A 15-year-old girl charged with shoplifting is in Family Court for trial testimony. A half hour was allotted by the court for today's testimony, but the court is running late and the hearing begins an hour later than the "time certain" it was scheduled for. "Where are your parents?" the judge asks the girl. "They were supposed to come to court with you today." The girl's lawyer leans in to hear her response. "Her mother is at work, Your Honor," he says, "and her father is in New Jersey." "I reminded my moms last night," the girl volunteers, "but she couldn't take off work."
"It's not like a beauty parlor appointment," the visibly frustrated judge retorts. "You can't just cancel an appointment for a trial."
But without the necessary witnesses, the trial cannot proceed. The judge barks out four sets of dates and times for the next hearing: one lawyer can't attend; another has a conflict in a nearby courtroom; the child's law advocate will be at a conference. Six minutes after court is called to order, a date is set for two months out. The girl embraces her grandmother, who was perched on a bench at the back of the courtroom. The court reporter picks up her library book as she waits for the next proceeding; the trial participants file out.
When to call it 'crime'
Part of a system both human and bureaucratic—think Franz Kafka meets Rube Goldberg at the passport office—each of New York City's five Family Court buildings contains multitudes: dozens of courtrooms; hearing and conference rooms; offices for important secondary players like adoption services and the Department of Probation; areas for public information and assistance and vast waiting zones furnished with generic linoleum tile and smooth wooden benches variously filled with parents, children, aunts and cousins, lawyers, social workers, caseworkers and mental health and medical professionals—all waiting their turn to go before a judge.
Behind the scenes, youth in detention—players in the fourth specialty of Family Court, which handles juvenile delinquency cases—wait behind closed doors in each building. As their cases are called, they are brought up various sets of interior stairs, handcuffed, before they enter the courtroom through a private door. Their wait is invisible.
What they will encounter once they pass through the door of juvenile court is different from what they'd see in a criminal courtroom.
The most significant difference between the court structures, after age, is that criminal court tends to focus more on guilt and punishment, while Family Court aims instead to rehabilitate young people by providing programs, education and support, which can include placement in youth facilities.
Family Court also comes with its own nomenclature; the vocabulary of juvenile justice reflects its separate and distinct mandate. A child of 7 to 15 years old who commits what would be recognized as a crime if committed by an adult is described as a juvenile delinquent. The act is called not a crime but a delinquent act, in recognition that children and young teens are not adults. Young teens who are found guilty of serious crimes (like sexual assault, or arson) are described as juvenile offenders. If found culpable, they receive more serious penalties than juvenile delinquents.
Statewide, about 24,000 children were arrested as juveniles in 2010, the year for which the most recent statistics are available. Half of those arrests were thrown out of court.
Of the rest, 1,300 led to placement in secure youth facilities. More than 3,600 children and youth were placed on probation and returned to the community, living with their families, in group homes or in "non-secure" state residences.
In New York City, 90 percent of criminal charges leveled against young people relate to robbery or assault. Only about 3 percent of cases involve weapons; 2 percent relate to sexual offenses, with arson and homicide each making up about 1 percent of the total. Indeed, more than half of juvenile delinquency rulings and over 90 percent of cases in which kids are placed in juvenile justice facilities relate to misdemeanors. Despite the low-level nature of the crimes being adjudicated, the annual cost for a child's stay in a secure facility exceeds $275,000—nearly 17 times the money spent per pupil in a New York City public school.
Like all crime, delinquency does not occur in isolation. More than half of all children involved with the juvenile justice system enter the system and the court with other pressing needs: 58 percent need mental health services, 56 percent have substance abuse issues, and 46 percent have been identified with special education needs. One in 12 is homeless, while 63 percent of youth with cases in the juvenile justice courtrooms (which also oversee the PINS—or persons in need of supervision—process, through which parents and guardians turn serially unruly kids over to state supervision) are black and 29 percent are Hispanic. Four in 5 children in juvenile justice cases are boys.
Tough calls for judges
A 15-year-old boy, flanked by his Legal Aid lawyer, stands at a conference table on the left side of the courtroom. He hitches up his jeans with his left hand as he raises his right and swears to tell the truth. No family or friends are in court with him; the visitors' bench in the gallery, behind a low railing, is empty. His lawyer tells the judge that his grandmother and brother are "on their way" to court—but the hearing began an hour later than scheduled, and their whereabouts are unknown.
The hearing at hand is to assess the boy's progress as part of his juvenile delinquency case; the judge says she is pleased with a positive report from the group home where the boy is placed, saying that he can be "argumentative" but that "given time to reflect, he moderates his behavior." The boy, now seated, straightens his shoulders a bit. He does not speak.
The boy's Legal Aid lawyer says his client wants to go home. But the lawyer across the courtroom, a city Corporation Counsel serving as prosecutor, says the boy's mother does not want him to return—and that no extended family or other kin have stepped up to get involved. "He has no place to go," the city lawyer says. The boy flinches; he blinks.
"His mother is already being investigated by ACS" on charges of neglect, the city's lawyer says.
The boy's attorney tells the judge, "Family support would be good, like the services that follow a finding of neglect."
But as the charge of neglect against the boy's mother is under investigation and not yet proved, no services can be provided. Without the finding, the boy and his family can't get help.
"How about Cayuga?" the judge asks the lawyers, referring to a group home hundreds of miles from New York City. To the boy, she says, "I know you're not happy about being in a group home, but you should be proud of the success you're having in school," noting awards for school improvement that have been submitted by his attorney. The boy listens, impassive. Hearing finished, he leaves the courtroom, with an escort, for Cayuga.
Faced with a juvenile who is charged with committing a crime, a judge has a spectrum of options to address the alleged offense: She can dismiss the petition of the city altogether, if the charges seem baseless or the case flawed. She can, after an initial hearing, "ACD" the case—essentially buying the court six months to monitor the youth's behavior by issuing an adjournment in contemplation of dismissal, which basically erases all records of the case and the charges. She can issue a conditional discharge, where a youth's future freedom is contingent on behavior and factors like attending school and following curfews. She can ask that a youth be placed on probation in the community or sent to a secure facility for up to three years. Juvenile justice petitions have been steadily declining since 2005, according to ACS. More than 9,000 juvenile delinquency petitions were filed that year, compared with 6,417 in 2011.
While this is real progress, it still represents 17 youth arrests, on average, every day of the year.
Volume aside, the system as it stands is not working: A quarter of all youths convicted of juvenile delinquency are rearrested and reconvicted within 12 months of their release. Nearly half are reconvicted within 48 months.
Many youth the state describes as delinquent have had prior contact with another state's system. These children, called crossover youth, are either living in foster care at the time of their arrest or are members of families who were involved in abuse or neglect complaints. Nearly half of children admitted to detention, where youth await the resolution of their juvenile court case, have also been part of the foster care world.
Of nearly 5,400 children arrested and detained in 2010 in New York City, 48 percent had previous or current foster care involvement, Sara Hemmeter, ACS's associate commissioner for family and youth justice programs, says. More than 300 were living in foster care settings at the time of their arrest; more than 1,500 had received ACS-administered preventive services on previous Family Court orders. (ACS spokesperson Tia Waddy said that ACS does not have data on how many children actually placed in juvenile-justice facilities are "crossover" kids because ACS does not track that statistic.)
Reform stirs hope
That half of all children arrested in a year had prior contact with the child welfare system is evidence of the not altogether shocking fact that children of families in turmoil can grow up to face their own struggles. This connection was a major impetus for the 2010 merger of ACS and the Department of Juvenile Justice, bringing under one institutional umbrella both youth justice and probation services as they relate to child welfare.
It's also a reason the mayor and governor now seek to bring low-level juvenile offenders who are incarcerated, often at prohibitive distances in remote rural towns, to New York City to serve out their placements in less punitive, more rehabilitative settings. (The Close to Home initiative was approved and funded in the current state budget. It is anticipated to save the state $4.5 million in its first year and $27 million in the next.)
Supporters of Close to Home say it will give young people a better chance to turn their lives around—and lower recidivism, saving the state additional millions. Relocating youth to facilities that are more homelike than institutional will go far in mending New York's reputation for harsh and abusive treatment of incarcerated youth.
Officials and advocates celebrate Close to Home as real progress for the city's youth. But again, we are not in the forefront of change: New York's adoption of the Close to Home detention model is in line with examples that have been set nationwide since the 1990s. There's no doubt that keeping kids closer to home will mean that children can have the steadier support of parents, siblings and the extended community. But it doesn't actually address the disturbing crossovers from foster care or abuse and neglect cases to juvenile justice.
In fact, some ACS staffers seem reluctant to view the crossover phenomenon as a problem in itself. "I don't know why there are so many crossover kids," Dawn Saffayeh, ACS's deputy commissioner for policy, planning and measurement, says. "They live in neighborhoods with a strong police presence. These are the youth that are getting arrested."
"It's separate," explains Andrea Reid, ACS's assistant commissioner for the office of family permanency team conferencing. "We try not to lump all the cases together. Foster care and preventive services are about impaired parenting. Delinquency is about the young person's behavior."
The agency does, however, acknowledge that existing programs don't yet meet the real need.
"We have been looking at services for adolescents. Services for adolescents are definitely a focus of the commissioner's strategic plan, driven by these numbers," Hemmeter says. "A lot of our preventive agencies do struggle with adolescents and their behaviors."
New York State Office of Children and Family Services data document staggeringly high rates of re-arrest within two years of a youth's release from placement for felony offenses: 66 percent of boys are rearrested—for new felonies, in nearly half the cases. Long-term study of children followed for a decade or longer after a Family Court found they'd committed a felony shows that 91 percent of those placed at 16 were rearrested by the age of 26. The outcomes aren't much better for youths who were older at the time of their first felony dispositions: Nearly 85 percent were rearrested before their 30th birthday.
Calling kids 'adults '
The biggest flaw in New York's juvenile justice system, however, is not what goes on in juvenile courts. It's the cases that are heard somewhere else.
Every 16- and 17-year-old charged at any level in New York State is regarded as an adult. New York and North Carolina are the only two states that continue to regard these older teens as adults in criminal court. It is a dubious distinction. As New York State chief judge Jonathan Lippman said in February in his State of the Judiciary address, "Our statute is a relic."
New York insists on trying all 16-year-olds (and some younger children) as adults despite ample neurobiological and psychological evidence that the brains of young people are not fully developed. As nearly any parent—or anyone who was a teenager—can attest, the youthful brain lacks maturity. Clinicians say that the prefrontal cortex, the area that governs impulse control and risk-taking behavior—hallmarks of adolescence, especially the testosterone-steeped variety—matures last, often into a person's mid-20s.
Scientific evidence aside, the law counts 16-year-olds as adults—for offenses as mild as turnstile jumping and graffiti or as grave as murder and arson—with disastrous consequences. Young teens of 13, 14 and 15 who commit more serious or violent acts may also be treated as adults, with cases heard in New York State Supreme Court or Family Court. If they are convicted, these young people carry criminal records, which limit their personal, educational and professional prospects for decades to come. College admission requires disclosure of prior convictions, which likely raise serious concerns for admissions personnel. A criminal record limits access to student loans; professional licensure for some trades (a barber, for example) is out of reach. Families living in public housing may lose their home if any family member has a criminal conviction.
Children who are convicted in adult court serve time—or are remanded awaiting trial—in adult facilities, where violence and sexual abuse are real threats.
"All children, regardless of the severity of their crime, should be housed only in youth facilities," Gabrielle Prisco, head of juvenile justice at the Correctional Association, says. "Children in adult jails are 50 percent more likely to face an armed attack by another inmate and are twice as likely to be assaulted by prison staff, compared with adults." New York City's recent experience with a guard-run, fight-club-style operation involving teenaged inmates at Rikers Island is one example that cost at least one child his life.
"Whether they are awaiting trial or sentenced to less than a year in jail or in prison, teenagers in adult facilities are five times more likely to experience sexual abuse, including rape, and 36 times more likely to commit suicide" than youth held in youth facilities, Prisco says.
New York does offer one free pass to youths charged with low-level offenses. For a first offense that's not overtly violent or dangerous to others—typically, being caught with a small amount of pot or shoplifting—a youth will be given a youthful offender "finding." A low-level misdemeanor can be converted to a violation, and there will be no permanent record of an arrest or conviction. But if that young person is arrested again, on any charge, the youthful offender free pass is gone, and he or she is tried as an adult.
Because Lippmann and many others recognize that charging children as adults comes with flaws and profound long-term risks, a new pilot program is under way to create a distinct and dedicated space for youths charged as adults. Five courtrooms called Adolescent Diversion Parts opened this January in New York City; four more are scattered across the state. Each has its own schedule and calendar—and since each borough has its own district attorney, notes Al Siegel of the Center for Court Innovation, a nonprofit organization that is a partner in the adolescent courts pilot project, each DA sets the agenda for his or her district.
"Sixteen is the age of criminal responsibility," Siegel tells City Limits. Without the adolescent parts, "there is no option for you" but adult criminal court. The pilot program approaches youth charged with crimes more like Family Court does. "It's a recognition that the court players should try for outcomes that are in the best interests of the community and the child, so they don't get re-involved in the justice system."
"Youth are not full-fledged adults," Siegel adds. "We want to prevent them from graduating to more serious offenses. If you're 16 years old and you jump a turnstile, you shouldn't have a criminal record."
Paradoxically, the creation and potential success of the Adolescent Diversion Parts could sabotage any change in the law that would raise the age of adult culpability from 16 to 18. If the courts provide a means for less punitive outcomes for youths charged and tried as adults, there's little incentive to change the law. But at least it might correct the practice, if not the principle, of trying kids as grown-ups.
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