Governor Decides, in Juvenile Justice, City Kids Belong Near Home

Govenor CuomoIf Governor Cuomo gets his way, New York City will cut the number of children it sends to state-run juvenile justice facilities by more than two-thirds over the next two years, receiving more than $35 million per year from the state to create a new spectrum of services and incarceration facilities for juvenile delinquents within the five boroughs. Mayor Michael Bloomberg first called for the creation of a comprehensive, city-run juvenile justice system more than a year ago, citing an 81 percent recidivism rate at the state's juvenile prisons and the bloated costs to city taxpayers of supporting an inefficient statewide system. Until today, neither city nor state officials have been willing to provide public details on the progress of the plan, but the two administrations have been in negotiations for the past several months, agreeing on logistics and a financing structure shortly in advance of the governor's executive budget proposal, released earlier today.

"Too many of our young men are sent to prison and lost to the system," the mayor said today. "The governor has proposed a sweeping, progressive reform that will transfer primary responsibility for all but the most seriously delinquent youth from the state to the city, allowing our young people to remain closer to their families and receive the individualized services, supports and opportunities they need."

If the governor's "Juvenile Justice Services Close to Home Initiative" is approved by the state legislature, New York City will take jurisdiction of children who are currently confined in the state's so-called "non-secure" and "limited secure" facilities, a total of 324 kids. Young people who are determined by Family Court judges to require high-security facilities, which look and operate much like adult prisons, will remain in the charge of the state.

It is unclear whether the new programs will also apply to young people currently placed in nonprofit-run residential treatment programs outside the city.

The city does not plan to directly operate any of the planned new facilities. They will instead be developed and run by nonprofit organizations under contract with the Administration for Children's Services, according to a source familiar with the plan.

In the first year of operation, the city would be eligible for a block grant of $35.2 million in state funds for its new services. The grant would go up the following year to $41.4 million and be subject to annual appropriations thereafter. Once the state approves the city's plan, it would also be authorized to shut down facilities of its own, a move that has traditionally been fought by guard unions and many upstate legislators. Governor Cuomo estimates that the measure would cost the state $3 million next fiscal year (which begins in June of 2012), but result in a net savings of $4.4 million when fully implemented in 2014. It's still unclear how much money the city would save under the plan, but if state facilities are closed, the city would likely see significant savings in its own budget.

Advocates for juvenile justice reform in New York City have long called for kids to be housed and served closer to home. "It cannot be understated how important it is for youth who have to be in juvenile justice placements to be placed close to their homes, schools, communities and lawyers," says Stephanie Gendell, associate executive director of the Citizen's Committee for Children.

But while the plan creates new possibilities for young people to remain close to their families and support systems, it leaves many unanswered questions about how an expanded city-run juvenile justice system would operate:

Will the city fund new lockups for kids? Who will run them and how?

The state currently operates five juvenile justice facilities inside New York City. Under Cuomo's proposal, the city would be authorized to lease those facilities for one dollar a year. The city is likely to lease three of the five and turn them over to nonprofit organizations, according to a source familiar with the negotiations. Since there are no city-administered detention programs that qualify as "limited secure," it is unclear which organizations would be qualified to provide a level of confinement and services consistent with those currently offered by the state.

Jeffrey Butts, a justice scholar at John Jay College who has worked with the city on analyzing its juvenile capacity needs, notes that a city-administered system could create new financial incentives to keep kids out of lockups altogether, since incarceration is many times more expensive than alternative programs that provide community-based supervision alongside services like family counseling and job training. "If you have $100 to spend and you can either use that money to put one kid in a facility or work with three or four kids in the community, you'll find that the impulse to put kids in secure facilities goes way down," says Butts.

Over the past several years, the city has created a spectrum of such alternative programs, decreasing the number of kids it sends to state lockups by more than two-thirds since 2000.

Governor Cuomo's plan does not require the city to reinvest the money it may save from reduced state incarceration into community programs for kids in the city's new system, or into building high-quality residential facilities for those kids who will continue to be locked up. Some advocates for juvenile justice reform worry that financial pressure may work against the interests of young people who end up in city-run residential programs.

"Children who are incarcerated should be placed only in very small facilities staffed by well-trained employees familiar with children's developmental needs and committed to helping them succeed," says Gabrielle Prisco, director of the Juvenile Justice Project at the Correctional Association. "Incarcerated children should receive the kinds of meaningful treatment services shown to both help them improve their lives and decrease recidivism."

Prisco's vision echoes the model that's been described by several of the city officials most deeply involved in juvenile justice reform efforts, but so far there's been no commitment to spend the kind of money that such a system would require. What these advocates say they don't want to see is high-volume, service-poor facilities, regardless of whether they are administered by the city rather than the state.

How will a city system avoid the abuses that have plagued the state's juvenile facilities?

Juvenile justice reforms at both the city and the state level were spurred, in large part, by revelations of widespread abuses in state facilities, including a federal investigation that found rampant overuse of physical force in four state-run lockups.

New York City has its own spotty record on juvenile incarceration. The city currently operates two secure detention centers for children awaiting hearings in Family Court or transfers to state facilities. According to the city's most recent quarterly incident report, young people in those facilities were injured by guards 55 times between July and September of 2011, an average of more than once every other day.

While the city has taken steps to improve conditions in its detention facilities (most notably closing the infamous Bridges Juvenile Center, which had been marked by decades of scandal and abuse), the bulk of its reform efforts have been directed at diverting kids to community programs. State facilities, in the meantime, have introduced a therapeutic discipline model and standards for the use of physical force and restraints aimed at reducing injuries to young people in its care.

Jeffrey Butts of John Jay College notes that detention centers are an imperfect parallel to longer-term incarceration facilities, since their conditions are inherently more volatile. "You have quick turnarounds and high-stress circumstances with kids who aren't sure what's going to happen to them," he says. "There are bound to be more incidents."

While the city programs would be run by nonprofits, advocates worry that any improvements may not survive into future administrations. "Although both the city and state have recently engaged in important reforms, any transfer of power must be predicated on more than the successes of current administrations," says Prisco of the Correctional Association. "Administrations inevitably change and it is imperative that a strong and durable system of protections for children be built into the legal framework of any youth justice system."

Who will regulate, oversee and monitor the city's expanded juvenile justice programs?

Under Cuomo's proposed legislation, New York City's plan for new facilities and services must be approved by the Office of Children and Family Services (OCFS) before it can take effect. OCFS, which operates the state's juvenile justice system and regulates the city's foster care system, will have ongoing oversight and monitoring responsibilities for the city's expanded juvenile justice services, along with the power to retract funding.

As a function of the mayoral administration, the system would also presumably fall under the oversight powers of the City Council and the city Comptroller.

As part of its proposal for providing the new services, the city would be required to hold a public hearing on its plan and justify reasons for disregarding any significant commentary. Still, some juvenile justice advocates question the city's likelihood of incorporating meaningful community input into the design or operation of its new services, particularly, they maintain, since the city excluded them from its planning and negotiations with the state.

"There are a lot of people in the community who are very excited about this," says Avery Irons, director of youth justice programs at the Children's Defense Fund of New York. "We want kids close to home. If the city puts together a plan that we can support we'll stand with them the whole way. They might be surprised at the levels of support and offers of assistance they'd get from community agencies. But we need that plan. They have to open up enough to hear our voices."

Council Says Raise the Age...Sort Of

The City Council passed a resolution Tuesday urging the state legislature and Governor Cuomo to send 16- and 17-year-olds accused of nonviolent crimes through the juvenile justice system, rather than automatically prosecuting them as adults. The resolution supports a proposal made in September by New York's chief judge, Jonathan Lippman. Lippman's proposal would re-route adolescents accused of "less serious offenses" through family courts, where they have access to services and programs not available to those tried as adults. The proposal follows a decade-long national trend toward removing adolescents from adult courts, jails and prisons. New York and North Carolina are the only states that still automatically try 16-year-olds as adults. Eleven states set the age of criminal responsibility at 17 while 37 states and the District of Columbia set it at age 18.

Even if New York adopts the changes urged by the City Council, the state's policy would remain among the most stringent in the country. The law would continue to send children to adult courts and prisons if they are charged with violent crimes. Only 23 other states do this, according to the U.S. Department of Justice. The majority of states mandate that children first be adjudicated in the juvenile justice system, where judges have the discretion to transfer them to adult court if they believe that circumstances warrant a criminal prosecution.

Last year, more than 42,000 young people aged 16 and 17 were prosecuted as adults in New York State, according to the Division of Criminal Justice Services. Of those, 74 percent (31,764) were charged with misdemeanors; 12 percent (5,341) were charged with nonviolent felonies; and 13 percent (5,727) were charged with violent felonies.

Another 598 children under the age of 16 were tried as adults last year under the state's "juvenile offender" law, which sends children as young as 13 to adult court if they are accused of certain serious felonies. Of those, 77 percent were charged with robbery; 13 percent with assault; three percent with a weapons charge; one percent with homicide. Even if convicted, these juvenile offenders are not incarcerated with adults until they are at least 18 years old.

Judge Lippman has not provided full details on which crimes he wants to see shifted to juvenile courts. "Those juveniles who commit...serious offenses can and should be prosecuted in criminal court," he said in a speech to the Citizens Crime Commission of New York City in September.

Others in the court system disagree. "It's the age of the person more than the offense that we should be looking at," says Judge Lee Elkins, who has presided in the Kings County Family Court since 1995. "The whole issue is driven by knowledge about teenagers' development, and the reality that teenage brains are not fully developed in terms of executive function. I don't think that the offense alone should be the determining factor" in deciding where adolescents are tried, he says.

Elkins also maintains that the proposed changes must be considered within the realities of New York's notoriously overburdened Family Court system. "My concern is that we be adequately resourced," he says. "With the budget cuts, everyone is already doing their utmost with less. Please don't impose additional burdens on us without providing additional resources."

Bloomberg administration officials declined to comment on whether they have begun to assess the logistical and financial challenges of expanding the Family Court, juvenile probation and detention systems, but a Department of Probation spokesperson said "This is something we're interested in and we're looking into it."

In September, John Feinblatt, chief policy advisor to the mayor, told The New York Times, "The practical considerations should not shut down the discussion...They should be part of the discussion."

In a City Council hearing earlier this month, several advocates for low-income youth testified that the proposal should include children charged with more serious offenses.

Research on adolescent brain development, for example, which Judge Lippman cited in his September speech and in testimony to the City Council, "does not make a distinction between nonviolent and violent adolescent acts," said Gabrielle Prisco, director of the Juvenile Justice Project at the Correctional Association of New York, a watchdog group with the authority to inspect and report on state jails and prisons. "We do not...say that some children have demonstrated through their actions an adult-like tendency, and so should be able to serve in the military, vote, or enter into a contract with AT&T."

Both Judge Lippman and the City Council have cited data indicating that adolescents who leave the juvenile justice system are significantly less likely to commit another crime than those who spend time in adult jails and prisons. In 2006, the U.S. Centers for Disease Control and Prevention analyzed six studies that compared recidivism rates between young people who had committed similar offenses but been sentenced through the different systems. Four of the six concluded that processing young people through juvenile systems decreased recidivism by a median of 34 percent.

That data is not limited to nonviolent offenses. In fact, one of the studies in the CDC analysis compared young people charged with comparable, serious crimes in New Jersey, where they were treated as juveniles, and New York, where they were prosecuted as adults. The New York youth were 39 percent more likely to be re-arrested on a violent offense than their juvenile peers across the state line. Councilmember Sara Gonzalez, who chairs the Council's Committee on Juvenile Justice and was the lead sponsor of the resolution declined to comment on the Council's decision to restrict it's resolution to adolescents accused of nonviolent crimes.

In a cost-benefit analysis commissioned by the legislature of North Carolina, which is considering a bill similar to the one proposed by Judge Lippman, The Vera Institute of Justice found that routing 16- and 17-year-olds accused of nonviolent crimes through that state's juvenile justice system would save taxpayers a significant amount of money over the long-term. The policy change was projected to cost the state $49.2 million in additional spending per year. But the authors estimated it would also generate $123.1 million in benefits to young people, victims and taxpayers for every year that young people were routed through the juvenile justice system. Much of that benefit was predicted to come from lower recidivism rates and from freeing young people from the long-term consequences of a criminal record on employment.

Will New York State Pay for Guardianship, or Not?

A new law designed to give young people in kinship foster care a more permanent home won't force them to sever ties with their parents, but it's not clear how New York will pay its share of the program, called "subsidized guardianship," due to begin April 1. The Federal government will cover 50 percent of the cost, but Governor Cuomo's recently proposed budget does not account for how the state and city will divvy up the rest. The state legislature must decide whether the money will come out of the foster care block grant, which would likely mean the city would shoulder nearly the entire cost, or whether the state and local government should share the costs, as they do for adoption subsidies.

The city's Administration for Children's Services, as well as Citizens' Committee for Children and the New York Public Welfare Association (NYPWA), recommend that state and local government share the costs. "Our position is that this is a permanency option, comparable to adoption, and should be paid for using the [the same division of costs between the state and local districts that] funded adoption in 2010," NYPWA wrote in an emailed statement.

Until the legislature resolves the issue, the city and other local districts will be expected to pick up the tab for all costs not covered by federal funding. The city stands to save thousands of dollars each year in administrative oversight for each child who would otherwise have remained in foster care.

More than 5,500 New York City children live in kinship foster care with aunts, uncles, grandparents, and other relatives. Pending federal approval, nearly 1,000 of these could leave the foster care system and remain with their relatives without the intense, sometimes invasive oversight and costly monitoring of the Administration for Children's Services and the private agencies it oversees. These relatives would receive between $7 and $56 a day, depending on a child's age and needs, the same rate as adoptive parents. But unlike adoption, which can fuel family tensions because it requires parents to lose their legal rights as parents, children in kinship guardianship will stay legally bound to their parents.

"If there's a reason to keep the parents in the life of the child, then guardianship is the way to go," explains Mark Testa, a professor at the University of North Carolina School of Social Work.

New York is one of the last states in the nation to start such a program. Testa, who has helped implement similar programs elsewhere, predicts it will affect about 500 New York City children the first year and 300 to 400 children the second year. But others guess these numbers might be lower for New York City because of potential months-long delays in Family Court.

At a recent NYC Bar Association meeting, Lauren Shapiro, director of the Brooklyn Family Defense Project, said that parent attorneys were already reviewing cases to see which might be right for kinship guardian. To qualify, a child must be in a certified foster home with relatives for at least six months and have no plans to return home or be adopted. Subsidized guardianship will be an especially welcome option for children whose parents have mental illness or debilitating addictions, Shapiro noted. With the new program, these kids could find stability without disrupting their bonds, legal and otherwise, with parents. "Subsidized guardianship gives all of us an opportunity to retain better outcomes for families," Shapiro said.

Meredith Sopher, director of child welfare training at Legal Aid's Juvenile Rights Practice, described a client who had bounced through six different foster homes before finding stability living with her mother's cousin, who planned to adopt her. But just before the girl's birth father died of cancer, he asked his daughter to never be adopted. When the girl's foster mother began adoption proceedings, guilt consumed the young woman and she ran away, ultimately aging out of the foster care system to live on her own.

Sopher wishes she had been able to offer the young woman subsidized guardianship, and expressed relief that it was now on the table. "It's a new option," Sopher said. "We're thrilled."

Cuomo Plan Would Close Juvenile Lockups

If Governor Cuomo gets his way, New York State's juvenile corrections facilities will lose one third of their capacity over the coming year. The governor's executive budget, which he presented to lawmakers earlier today, predicts the state can save $22 million per year by downsizing and closing juvenile jails, cutting 376 of the current total of 1,209 beds. He would also get rid of the current, mandatory 12-month waiting period for closing facilities - a controversial legal requirement that critics say forces the state to waste hundreds of millions of dollars each year on maintaining and staffing near-empty juvenile jails.

Under the governor's plan, $75 million would be redirected to community-based programs for young people who run into trouble with the law over the next two years. Another $38 million would go to improving medical, mental health and other services for youth remaining in state facilities.

Advocates for young people in New York City say they support reinvesting funding into community programs. "We're cautiously optimistic," says Avery Irons, Director of Youth Justice Programs at the Children's Defense Fund, New York. "We're hopeful that other cuts to children's services will not undermine efforts to keep kids on the right path."

Governor Cuomo has made juvenile justice reform a signature issue of his administration, capping off his January State of the State address by describing New York's overreliance on juvenile lockups as a violation of young people's civil rights, and promising to end the practice of keeping juvenile facilities open in the interest of preserving jobs. "An incarceration program is not an employment program," he said.

MONEY FOR ALTERNATIVES

Over the past several years, consensus among New York City and State policymakers has shifted toward keeping kids out of state-run lockups, which investigators from the US Department of Justice on down have condemned as dangerous, violent and counterproductive. Since 2006, the city has invested in a large-scale effort to expand and support community-based programs for kids who get arrested or end up in court, providing them with supervision while keeping them near their families and providing services like counseling and job training. (See the Center for New York City Affairs 2009 report: A Need for Correction: Reforming New York's Juvenile Justice System.)

City officials say their alternative programs are far more effective and less costly than incarcerating kids far from home, but they worry that it will be hard to maintain or expand the programs in the face of the city's deficit. Last year, the city's largest alternative program had to turn away more than 150 kids who may have been eligible for its services, since it lacked capacity to take them in.

Under the Governor's budget, the state would make $29 million available to local governments to invest in alternative community programs in the coming fiscal year (which begins in April, 2011), and $46 million in the following fiscal year.

Much of the money for those programs would be made available by restructuring the way the state reimburses counties for the cost of detaining young people who are awaiting court hearings or transfer to state lockups. Under the current system, the state pays 50 percent of the cost of running local detention centers. The governor's plan would put a cap on that money, a move he predicts will save $23 million in the coming fiscal year and $51 million in the next, and give counties a financial disincentive to hold low-risk youth in detention centers.

THE FIGHT IN THE LEGISLATURE

Now that the Governor has presented his plan for the budget, the battle over juvenile justice funding and reform will move to the state legislature. Last year, the Senate passed bills that would have accomplished much of what the Governor has proposed in his budget, reinvesting money from juvenile lockups to community services, and guaranteeing state reimbursement for alternative-to-incarceration programs. But the bills faced tough opposition, primarily from Republican legislators whose districts depend on juvenile justice facilities for jobs, and from the New York State Public Employees Federation, which represents employees at the state's juvenile facilities. Both bills died in the Assembly.

As of January of this year, there were 604 young people confined in state facilities, of which 375 were from New York City. Currently half the beds in the system are empty.

The Governor's budget provides $10 million economic development grants to areas impacted by closed facilities.