The Raise the Age Law will take affect across New York State tomorrow for 16 year olds who have an encounter with breaking the law and the criminal justice system.
In April of 2017, Governor Andrew Cuomo signed the Raise the Age law, which will change the way 16 and 17 year old are treated in the court system.
As of October 1, 2018, 16 year olds will no longer be tried in criminal courts.
If you are 16 and commit a criminal act that is not a felony, you will automatically be directed to the probation department where you will go through an “adjustment”, which will create a plan to address what the teen has done. The case might end up in Family Court.
“By not putting them through court, you are not traumatizing the 16 year old with the seriousness of the criminal court setting,” says Joseph Cardone, District Attorney in Orleans County.
“They won’t feel like a criminal and we can help to adjust them to not be a criminal so that they live a law abiding life after they get to a law abiding age.”
Under the new law, if a 16 year old is charged with up to an E felony, they will be issued an appearance ticket to go to probation without going to court.
If charged with a D felony or greater, the 16 year old will have to appear before a designated Judge in each county. They must be immediately arraigned regardless the time of day.
There are regulations applied to the arraignments:
-cannot speak to the 16 year old arrested unless a parent is present
-must have a designated room that has been approved by the Office of Court Administration
-cannot be in the presence of any adult violators
-males and females must be segregated
-after being processed, they have to be taken to a designated Judge for the segment called “Youth Part” in a designated facility
-when being transported in and out of the designated facility there has to be a separate entrance that is used where they won’t have contact with other criminal defendants.
-any interviewing has to be recorded with the parents present
-each law enforcement agency will have a separate room for the juveniles
Under the Raise the Age Law, if a 16 year old is charged with a serious felony, they have to be arraigned in front of the designated Judge whatever time of day it is.
Also a determination has to be made as to whether or not the 16 year old is going to be detained.
They will have to appear with council from the Public Defenders Office that has undergone training and has been certified. If the adolescent defendant is detained, the District Attorney will have to make an application to the Judge to do that at arraignment.
If the Judge determines that the adolescent defendant is going to be detained, then the 16 year old will have to be transported by law enforcement to an approved detention facility for adolescent offenders that meets certain guidelines.
In the case of Genesee, Orleans and Wyoming Counties, they have reached out to detention facilities in Buffalo and Rochester and as far away as Albany if the ones nearby do not have space. Smaller counties currently do not have any facilities for adolescent offenders and cannot afford to build or maintain a facility at this time. If an adolescent offender has to be transported to Albany, the distance will cause an issue when the 16 year old has to re-appear the next day in court.
Cardone says all these additional requirements have created demands on every department involved in the court system. Departments like Social Services, Probation, Mental Health, Public Defenders Office, Law Enforcement and the District Attorney’s Office were asked by the state to submit a request for what is needed. The state claims they will assist in the cost to the counties.
Cardone says he has requested a part time ADA, increased hours for a clerical person and an on call cell phone for ADA’s.
“The fact is we have to abide by the law.”
“I hate to see a knee jerk reaction to an issue that is frankly more window dressing then substetive and that is always the concern. It takes away a lot of discretion from Judges, which is not good.”
Under the old law, Judges had to look at each situation and each person to determine whether they should get the benefit of youthful offender status based on their previous conduct and the seriousness of the offense.
New York was one of only two states, along with North Carolina, to view 16 and 17 year olds as adults in criminal court.
17 year olds will be added to the law on October 1, 2019.
In Genesee County, District Attorney Larry Friedman says this law is a solution in search of a problem.
“I don’t believe there was a problem in NYS with the way 16 and 17 year olds have been treated in the criminal justice system,” says Friedman.
“We have youthful offender treatment which shields young people from criminal convictions and there are so many alternatives that have been used to maybe paint the picture that we have all these 16 and 17 year olds in state prisons. This is just not accurate. I think the system was working fine the way it was. They could have just raised the age of legal responsibility to 18 like they have done in other states.”
Friedman says there are so many problems and so many uncertainties and so many things that the state has not taken care of in enacting the law. He says there is a huge learning curve for every department involved. The County has spent a lot of time on getting ready for the law over the past year and it is not simple.
“It is a big problem for us, for a relatively small number of cases in Genesee County. It’s just one more thing that we don’t have the resources to deal with and we just keep getting stretched thinner and thinner.”
Friedman says the way he understands it is that the state is not going to provide the counties with money to prosecute these cases upfront. The counties would have to go after the money in the form of a reimbursement.
There will also be more cases sent to Family Court which could burden that court.
Marianne Clattenburg, Vice Chair of the Genesee County Legislature, says the Raise the Age Law is tied in to the property tax cap issue and the future agreement with the sales tax sharing agreement with the Towns.
“According to the State, they will reimburse the counties for the expenditures that arise from the Raise the Age Law costs, somewhere around 3 million per year for Genesee County, but that reimbursement is contingent upon us not exceeding the property tax cap,” says Calttenburg.
So Genesee County can never go over the property tax cap or they will not be reimbursed for the Raise the Age expenses.
“If we lost the funding we figured it would be an automatic 10% increase in property taxes in Genesee County.”
Clattenburg says this is why the Legislature is discussing the option of keeping more sales tax revenue with the Towns so the County is able to maintain the needs of the County while staying under the property tax cap.
The state has also mandated that a new jail must be constructed in 3 years.
The County will not be able to fund a new jail through property taxes, the only other source of revenue for the County is sales tax. The new jail would be able to house female inmates which currently is a cost to the county as is sends female inmates to surrounding county jails with female housing.
“We may solve the cost of female inmate housing, but we may now have a youth problem.”
Currently, there is no designated detention facility for adolescent offenders in Genesee, Orleans or Wyoming Counties.
“This law as currently written is a train wreck as there are no real plans to be able to detain this population (i.e. there are no beds available) when its appropriate, the regulations for probation have yet to be published and local judges have not been trained to do arraignments,” says Donald O’Geen, District Attorney in Wyoming County.
O’Geen says his biggest concern has been the protection of victims in cases involving 16 and 17 year olds.
“When these cases go to Family Court there is a cap of restitution of $1,500 so when a 16 or 17 year damages your car, house, etc., the victims will be left out in the cold. The legislature failed to understand or appreciate the interplay between the criminal court and the family court as they didn’t allow for restitution to be handled the same as it is in criminal court. Victims will not have a right to speak or confront their assailants as there is no right in family court.”
O’Geen also says he concerned that the drug trade will grow using 16 and 17 year olds as runners because the only threat is family court.
“This law is a continuation of the legislature caring more about criminals than victims. The first was the drug law reform where they lowered the penalties for drug dealers and now the raise the age law will certainly allow the drug trade to flourish even more as now the 16 and 17 years will be the runners or mules for the drug cartels because if caught they will just be sent to family court. As the opioid epidemic continues we should be strengthening penalties and holding people accountable and not creating an easier drug trade.”