NEW YORK—When New York this month raised the age at which young criminal offenders would still be considered juveniles, it was a major change for a state that since 1824 had considered everyone 16 and older as an adult.
New York’s decision to take 16- and 17-year-olds out of the adult criminal system, the result of a bipartisan movement to rethink the get-tough-on-crime laws of the 1990s, is the most recent victory in the effort to move away from a focus on harsh prison sentences, particularly for juveniles.
Anti-crime legislation passed decades ago led the United States to incarcerate more of its residents than any other nation by far, and leaders on both sides of the aisle have looked for ways to change this fiscally challenging trend over the past decade.
Most US states, going back to the 1940s, set 18 as the minimum age to be tried as an adult. Yet in the tough-on-crime era of the 1990s, many states began to again make it easier to process young teens in the adult system.
States passed laws to exclude certain serious crimes, including drug crimes, from the juvenile system altogether. Many gave judges and prosecutors more leeway to decide whether a teen should be tried as an adult.
In the wake of New York’s move on April 10, North Carolina is now the only state that considers 16-year-old offenders as adults by default, and one of only six that include 17-year-olds in the adult system.
Jennifer March, executive director of Citizens’ Committee for Children of New York, marvels at how quickly the “raise-the-age” issue has moved from a grass-roots political push to a significant change in the state’s criminal justice system.
“Four years is short in the life of an advocate,” says Dr. March, whose organization helped establish the state’s “Raise the Age” movement in 2013, when concerns over aggressive policing and calls for criminal justice reform began gaining momentum. “Now we’re hopeful that other states in the country can look to our new law as we roll it out.”
Texas takes action
On April 20 in Texas, one of the six states that considers all 17-year-old offenders as adults, the House passed by a vote of 92 to 52 a similar bill that raises the state’s age of criminal responsibility from 17 to 18. Now the bill turns to the Texas Senate.
Missouri, another of the six states, is also considering a raise-the-age bill.
According to March, a growing body of research, from studies of adolescent brain development, to the rates of recidivism for young teens convicted in the criminal system, to the emotional and physical perils of prison life for 16- and 17-year-olds, have convinced more and more lawmakers that these young offenders, as well as society as a whole, are better served by the juvenile system.
“This issue, it impacts all of us,” says Jeree Thomas, policy director at the Campaign for Youth Justice in Washington. “When you think about the costs of incarceration, when you think about the physical and emotional costs on kids and the results on society once they're released – if we’re able to better serve the needs of those young people to help them become law-abiding citizens, that will positively impact all our lives.”
New York’s new law allows local district attorneys to keep a teen in the adult system, but requires them to prove “extraordinary circumstances” justifying the move. Violent felonies will also remain in the adult system, while other felonies will be moved to a youth division, where judges have specific training in family and childhood development issues.
“The law does also ensure that no young person would be in an adult jail or an adult correction facility,” notes March, citing the research that consistently documents how teens incarcerated with adults are at greater risk of violence, including sexual violence.
Threat to public safety
Opponents of raise-the-age bills, however, worry that not punishing 17-year-old offenders could pose a threat to public safety.
“Sadly, Raise the Age will re-victimize victims by taking them out of the process and allowing defendants to go unpunished,” said Steve Cornwell, the Republican district attorney in upstate Broome County, according to the Rochester Democrat and Chronicle. “And it will lead to the exploitation of children, who drug dealers will prey upon, to sell poisonous drugs, without the threat of criminal prosecution.”
In Texas, state Sen. John Whitmire, a Houston Democrat, worries that juvenile justice facilities, some of which are “out of control and dangerous,” would become even less safe with the addition of 17-year-olds, The Texas Tribune reported.
One of the reasons the raise-the-age bill gained momentum over the past few years, however, were high-profile cases of young teens beaten and abused in New York’s notorious Rikers Island jail complex, which officials have recently agreed to close, a process that could take a decade. Beginning Oct. 1, 2018, offenders 17 and under in New York will no longer be held in county jails. In 2019, 18-year-olds will also no longer be held in adult jails.
Teens in the adult criminal system also have a high rate of suicide, and are much more likely to commit crimes again once they are released, notes Brian Evans, the director of state campaigns at the Campaign for Youth Justice.
“I think for legislators, that fact – the fact that incarcerating kids just doesn’t work for its intended purposes – has been a real driver across party lines, showing that we shouldn’t continue a policy that harms kids and also isn’t providing any kind of benefit to public safety,” Mr. Evans says.
“So it is definitely progress,” he continues. “And it’s part of a trend in which we’re getting almost all US states to start kids under the age of 18 in the juvenile system.”
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On Monday, a Wisconsin judge ruled that the two 13-year-old girls accused of attempting to murder a classmate to impress fictional Internet character Slender Man will be tried as adults.
The teens face dramatically different treatment because of the judge's decision. Children tried as adults face longer sentences and fewer resources while incarcerated, and they're more likely to be assaulted in adult prisons than juvenile facilities.
If convicted in juvenile court, the 13-year-olds would have faced detention until the age of 18, followed by intense supervision and services when released back into their communities. In adult court, they face up to 65 years in prison. They may also be sentenced to a combination of prison and extended supervision under the Department of Corrections.
In Wisconsin, any juvenile over 10 years old charged with homicide or attempted homicide is automatically tried in adult court, but defense lawyers may request a trial in juvenile court for youth under 16. Waukesha County Circuit Judge Michael Bohren said Monday that defense lawyers "failed to convince him" the cases should be moved, according to the Milwaukee Journal Sentinel.
Lighter sentences in juvenile court are an acknowledgement of adolescents' changing brains and bodies, according to Mishi Faruqee, a juvenile justice policy strategist at the American Civil Liberties Union.
“The recognition is that when they're 18 or when they're 21 they can really be different people,” Faruqee told The Huffington Post. “The juvenile justice system can still hold young people accountable for their actions.”
Bohren decided to keep the girls in adult court because he was worried the girls would not receive proper mental health treatment or supervision upon their release, according to reports. A longer sentence would “protect people longer,” he said.
There's a tradeoff, though: Adult prisons aren't designed with kids in mind.
In Wisconsin, youth in juvenile facilities have access to a wide array of resources and workshops. The Division of Juvenile Corrections of Wisconsin has offerings including dialectical behavior therapy, which helps juveniles learn mindfulness, distress tolerance and emotion regulation; education; family services, including bus services for families and therapy; a foster grandparent program as mentorship; a juvenile cognitive intervention program, focusing on cognitive restructuring in adolescents; and a victim impact program, which emphasizes the rights of victims and identifies the harmful effects of crime.
Adult facilities offer some overlapping resources, but are targeted at older populations. Most offerings are for technical education training. Treatment offerings are for things like anger management and cognitive intervention, but many of the violence programs cater only to men. Additionally, not all programs are available in all of the state’s 38 facilities. By contrast, there are two formal holding facilities in the state for juveniles, one for boys and another for girls, plus an alternative academy for boys. Almost all juvenile programs are offered at both the boys’ and girls’ facilities.
Holding youth in adult facilities isn’t a new practice, but it recently has been gaining more national attention.
Last month, HuffPost’s Dana Liebelson reported about the lives of youth in the adult prison system, some of whom had experienced abuse and almost all of whom had contemplated suicide.Staff in juvenile facilities are “more likely to be trained to deal with teens,” she wrote, and minors in adult prisons are more likely to attempt suicide than their counterparts in juvenile detention. And after they are released, those who serve in the adult system are “77 percent more likely to be arrested for a violent felony than those who were sent to juvenile institutions.”
Youth are also five times more likely to experience sexual assault in adult prisons versus juvenile facilities, according to the Equal Justice Initiative.
Poet and filmmaker James Burns spent time in both juvenile and adult facilities as a minor. Since turning his life around, he’s become an advocate for those inside the system. He spoke to HuffPost about what he views as the most stark differences in the two systems.
“In the adult system, there is no rehabilitation,” Burns said. “I know there are some programs that exist, but those programs are very limited. Often times people come into the adult system and they come out with more problems than they had before they went in. … The juvenile system, while it is still broken in many ways, still offers more support than what an adult facility has. They're more geared towards treating juveniles.”
The two Waukesha girls are accused of stabbing a fellow classmate with the intent of murdering her. The girls allegedly planned the deed as a tribute to the fictional Slender Man, a paranormal creature who has supposedly been in existence for centuries. He is “rumored to kill children exclusively,” according to Creepypasta Wiki, a website that collects information on creepy Internet memes. The girls discovered Slender Man on the site and decided to kill their friend to show devotion to the figure.
Despite being stabbed 19 times, the victim managed to crawl out of the woods where she had been abandoned. She was taken to a hospital and survived.