‘Raise the Age’ Law is Step Forward for New York, but Questions Remain

New York will no longer automatically prosecute 16 and 17-year-old's as adults. But recent legislation still has avenues through which juveniles can reach the adult system.

June 1, 2017

A topic of debate for lawmakers across the country has long focused on whether or not to raise the age someone can be prosecuted as an adult. Measures in Texas and Missouri failed. One in North Carolina looks promising. And, after two decades of lobbying efforts by criminal justice advocacy groups, a ‘raise-the-age’ bill was finally passed in New York.

Governor Andrew Cuomo signed legislation last month raising the age at which youth are prosecuted as adults. Prior to the signing of the new bill (Education, Labor and Family Assistance Article VII, or ELFA), New York was one of just two states (the other being North Carolina) that automatically prosecuted 16 and 17 year old’s as adults. New York’s new law, while a step in the right direction, still provides pathways for youth to be charged as adults.

New York now joins a growing number of states reforming their laws to reflect the growing body of scientific evidence on the neurological differences between adults and adolescents. According to the MIT Young Development Project, the human brain does not finish developing until the mid-20s. Because of this, adolescents tend to act impulsively, without fully weighing the potential consequences of an action. Society has taken this evidence into account, and as a result limited what kids can do. They cannot rent a car, buy a lottery ticket, buy cigarettes or alcohol, or see an R-rated movie without parental guidance. However, when it comes to crime, the script is flipped and suddenly they’re now on par with adults.

This places young people in the adult correctional system, an environment that leaves them vulnerable. Here, young people are the most at risk for sexual assault, making up 21 percent of all cases of sexual violence by other inmates. Many are separated from the adult population, placed in solitary confinement for protective measures. But that too, can do harm. Solitary confinement breeds a risk of suicide, which increases 36 times for youth incarcerated in adult facilities, versus juvenile facilities. It is the grim stories accompanying these statistics that propelled national momentum for “raise the age” legislation.

One particularly tragic story was that of Kalief Browder. In 2010, 16-year old Browder was arrested on robbery charges for stealing a backpack. Because his family was unable to pay the $3,000 bail, he was held at the Rikers Island jail. There, he spent approximately 800 days out of 1,000 in solitary confinement, before he was ultimately released five days after his 20th birthday. In 2015, at age 22, he committed suicide. His story outraged the public, prompting New York Mayor Bill de Blasio to push for a solitary confinement ban for inmates under 21, and inspiring a six-episode documentary produced by rapper Jay-Z.

Treating a juvenile as a juvenile not only benefits the individual, it also makes sense for society.  Research has shown that youth placed in juvenile facilities reoffend at lower rates than those punished in the adult system. According to one study, youth released from adult correctional facilities are 34 percent more likely to recidivate than those held within the juvenile correctional system. In addition to the public safety benefits, placing youth in the juvenile system saves money. In 2007, Connecticut raised the age at which individuals could be punished as adults. While they anticipated an increase in juvenile corrections spending, the state reduced spending by $2 million. Texas had estimated a net benefit to the state if its law had passed.

Although the “raise the age” bill is a progressive move for New York, its new law can and should go further. While no longer automatically placed in the adult system, youth can still be charged as adults. According to the new legislation, if accused of a violent or non-violent felony, juveniles are sent to the “youth part” of adult criminal court. In the case of a non-violent felony accusation, the case is automatically transferred to family court after 30 days unless the prosecutor demonstrates “extraordinary circumstances,” a term that remains undefined within the legislation. In fact, because he was charged with a violent felony (robbery) Kalief Browder would likely still be processed through the adult system if he had been arrested under the new law.

The intent of this legislation is to protect our still maturing youth from a system that they are not mentally or emotionally ready for. It is commendable that New York passed “Raise the Age” into law and can now reclaim its crown as a progressive leader but the work is far from over.