It started with a cell phone.
Last summer, Jay (not her real name), a 16-year-old living in upstate New York, was convinced a woman had taken her mother’s phone, police say, and went to the woman’s house with three friends to retrieve it. They broke in, according to police, and took some other things—including jewelry and makeup—while they were there.
When the woman threatened to call the police, Jay tried to return the items, the police said, but she didn’t return all of them. The woman notified the police and Jay was arrested.
If the incident had happened today, Jay’s case most likely would have been resolved in family court, without criminal penalties. But since it allegedly happened last summer, she was charged as an adult in criminal court with burglary in the second degree, a violent felony that carries a maximum sentence of 15 years in prison.
That’s because the state changed the way it treats 16-year-olds in the criminal justice system, starting on Oct. 1. Recognizing that teenagers like Jay are prone to impulsive behavior because their brains are still developing, New York lawmakers passed the Raise the Age law in 2017, shifting the age of criminal responsibility from 16 to 18.
(For 17-year-olds, the law will change Oct. 1, 2019.)
Around 21,000 16- and 17-year-olds were arrested in New York last year. Before Raise the Age, New York and North Carolina were the only two states where those 16- and 17-year-olds were automatically prosecuted as adults in criminal court.
Under the new law, the vast majority of their cases will now be diverted to family court, which is meant to emphasize more age-appropriate solutions like counseling and community services over criminal punishment. Only the most serious cases will stay in a new youth part in criminal court.
But for 16-year-olds like Jay, whose cases were pending when Raise the Age went into effect, the old system is still in place. And research shows that system can do permanent damage to their well-being and derail their futures.
“There are kids similarly situated who are being treated totally differently,” said Jay’s attorney, Lauren Parnes. “They could have been arrested right afterward and these cases are now on two totally different tracks.”
For Parnes, the timing is particularly tragic in Jay’s case because this is her first arrest and she almost certainly would have benefited from having her case heard in family court rather than criminal court.
Jay’s mother is a drug user and frequently kicked Jay out of the house, Parnes said, leaving her homeless. Even when she was at home, the power and hot water were often shut off, Jay said, making her unable to shower for school. And Jay’s father lives more than 1,500 miles away in a different state.
Parnes declined to name the town where the alleged crime occurred or the prosecuting district attorney to protect her client’s identity.
In family court, she explained, a judge probably would have seen a girl in need rather than a criminal. The judge might have brought in the Department of Social Services, Parnes said, to help stabilize Jay’s housing and help her access things like food stamps and Medicaid.
“There’s all these sorts of needs that aren’t being addressed.”
Ramen and Mountain Dew
Jay’s situation has echoes across the state. In Schenectady, a 16-year-old was recently charged with third-degree robbery for allegedly stealing a pair of Jordan Pro Star sneakers and fourth-degree grand larceny in the theft of an Apple iPhone 7. Because the alleged robberies occurred in May rather than October, he now faces up to 11 years in prison.
In Plattsburgh, a 16-year-old boy was charged with third-degree burglary after breaking into his mother’s home last summer and stealing ramen and Mountain Dew. Thanks in part to prior arrests for crimes like petit larceny and unauthorized use of a vehicle, the teen’s attorney said, he was sentenced to six months in jail with five years probation.
The attorney, David Gervais, said he was especially disappointed that the judge would jail his client for stealing food.
“It’s not like he went in to steal medication or to steal cash,” Gervais said. “He didn’t touch anything else. He just literally went in to get food.”
The teen needs rehab, not jail time, Gervais said. Neither the judge nor Andrew Wylie, Clinton County’s district attorney, responded to requests for comment.
Of course, many judges in adult court choose to sentence kids to probation rather than lock them up. Another 16-year-old, in the town of Attica, was arrested in September and charged with second-degree burglary for allegedly stealing an Xbox One from someone’s home.
Like Jay, he now faces up to 15 years in prison. But Wyoming County District Attorney Donald O’Geen said that’s unlikely to happen.
“It will most likely end with the defendant receiving a youthful offender adjudication (which means the criminal record will be sealed) and some term of probation,” O’Geen wrote in an email.
O’Geen added that the incident shouldn’t be downplayed.
“Whether the burglary was committed by a 16-year-old or a 61-year-old, it is still a violent crime and there is still a victim who now lives with the fact that someone has violated the sanctity of their home,” he wrote.
“Family Court is not the place to send cases for solutions as they have no teeth.”
But in criminal court, even probation often carries major risks for young offenders. In the New York City borough of The Bronx, Derek (not his real name), a 16-year-old who allegedly tossed away a gun during a police pursuit in June, was charged as an adult with gun possession. The judge offered him five years’ probation, but his attorney is worried that a mistake like smoking marijuana or missing too much school could land him in prison.
A family court judge might have placed him in a therapeutic group home for some period of time, or ordered him to attend outpatient programs to address substance use or mental health issues, notes Gregg Stankewicz, director of the Adolescent Defense Project at the Bronx Defenders.
And that’s a smarter approach than criminal punishment, he said.
“That’s why it’s so important that we don’t permanently set back these young people, either with a record or with the physical and mental harm that can come from incarceration,” he said.
That approach benefits public safety as well, he said. Several studies have found that young people transferred to the adult criminal justice system are more likely to reoffend than those treated as juveniles.
“For the health of the community and the child,” Stankewicz said, “we need a more rehabilitative system that’s focused on repair.”
While many public defenders want Raise the Age to go further, some prosecutors question whether it’s needed at all. The District Attorneys Association of New York referred a request for comment for this story to Washington County District Attorney Tony Jordan, a member of its executive board.
Jordan said that even before the law, less than 5 percent of the 16- and 17-year-olds arrested ended up with permanent records.
Prosecutors have long offered young people access to diversion programs, he said, and used incarceration only as a last resort.
“We’ve always looked at a 16-year-old as a 16-year-old,” Jordan told The Appeal. “Sometimes their actions are such that there’s a different consequence, but we never lose sight of the fact that they’re a 16-year-old.”
Nancy Ginsburg, director of the Legal Aid Society’s Adolescent Intervention and Diversion Project, pushed for the law, yet acknowledges that some judges and prosecutors in the adult system assess teens’ cases fairly.
But she said adult court lacks the breadth of services and legal options available in family court.
“It’s just not possible to fairly adjudicate kids in a system that was created for adults,” she said.
There are already signs that some district attorneys will resist the new law. Patrice O’Shaughnessy, a spokesperson for the Bronx DA’s office, said cases are assessed “on an individual basis.”
But even now, the office would argue to keep cases involving 16-year-olds with guns in criminal court.
“Since the Raise the Age law went into effect if [a] 16-year-old is charged in a gun case, we would ask to keep that case under ‘extraordinary circumstances,’” she said, alluding to a provision in the law that prevents some cases from being transferred from criminal to family court.
What Constitutes ‘Extraordinary’ Circumstances?
Stankewicz of the Bronx Defenders finds it troubling that the DA is looking to exclude certain groups of teenagers from the law’s protections. “If the District Attorney’s office believes every gun possession case is ‘extraordinary,’ they misunderstand the nature of Raise the Age,” he wrote in an email.
The law states that absent “extraordinary circumstances,” a gun possession case would stay in criminal court only when a firearm is displayed. “A blanket position that every firearm possession amounts to ‘extraordinary circumstances’ would be an attempt to get around the intent of Raise the Age,” he wrote, “and to continue using the adult criminal justice system against children.”
As prosecutors and public defenders debate the new law, some attorneys say the kids who just missed it should be part of the conversation.
“The reason they implemented this legislation existed when my client allegedly committed this crime,” said Parnes, Jay’s lawyer, who said she thinks the law should have covered 16-year-olds whose cases were still pending when it went into effect.
Brian Degnan, who represented the teen who allegedly stole the Xbox, agrees. He said he tried to argue that point in court, but the judge in the case, Michael Mohun, said his hands were tied by the law. (Through a spokesperson, Mohun said he could not comment on the case.)
But Degnan doesn’t blame the judge for his client’s misfortune.
“He’s getting lost in the legislative shuffle,” Degnan said. “I think it was very short-sighted on the part of the legislature.”
The kids who were left behind have reached the attention of the state legislators who shepherded Raise the Age to passage, according to Cathy Peake, chief of staff for Assembly Member Joe Lentol, who was a lead negotiator on the law. Lentol’s office has heard concerns about 16- and 17-year-olds still being charged as adults.
Emboldened by Democrats gaining control of both houses of the state legislature, Peake said the office is starting to hold meetings to discuss Raise the Age fixes, such as requiring courts to automatically seal the cases of 16- and 17-year-olds arrested or convicted before the law took effect.
“It’s not uncommon that we fight to get a good law and then we come back to make it even better,” she said.
For now, however, Jay is on edge. She is living out of state with her aunt and uncle and trying to get her GED. “I’m doing so good out here,” she said.
But with her case still open, the threat of incarceration is hanging over her head.
“Doing jail time really scares me,” she said.
If she were given a chance to take her case to family court instead, “maybe they would have seen that I really made a mistake,” she said, “and that I’m trying to change.”
Cassi Feldman is a 2018 John Jay/Tow Juvenile Justice Reporting Fellow. The Crime Report is pleased to co-publish this article, which also appeared today in The Appeal. Reader’s comments are welcome.