For Their Own Good

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“Nym” was 15 years old when he caught his first case.

He was a passenger in a stolen car--though, to this day, he maintains he didn’t know the car was stolen before he accepted the ride. The police picked him up after the driver, an older acquaintance, crashed the vehicle.

The police brought Nym to the station. Following standard procedure, they called his mother to pick him up. Had she retrieved him from the precinct, the last four years of his life might have turned out very differently.

Instead, she told the police to keep him overnight--setting in motion a chain of events that would result in him going upstate until his 18th birthday, at a cost to taxpayers of $125,000 a year.

“She said, ‘The first time you get arrested, I’m going to let you spend the night in the precinct,’” he recalls. Like many parents, she couldn’t have realized the consequences.

Many kids arrested for riding in a stolen car will never see the inside of a juvenile facility. But whether they get sent upstate for this or almost any other crime depends largely on whether they’ve been attending school, have a sober parent at home, ever got into fights--almost anything besides the crime itself.

At sentencing, or “disposition,” in family court lingo, judges are required to impose the least restrictive alternative in keeping with a young person’s best interests and the need to protect the community. In practical terms, judges look at the supervision in a child’s home--and usually that means scrutinizing their mothers. They’ll look at a parent’s mental health, whether she’s a substance abuser, even housing conditions. It’s all part of assessing whether she is able to exert authority over the youngster.

Nym’s mother was in court with him the day he was sentenced. But it was too late. The judge decided that his mom couldn’t handle him.

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The number of young people sentenced to confinement upstate is shrinking. There were 2,142 in 2002, down from 2,740 in 1995.

Yet more and more of them are being sent up on less serious crimes, according to data from the state Office of Children and Family Services (OCFS). In 2002, for the first time in at least 10 years, admissions to juvenile facilities for crimes against property outnumbered those for crimes against people.

In 2002, 140 young people were confined for criminal mischief, such as graffiti or vandalism; 294 were for larceny--shoplifting, snatching a bag from an empty office, and the like; and 111 were for riding in a stolen car. Another 237 cases were related to drugs, marijuana included. The Vera Institute of Justice reported last year that more than half of the juveniles incarcerated had committed misdemeanors.

Family Court judges make these decisions, but they’re guided by the New York City Department of Probation. The agency makes recommendations to judges about whether a young person should be locked up or paroled pending trial. It can decide to divert a case before it even gets to court.

If a defendant is found guilty, probation conducts an investigation and makes a recommendation. Its reports are critical to judges’ decisions in moving to “place” a young person in jail or let them go.

The Department of Probation is now making major changes in how it deals with young people like Nym. It is collaborating with the Vera Institute’s Project Esperanza to ensure that more young offenders remain in the community instead of in jail.

The changes are guided by a very simple fact: There’s little if any evidence that locking up nonviolent young offenders does anything to reduce crime. More than half of the boys released from state facilities are arrested again within nine months, and 81 percent within three years, according to a 1999 study commissioned by the state legislature. That’s not surprising, says Probation Commissioner Martin Horn: “When you send a kid to placement, you haven’t done anything about the home the kid has come from, about the school situation.”

Cases like Nym’s confound the commissioner. Why are the courts sending young people to jail for minor offenses? “Often placement decisions were made for reasons unrelated to the degree of danger presented by the child,” says Horn of family court--like problems with their families, or housing, or school attendance. “All the wrong reasons.”

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Like Horn, lawyers, judges and probation officers who work with adult criminal defendants are frequently puzzled when they discover that, in family court, youngsters who don’t appear to pose a risk of violence are sent away and incarcerated.

Nym was charged with grand larceny, unauthorized use of a vehicle and reckless endangerment. The judge sentenced Nym to up to 18 months in a facility overseen by OCFS. That turned into three years, after OCFS petitioned to extend placement through his 18th birthday. (Nym says his stay was extended for challenging the staff’s authority too many times.)

Adults rarely do three years on a car case. Had Nym been just one year older when he was arrested, he would have gone to criminal court, where he would almost certainly have been able to work out a plea bargain that didn’t involve prison time.

But in Family Court, the rules are different. After finding a youngster guilty, judges are allowed to impose a wide variety of sentences, ranging from dismissing the case to probation to sending youngsters to OCFS--which usually places them in locked facilities upstate.

Whether the arrest is for possessing a loaded gun or writing graffiti, family court judges are required to figure out a sentence by weighing what’s best for a youngster with the need to protect the community. They are supposed to impose a “least restrictive” alternative--probation over confinement--wherever possible.

“The whole mindset of family court is that the level of the crime does not dictate the outcome,” says Jacqueline Deane, who trains attorneys at the Legal Aid Society’s Juvenile Rights Division. Instead, judges look at the broader picture: the child, the family, school, the home environment and prior court history.

This discretion works to some kids’ advantage. If they’ve committed a serious offense but have other factors in their favor--they’re attending school regularly, the parents are appropriately concerned, and the offense appears to be an aberration--judges sometimes impose probation.

But the flip side is that teens who have committed relatively minor offenses end up sent away for far longer than adults convicted of similar crimes. Bart Lubow of the Annie E. Casey Foundation ticks off the reasons he’s seen in New York courts and others: “Lousy school careers, the parents may abuse substances, the families may be less than ideal, it may be a very poor family living under very tenuous circumstances, maybe one of the family members or more is incarcerated,” says Lubow. “With kids who are most likely to end up in residential placements for minor offenses, you tend to find a constellation of these needs and issues in play.” Lubow is an expert on New York City’s juvenile justice system, a veteran of a failed attempt in the 1990s to send fewer youngsters to detention pending trial. He is now the Casey Foundation’s director for system and service reform.

“We often describe family court as quicksand,” says Mishi Faruqee, director of the juvenile justice project at the Correctional Association. “Once you get caught in family court, you get deeper and deeper.”

Sometimes young people agree with judges who want to send them off to juvenile facilities--they’re thrilled to be getting out of bad homes. Take 17-year-old “Grimes.” He says he “loved” Berkshire Farms, the upstate center his judge sent him to after he got into a fight at school. Grimes had been in foster care but continually ran away, back to his family, even though he had suffered abuse growing up there. Based on those circumstances, a Bronx judge decided Grimes would be better off in a juvenile facility and sent him to Berkshire Farms.

But his stay there didn’t solve anything. After two years there, Grimes was released--and immediately rearrested for fighting at school again. Berkshire Farms took him back for another year.

Courts also examine school records. Kids who don’t attend class or who are failing courses, or who’ve gotten into trouble for things like fighting, are much more likely to be incarcerated than honor students.

For many kids, the problems start early. In elementary school, Nym was suspended for fighting. Judges look at that history when they decide on sentencing. It literally goes on a kid’s permanent record.

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Judges, it turns out, don’t like this state of affairs either. “There’s a certain degree of angst here,” says Joseph M. Lauria, administrative judge for New York City family courts. “You’re trying to do the right thing for the youngster and the community. We certainly want, if there must be a placement, for the placement to be as short as possible and return to the community and be a productive individual.”

He adds, “No one goes into this saying, ‘Let’s see how many youngsters we can place.’”

Judges typically do go in with the intent to rehabilitate a young offender. (That’s why Judge Lauria says it’s a mistake to even compare juvenile sentences with adult ones--”It’s apples and oranges. We have a different philosophy. It’s not punitive--it should be rehabilitative.”) But the reality is that most of the kids in OCFS care live in locked facilities and a restrained environment. They’re transported to and from some facilities in handcuffs and leg irons; a few of the most secure centers are ringed with barbed wire. While the “limited secure” centers aren’t quite Attica, they’re not group homes, either. Kids in the centers usually aren’t allowed to leave unescorted, and, in some cases, they’re not even allowed to venture from room to room.

Why subject petty offenders to months or years of this? In many cases judges feel that the years of problems that preceded a crisis are too big for the courts to solve. Instead, it seems less risky to just send the youngsters upstate for a while, in hopes that some time away will do everyone good. The problem is, it does nothing of the kind.

“The system operates on the basis of certain myths, or certain sacred cows, that it just hasn’t been willing to confront--and one of them is that out-of-home placement is good for kids,” says Lubow. “You’re talking about a kid going away for maybe a year, and then that kid’s returning home, and the family’s exactly the same, and what do people think had made a difference?”

Nym was released early in 2004, when he was 18. “You feel violated when you come home,” he says. Little things, like 50-cent pay phones, “bugged me out.

“For a long time, I used to blame my mother,” he says. Now, he says he’s over that. Now he wants to go to college in Canada, where he intends to study music marketing.

But first he has some unfinished business in New York City to take care of. Like most young men who’ve done time with OCFS, Nym was rearrested almost immediately.

Nym’s next arrest, in June 2004, was for assault. After a few months on Rikers Island, he struck a deal to get probation.

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Starting about six months ago, the New York City Department of Probation launched a new effort to keep young offenders out of juvenile facilities when they don’t need to be there. A partnership with the Vera Institute of Justice, Esperanza/Hope works to maintain youngsters at home with their families.

Since last October, Esperanza has kept 200 delinquents at home who would otherwise have been sent away to juvenile facilities. Almost any juvenile defendant is eligible; the only exceptions are those with “obvious and severe mental health problems” and those whose parents refuse to cooperate.

This “home-based placement” program assigns MSW social workers to work closely with the entire family and serve as mentors for the teenager on probation; each has no more than 10 cases at any time. Workers make regular home visits, and someone is always available for emergency calls. They offer or refer family members to services, including counseling, drug treatment and assistance with housing. All this continues for four to six months, at a cost of $8,000 to $10,000 per young person--far less than the expense of confinement.

Probation’s goal is to reduce the number of youth sent to OCFS from 1,400 last year to 1,100 this year. After six months, 65 percent of the youngsters referred to the program are still in good standing, boasts Horn--an improvement over the 50 percent of young men usually rearrested within six months of leaving state facilities.

The department has tried intensive probation programs before. It didn’t get far. Prosecutors from the Corporation Counsel resisted. The state, which helped finance prior efforts, put bureaucratic blocks in place. Judges, meanwhile, lost faith after discovering that caseworkers didn’t always report back to them promptly when problems emerged. “Credibility with the court is of the utmost importance,” says Lauria. When judges “find out they’ve been misled,” he says, they’re reluctant to trust that program again.

This time around, Lauria is cooperating with Probation. As Esperanza gets going, courts are sending youngsters to the project’s home-based placements and hoping it works out. Lauria says time will tell; if the recidivism rate is any lower than it is now, he will consider it a success.

Esperanza is something Vera has wanted to push for a long time. When Horn showed up, the institute found an enthusiastic partner. For the commissioner, Esperanza is just one aspect of a larger plan to reduce rates of juvenile incarceration. “We think we’ve changed Probation’s role,” says Horn. “We’re moving to restoring the concept of best interest of the child combined with best interest of society.”

Since taking the reins at the Probation department in 2002, Horn, who is also commissioner of Correction, has spearheaded initiatives to not only reduce the number of youngsters sent upstate but to send fewer kids through the court system in the first place. Probation has the power to divert delinquency cases from judicial system altogether, but in the past only diverted 8 percent of arrests.

That’s because diverting a juvenile takes careful work. To put the brakes on prosecution, Probation needs to get the consent of the police officer, victim or other party involved in bringing the case. Under Horn’s direction, the agency is now making an effort to track those parties down and secure their cooperation--and in the second half of last year, diversion increased to 23 percent. “We think we can do better yet,” says Horn.

The probation department has also taken another look at the process by which probation officers make sentencing recommendations to the court. Officers used to mostly go with their gut. But recently, Probation asked Vera to create a “probation assessment instrument”--an analysis officers use to evaluate the needs of youngsters as well as the strengths of their families. The process “reserves a recommendation of placement for the most severely disadvantaged kids,” says Horn. In the last 18 months, the probation department has gone from recommending placement in 50 percent of cases to seeking placement in only 35 percent of cases.

Lest anyone think that the man in charge of New York’s prisons and probation is soft on crime, Horn knows how to frame the issue. “I’m a fiscal conservative,” he says. “I believe that taxpayer dollars belong to taxpayers. When I look at what we spend on placement and what we get for it, it offends me.”