then, once the teen is brought into the Youth Division{1}, the court will decide whether or not to refer the case to the probation department for adjustment. Where it does not do so, the District Attorney may then bring charges against the teen.

Recognizing that this measure will occasion greater costs for local probation departments around the State and, to assure maximum effectiveness, require greater spending on the kinds of services needed to help teen offenders, the measure provides that its costs will be underwritten by the Judiciary: (1) by direct reimbursement of localities for their probation outlays on account of this measure{2}, and (2) through establishment of a Juvenile Probation Assistance Program, or "JPAP", by which the courts, following the model of the enormously successful Justice Court Assistance Program, can provide limited State aid to counties and NYC by which those localities can expand programs providing

Prosecution in the Youth Division

If efforts at adjustment fail, or if the Youth Division determines that such efforts are not suitable in a particular case, then the District Attorney may file an accusatory instrument with the Youth Division to commence an action against the teen offender. In such case, prosecution against him or her will proceed as it would in any other adult prosecution. All provisions of the Criminal Procedure Law that would regularly apply to such a prosecution will apply. At this stage of the proceedings, the teen offender will stand in the shoes of any other adult against whom charges have been brought.

Placement, not sentence

If, after trial, the teen offender is exonerated, the case against him or her ends. All records will be sealed as provided in CPL 160.50. If, however, the teen offender either pleads guilty exclusively to one or more non-violent crimes in satisfaction of the charges against him or her, or he or she is found guilty by verdict exclusively of one or more nonviolent crimes, then the Youth Division, in lieu of a CPL sentencing, is to conduct a dispositional hearing on the model of the dispositional hearing prescribed by the Family Court Act for persons who have been found to be juvenile delinquents. At this hearing, the Youth Division will have available all of the dispositional options that a Family Court Judge would have available when rendering a juvenile delinquency disposition and be guided by the Family Court Act directive that, in choosing an option, the court "shall consider the needs and best interests of the (defendant) as well as the need for protection of the community." See FCA § 352.2. Whatever disposition the Youth Division decides upon, the affected teenager will not have a criminal record and the records of his or her offense(s) will be sealed from public view.

Summary

This measure proposes a more comprehensive solution to certain types of crime perpetrated by an in-between class of offenders: 16- and 17-year olds, who are not quite yet adults but no longer children. Many believe that, given the volume of their offenses -- non-violent crimes alone committed by this group number more than 40,000 annually - and the fact that they are not young, perhaps more pliable, teenagers dictates that their malfeasance be subject to correction in the adult criminal justice system. But this view ignores considerable research indicating that this group is more receptive to counseling, social and other forms of intervention and treatment than older offenders; and far more likely to avoid re-offense and an escalating life of crime if given such intervention and treatment than if they were sentenced under current provisions of the Penal Law.

For this very reason, many others believe that 16- and 17-year olds should be routed through the juvenile justice system, where they can receive services and avoid the stigma of criminal conviction. They also point to the fact that many states have raised their age of criminal responsibility and taken matters involving juveniles outside of the adult criminal justice system. Indeed, even avowedly "tough on crime" states like Texas, Georgia and Mississippi have successfully raised the age of criminal responsibility. Similarly, Illinois, which, like New York, also has large urban centers, raised its age by a phase-in process and more recently, New York's neighbor, Connecticut, increased the age as well. But this view ignores common public fears concerning teenage crime and official concern for the impact of transferring tens of thousands of cases to already overburdened Family Courts.

Accordingly, our objective in this measure is to apply the most appropriate aspects of the two systems and meld them into a new, more flexible arrangement that is better suited to the circumstances. In the adjustment process it authorizes, the measure provides an opportunity for many teenage offenders to get the attention and treatment they need and to truly get at the heart of the problems underlying their criminal behavior. By establishing a Youth Division with specially-trained judges, to adjudicate offenses involving 16- and 17-year olds, the measure ensures that these prosecutions will be overseen by judges with experience in criminal court and, among them, only those most knowledgeable and experienced concerning teenage crime. And, by requiring that such prosecutions be conducted in accordance with the Criminal Procedure Law, the measure sends the community a message that, when perpetrated by these offenders, criminal conduct ought to be adjudicated in accordance with the same standards that are applied to the prosecution of adult offenders. Finally, by substituting a Family Court-like dispositional process for adult criminal sentencing, and forgiving teenage offenders of a criminal record, the measure reflects the practical realization, reached by most other states in the Nation, that a juvenile justice approach in response to proven teenage crime is much more likely to be effective in protecting the community and correcting the pathologies that produce teenage crime than the current adult penological approach.

This act will take effect November first in the second year following its enactment.

2013-14 Legislative History:

Senate 4489-A (Sen. Nozzolio) (Codes) Assembly 7553-A (M. of A. Lentol) (Codes)

{1} All court activity involving a person who is arrested for allegedly committing a non-violent crime while 16 or 17 years old is to take place in the Youth Division Only where that court is not in session, i.e., at night and on weekends, may a local criminal court arraign such a person. In such event, however, unless the local criminal court chooses to dismiss the case altogether pursuant to law, it must then send the case directly to the Youth Division on the next day that the Youth Division is in session

{2} The measure creates a special board comprised of representatives of the Executive, the Legislature and the Judiciary to assure the fairest possible reimbursement process To this end, this board will be available to hear and determine local challenges to reimbursement amounts substance abuse, counseling, educational, occupational, etc., services so that the adjustment model promoted in this measure can have a real chance at success.