July 13, 2016

Seven 'Raise the Age' Work-Arounds: Doing the Right Thing When Albany Won't

By Kate Rubin

Another legislative session has ended in Albany, and a 16-year-old who jumps a turnstile or smokes marijuana in public will still be arrested and prosecuted as an adult. Efforts to raise the age of criminal responsibility once again foundered in the Legislature. The result is that New York remains one of only two states in the country that automatically prosecutes 16- and 17-year-olds in the adult criminal justice system—despite a growing consensus among researchers and law enforcement professionals that this is bad for young people and bad for public safety, too.
Because they are considered “adults,” these teenagers, who are disproportionately black and Latino, are held in adult jail and prison systems, even pre-trial, before they’ve been convicted of any crime. Found guilty, they face sentences and other penalties designed for adults, as well as the lifetime stigma of adult criminal records, which they will be asked about on college, job, and apartment applications for decades to come. 
We can do better than this. Other policymakers have a moral obligation to act where legislators have failed. Here are seven steps City and State agencies can take—right now—to protect children from an outdated, abusive criminal justice system.
1. Reduce arrests of 16- and 17-year-olds.  There were 17,000 arrests of 16- and 17-year-olds in the five boroughs in 2015; over 12,000 were for misdemeanors. Alternative policing strategies that don’t end in arrests, including pre-arrest diversion, could significantly reduce the number of teenagers who see the inside of a holding cell and adult arraignment courtroom.  And allowing student MetroCards to be used for unlimited trips, including on non-school days, would decrease arrests for turnstile-jumping.
2. Commit to parental notification and involvement to prevent false confessions.  The police currently are not legally required to notify the parents of an arrested 16-year-old. By contrast, when a 15-year-old is arrested, they must make “every reasonable effort” to notify parents, and give both the parent and child a Miranda warning prior to questioning. Since false confessions happen even among adults, the risk that a scared and vulnerable 16-year-old will make one is substantial. The NYPD should adopt a policy of notifying and involving caregivers when anyone under 18 is arrested. 
3. Remove 16- and 17-year-olds from Rikers Island.  The well-documented horrors of Rikers Island have spurred a growing campaign to close the entire facility, which Youth Represent fully supports. But its youngest residents often suffer the most from the isolation, inaccessibility to visitors, and culture of violence at Rikers. The Department of Correction has taken positive recent steps, like eliminating the use of solitary confinement for those under 18, but the City must do more. A plan should be implemented to remove teenagers from Rikers Island as soon as possible, and ensure that those who must be incarcerated are held near their home communities.
4. Expand alternatives to incarceration (ATI)As recommended by experts, the City can broaden ATI offerings tailored to LGBTQI youth, youth with mental illness, girls, young parents, and other groups. With appropriate precautions, ATI programs also can be expanded to young people charged with serious offenses, including violent crimes, who often stand to benefit most from them. 
5. Reduce pre-trial detention.  New York State law allows judges tremendous flexibility in bail-setting. But unfortunately judges typically issue only cash bail and insurance bond orders that virtually guarantee jail time for low-income defendants, including young people. The court system should encourage judges to make greater use of less onerous bail options. 
6. End punitive housing policies.  When a young person is arrested, the New York City Housing Authority (NYCHA) frequently starts eviction proceedings against the entire household, before a conviction for any crime. Some families are allowed to avoid eviction only by agreeing to permanently exclude the family member who was arrested, meaning that even teenagers as young as 16 can be permanently banished from their homes. NYCHA is currently reviewing this practice, and should adopt policies that presume that no young person under 21 should be excluded from his or her family and made homeless. The City Human Rights Law also should be expanded to protect people seeking public and private housing from blanket discrimination based on criminal records.
7. Ensure fair chances for job-seekers.  New York’s Fair Chance Act makes it illegal for most employers to ask about a criminal record until they’ve offered a job to an applicant, allowing job-seekers to be judged based on their qualifications, not conviction histories.  But the law is only effective if employers follow it. The New York City Human Rights Commission needs sufficient resources to enforce the law. And special efforts must be made to ensure that young people with adult criminal records know how to protect their rights as job-seekers.
Even if all these, and other, measures are adopted, they are no substitute for legislative action to “raise the age.”  But if years of legislative foot-dragging have taught us anything, it’s that we can’t wait for Albany to act.
Kate Rubin is director of policy and strategic initiatives at Youth Represent, a non-profit organization that provides criminal and reentry legal representation to youth age 24 and under who are involved in the criminal justice system or who are experiencing legal problems because of past involvement in the criminal justice system. Youth Represent also advocates for policies and laws that improve opportunities for such young people.