By Tim Fenster Lockport Union-Sun & Journal
NEW YORK — On Monday, 16-year-olds who are charged with crimes, from misdemeanors to the most serious felonies, are going to face a far different criminal justice system in New York state.
Rather than be tried in criminal court, starting on Oct. 1, 16-year-olds charged with misdemeanors and most non-violent felonies will instead have their cases heard in Family Court, where their sentences would be capped at 18 months in a juvenile detention facility. They also will no longer be held at jails, except in a handful that are being updated to hold 16- and eventually 17-year-olds.
The Raise the Age NY law will not apply retroactively, meaning 16-year-olds charged with crimes before Monday will go through the current criminal justice system. The law will take effect for 17-year-olds on Oct. 1, 2019.
While youth justice reform advocates applaud the law as a shift from punishing to rehabilitating teens charged with crime, local prosecutors and heads of criminal justice agencies have voiced concerns on everything from cost and personnel demands to how young offenders will respond to a more lenient system.
Punishments for youth
Both Niagara County Attorney Claude Joerg — whose office acts as the prosecution in Family Court cases — and District Attorney Caroline Wojtaszek worry the shift will remove the incentive for 16-year-old, first-time offenders to follow the terms of their probation, a common sentence for such circumstances.
Youth who are charged with sex offenses, display a weapon while committing a crime or cause a significant physical injury will typically be tried in a newly-created Youth Part of criminal court. Other violent felonies will presumptively be moved to Family Court, unless the prosecution files a motion to keep the case in criminal court and can show “extraordinary circumstances” that warrant criminal prosecution.
Joerg bemoaned that 16-year-olds — and eventually 17-year-olds — who repeatedly commit serious but non-violent felonies will “no longer be treated as criminals.”
“A 16-year-old that does 10 burglaries in his neighborhood is no longer a criminal. He doesn’t get a criminal conviction. He doesn’t go to jail anymore. Because they’re just ‘misunderstood’,” Joerg said at a recent county Legislature meeting.
Joerg and Wojtaszek both say incarceration is extremely rare for first-time teenage offenders in Niagara County. Rather, they say, the threat of jail-time gives teenage offenders good reason to follow the terms of their probation and not commit future crimes.
“If you take those consequences away, are they going to be motivated enough to take advantage of these services (offered to them) and do what they have to do? Or without that level of accountability, are they going to turn around and think the system is a joke?” Wojtaszek said.
“It’s really a motivator when you have a county or state court judge telling you could face prison if you don’t follow through,” she added.
Wojtaszek also said that Niagara County prosecutors and judges “always” take an offender’s age — along with other factors such as their home life — into account when sentencing and arranging plea offers.
“We have two county court judges that constantly and consistently try and help these kids and try and turn their life around,” she said.
Others feel that fears of a toothless justice system for teens are overblown.
Andy Kossover, a New Paltz attorney who serves as legislative co-chair of the state Association of Criminal Defense Attorneys, said incarceration at a juvenile detention facility gives the system plenty of “teeth” for 16-year-olds.
“If adolescents don’t comply with conditions of any disposition, they still can be placed in detention facilities,” Kossover said. “They certainly have the sword over their head if they don’t comply with measures short of incarceration.”
The Raise the Age NY Campaign argues the law will be more effective in preventing re-offenses. They cite a U.S. Center for Disease Control study that found youth who are tried in the adult criminal justice system are 34 percent more likely to commit future crimes than those who remain in the youth justice system.
Kossover and the campaign say this is because more rehabilitative resources are available in Family Court.
“Most adolescents are in greater need of the resources available in a Family Court setting than what the adult criminal justice can provide,” Kossover said. “There’s more counseling available. Many more programs available for adolescents in crisis.”
But Wojtaszek said the county relies on outside, not-for-profit agencies to provide many of these services, such as substance abuse rehabilitation centers. The state has little control over the capacity of these outside agencies.
“Are we going have the wrap-around services to do what this law claims we’re going do?” she said.
Personnel and resources
Implementing raise the age will drastically shift — and in most cases, increase — the responsibilities of county agencies from the sheriff’s office to the probation department to the county attorney office, inevitably creating concerns about personnel and funding.
The state has pledged to reimburse counties for all costs related to probation, youth detention and alternatives to detention, and allocated $100 million for raise the age in the 2018-19 budget.
Joerg said his office will need another attorney and a secretary to process the additional 200 cases he expects to see over the next 12 months due to raise the age.
Niagara County Probation Director John Cicchetti said the state projects the department’s caseload to increase by 60 to 120 individuals through the first full year of raise the age (and likely double that in the second). Those projections are based off the department’s youth caseload over the past three years.
Cicchetti explained that under raise the age, the department will have to process more youth assessments, which involve lengthier interviews, interviews with the offenders’ parents or guardians and more time to go over a case plan.
The department also must follow up with youth offenders every 90 days, while with adults, it is only every six months.
To handle the increased workload, Cicchetti hopes to add one probation officer later this year and two additional officers next summer. That represents a 75 percent increase in its staff dedicated to juvenile offenders — currently, four of the county’s 25 probation officers work with Family Court.
In the county’s 2018 budget, the average cost per probation officer was $71,160.
And then there’s the cost of detainment and transportation.
Sheriff Jim Voutour said transportation will be particularly costly and time-consuming, as there are far fewer juvenile detention facilities throughout the state than jails.
There is no such facility for youth in Niagara County. The nearest facilities for pre-trial and -sentencing detention are the Erie County Youth Services Center in Buffalo and the Monroe County Juvenile Detention Center in Rush, followed by facilities in Onondaga and Albany counties, according to the state Office of Children and Family Services, which regulates the facilities.
If a judge orders a youth to be detained, and the nearest facility has no beds available, police agencies will have very long drives to transport young offenders from detention to court and back.
“It could be several hours” for a one-way transportation of a 16-year-old offender, said Thomas Mitchell, counsel for the New York State Sheriff’s Association. “There’s no question that sheriff’s are working on the issue. It’s going to affect every county.”
Echoing those concerns, Voutour recounted a recent case in which two deputies had to travel to Albany to transport a teenager back to Niagara County. Without anywhere to place her, deputies had to supervise the teen for the better part of a day. Eventually, with no beds left at the Erie County facility, deputies had to transport the girl to a facility in Utica.
Voutour estimated that the transport and supervision cost approximately $4,000.
“The money’s still coming from taxpayers,” said Voutour, referring to the state’s pledge for reimbursements.
Voutour said the county has considered building its own juvenile detention facility but determined it was cost-prohibitive, largely due to the lengthy requirements for such facilities.
“We’re doing the best we can to comply with it. But housing them is just extremely difficult,” he said.
The state said that while pre-trial and pre-sentencing detention is a county responsibility, it has offered detention alternatives to reduce the cost for counties.
“New York State’s investment in diversion and prevention programs has dramatically reduced many counties’ need for juvenile detention,” said an OCFS spokeswoman. “The state provides counties with funding for alternatives to detention such as mental health support and mentoring programs that successfully and safely keep youth in the community.”
The state has also allocated funding to expand capacity for adolescent offenders — 16-year-olds who are convicted in criminal court (which, again, is only for some violent felonies).
In September 2017, Gov. Cuomo announced bidding had started on $89 million in construction projects to expand capacity at four upstate juvenile detention facilities, including $29 million to expand the Industry Residential Center in Monroe County by 80 beds.
But Voutour and Wojtaszek said they worry that, between transportation costs and the focus on rehabilitation, some violent teenage offenders will be released into the community as they await trial and sentencing.
“I can guarantee there will be youth that the community will want detained — who commit crimes of forcible rape and murder — and we will have a problem if we don’t address the bedding situation throughout these neighboring counties,” Wojtaszek said.
A focus on detention
Incarceration of teens in adult facilities was a major driver of raise the age legislation.
Starting decades before the law’s passage, the state already required that teenage offenders be held in a separate area of adult jails.
But that didn’t guarantee humane treatment for teenage offenders.
In passing the law last year, Cuomo was joined by the father of Kalief Browder — a Bronx teen who was arrested at 16 for allegedly stealing a backpack.
While awaiting trial, Browder spent three years incarcerated at Riker’s Island, mostly in solitary confinement. Browder committed suicide in June 2015, about two years after his release, after suffering mental health issues that were often blamed on the conditions of his imprisonment, particularly the long stays in solitary confinement. He was 22.
His case eventually led the New York City Department of Correction to ban the use of solitary confinement for inmates under 22 in 2015. State- and federal-run facilities also ban the use of solitary confinement for juveniles, but there is no ban for Upstate county jails. A report by The Marshall Project, a non-profit journalism source dedicated to criminal justice, found that seven of the 10 upstate counties with the largest percent of youth offenders in county jail do allow solitary confinement of juveniles, while the other three did not respond to inquiries.
Niagara County has the second-highest percent of 16- and 17-year-olds in jail, at 70 percent, according the report, which cited New York State Commission of Correction data.
Voutour said the Niagara County Jail does not practice solitary confinement at all. However, the jail does place unruly or high-risk inmates in a special housing unit, where they are kept under constant supervision, according to Voutour.
“The (Browder) case was a failure on many, many parts,” Voutour said. “We often bear the burden of what happens in New York City.”
At OCFS facilities, teens may only be placed in room confinement for immediate risks of self-harm, not for discipline.
Wojtaszek said that from conversations with other district attorneys, she understood solitary confinement of teenagers was not common in upstate jails. She added that agrees with providing more services for youth charged with crimes but hopes the state will change portions of the law, particularly regarding sentencing options, should counties see increases in youth committing crimes.
We’re going to have to wait and see what happens, and we’re going to have to adjust accordingly,” she said. “I just hope that those in Albany listen to what we have to say, if it’s working and also if it’s not working.”