It's a Friday morning in July and some two dozen teenagers and their parents are waiting to see Manhattan Supreme Court Judge Eduardo Padro, who presides over cases in which 13- to18-year olds are charged with robbery, murder or other serious crimes.
The court officers bring in "Megan" from an area behind the 7th floor Youth Part courtroom. Megan, who was 17 when arrested in February and whose name has been changed here (at the court's request), stands at a bench reserved for defendants and their lawyers. Incarcerated at Rikers Island since her arrest, she appears in court wearing a beige Department of Corrections jumpsuit, with her hands cuffed behind her back.
Megan allegedly used a lighter in the shape of a gun to commit a robbery, according to her mother, who spoke to a reporter after the hearing. The teen also has had a slew of behavioral problems, dating to when she was a toddler, not to mention prior arrests in family court.
Because she was 17 when arrested, Megan is considered an "adult." If convicted of the top charge she could face more than a decade in prison. She also would be left with a felony record that could diminish her future prospects, making her ineligible for certain jobs, public housing benefits and financial aid for higher education.
Megan is among the 45,000 teens between 16 and 18 arrested each year in New York, which is one of just two states to regularly treat criminal defendants aged 16 as adults. Thousands of those teens, like Megan, are held in Rikers Island until they can make bail. If sentenced, they face potentially lengthy sentences, in the same upstate prisons as older adults.
Now, a growing coalition of court officials, lawyers and advocates say that situation should be changed. They say that adolescents shouldn't be subject to adult sanctions, especially given that criminal records carry lifelong consequences. Being convicted of a crime can affect people's immigration status, educational and work opportunities, and even housing.
But so far, reforms have stalled in the state legislature due to opposition by some Republicans, as well as questions about the financial impact of the proposals.
Evolving ideas about young brains
Reformers say that New York's system hasn't kept pace with current research about adolescent development, which supports the idea that teens' brains are still developing and that they lack the impulse control of adults.
Even the Supreme Court said in 2005 that it's unconstitutional to execute people for crimes committed when they were younger than 18. Among other reasons, Chief Justice Anthony Kennedy cited juveniles' lack of maturity and susceptibility to peer pressure. "The character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed," he said in the opinion.
The American Medical Association and other health groups backed the defendants in that case, arguing in a friend-of-the-court brief that people's brains continue to develop until their early 20s. specifically, they argued that the prefrontal corex—which is responsible for impulse control and moral reasoning—is the last part of the brain to develop.
Those who advocate for change also argue that teens shouldn't be saddled with criminal records for adolescent mistakes, and that it's counterproductive to sentence teenage defendants to facilities that house older, often more dangerous adults.
"I see every day the harm of the current state of the law, in which, literally, children are left with the indelible scar of a criminal record that will impact their ability to get employment, to pursue educational opportunities, to potentially remain in this country, to obtain housing," says Steven Banks, chief attorney of the Legal Aid Society, which is supporting reform.
"Judges are essentially operating with two hands tied behind their backs because they cannot order the kinds of rehabilitative services that 16- and 17-year-olds need."
Chief Judge Jonathan Lippman jump-started the growing movement to revise New York's juvenile justice system in 2012, when he proposed creating a new "youth court," to handle cases of 16- and 17-year-olds charged with misdemeanors and non-violent felonies. The proposal called for teens who were found guilty to be sentenced in accordance with family-court standards.
Unlike the situation in criminal court, family court judges are tasked with considering youngsters' best interests when crafting dispositions—which can range from adjournments in contemplation of dismissal to placement away from home through their 18th birthdays (or 21st birthdays for the most serious crimes). Family court sentences can also order counseling for teens or placement in facilities other than jails, like residential treatment centers. Importantly, family court sentences don't typically result in permanent court records.
"This proposal to raise the age is absurdly long overdue," says Randy Hertz, a vice dean at NYU Law. "It's crazy that New York is one of the two most punitive and regressive states in the country," says Hertz, who runs a clinic that represents juveniles in family court. (The only other state that sets 16 as the age of criminal responsibility in all cases is North Carolina.)
The status quo, he says, is "contrary to what any rational system seeks to do—not only in terms of rehabilitating kids and protecting them, but also in terms of protecting the public."
But, he adds, proposals such as Lippman's, which would only apply to young people convicted of misdemeanors or non-violent felonies, don't go far enough —especially because many people in that group already are able to avoid adult criminal records under the current hodgepodge of laws.
Artifact of the seventies
When New York opened its family courts in 1962, judges in those courts presided over all cases in which youngsters between the ages of 7 and 16 were accused of committing crimes. In the late 1970s, the state legislature changed the law to bring defendants as young as 13 into the adult court system if charged with murder, while defendants who were 14 or 15 would enter the adult system if charged with serious crimes, like armed robbery.
That system means that youngsters between the ages of 16 and 18 always go through the adult system, while those between 13 and 15 sometimes do so.
Around 5,000 of that group will spend time in adult jails or prisons, and some 2,000 will end up with permanent records.
Teens are able to avoid criminal records when judges grant youthful offender status, which seals the proceedings. Youthful offender treatment is mandatory when teens are convicted of misdemeanors, but prohibited for some serious felonies. In other cases, like Megan's, judges have the discretion to order it.
Prosecutors often oppose youthful offender status in serious cases on the grounds that public safety requires giving certain people felony records. That way, if they commit new crimes in the future, they will face longer sentences.
Megan's mother, who is in court that morning, says she would like to see the justice system recognize that Megan is an adolescent. "She's been giving me problems since she was two years old," her mother tells City Limits. But, she adds, she doesn't think Megan should be treated like a hardened criminal: "I don't think it's right that they're treating her like an adult, because she's not acting like an adult."
Padro tells Megan that morning that if she pleads guilty, he'll sentence her to at least three years—which is less than the four-year minimum requested by the prosecutor. If she doesn't like the deal he's offering, she can go to trial. Either way, unless she's acquitted, she's facing prison time as well as a permanent criminal record.
Megan's mother hopes that Padro will decide in favor of youthful offender treatment for her daughter. But Padro says in court that Megan isn't a candidate.
She rejects the deal that day and is sent back to Rikers, to await trial.
Padro doesn't state any reasons in court for his decision to deny Megan youthful offender status, but he later tells City Limits the types of factors he looks at.
"What's the history of criminality? What's the history of violence? Are they involved with schools, teachers? What was their role in this particular case?"
Someone with a long history of acting out violently is a worse candidate for youthful offender treatment than someone with no priors. On the other hand, someone who was the lookout in a robbery is probably a better candidate than someone who pulls the trigger.
"Each case is different," Padro says, adding that he must balance the teens' situations with the need to protect public safety. "As much as I am sympathetic to young people, I swore to uphold the law," he says.
Ultimately, however, he believes that a small number of teens are so dangerous, that they should have criminal records. "I do think that there are certain young people, unfortunately, that society has to be protected from," he says. Padro, who grew up—and still lives—in East Harlem, says he knows all too well that some people are dangerous at a young age. "I don't believe that everybody is hardwired to be good."
Marked for life
In some situations, though, youngsters who end up with permanent records don't have any additional arrests as adults, but nonetheless find themselves at a disadvantage compared to people who lack records.
Consider "Crystal," who was arrested for assault at age 16 after getting into a fight with another 16-year-old girl in her Brooklyn neighborhood. A knife was involved, which elevated the charge to a felony—though Crystal says the other girl pulled out the weapon. Crystal was taken to Rikers Island and held overnight, but released after making $3,000 bail.
She eventually resolved the criminal charges by pleading guilty to a felony and agreeing to participate in a six-month program that monitored her behavior, followed by 4.5 years of probation.
While the deal kept her out of jail, it also left her with a criminal record that has dogged her for the last 11 years. "At one point I couldn't get a job," she says, adding that she was rejected from a retail sales position at Godiva chocolates, as well as a job working with mentally disabled adults. "I couldn't get Section 8. I couldn't do anything."
Crystal has since mitigated some of those consequences by successfully applying to the court for a certificate that frees her from so-called "civil disabilities" as a result of her conviction. She now works for an alternative to incarceration program that monitors young people who have been arrested.
Growing push, but no payoff
Padro's predecessor in Manhattan, former judge Michael Corriero, who now heads the nonprofit New York Center for Juvenile Justice, has made it a personal mission to reform the state's current system.
"We don't have a legal framework that appropriately responds to the developmental differences that these children present," says Corriero, who laid out much of the case for reform in his 2006 book "Judging Children as Children." He argued in the book that all children under age 18 who are arrested should initially be treated as juveniles, but that judges should have the flexibility to transfer some of the most dangerous youngsters to adult court.
Corriero says that judges in adult court lack the ability to order the kinds of mental health interventions that many teenage defendants need. "We are criminalizing in the adult court a lot of kids who have mental health issues," he says. "In the family court, if a judge discovers that a child has significant mental health issues, the judge can link that child with appropriate psychiatric care—and the group providing that care has a funding stream."
Indeed, family court judges are able to order a broad range of services, which are funded by the judiciary. But as a practical matter, the family court system wouldn't have the resources to handle tens of thousands more cases a year—let alone provide the types of counseling services that many teens and their families could use.
Edwina Richardson-Mendelson, the administrative judge for New York City Family Court, says that she agrees that adolescents should not be subject to "lifelong consequences of an adult criminal court process."
But, she says, the city's family courts can't simply absorb tens of thousands of new cases, without a significant boost in resources. "Family court could not in any way address 45,000 new cases in a year," she says.
Some other states have recently stopped treating teens as adult criminals. For instance, in 2010, Connecticut stopped prosecuting 16-year-olds as adults; two years later, the state stopped treating 17-year-old defendants as adults. But North Carolina lawmakers recently rejected proposals to raise that state's age of criminal responsibility from 16 to 18.
Earlier this year, the state legislature considered a proposal drafted by the New York Sentencing Commission that would have revised the current system by sentencing 16- and 17-year-olds in accordance with family court standards, but only if they were convicted of a misdemeanor or non-violent felony.
That proposal had some wrinkles that could have led to unintended consequences. For instance, the proposal would have allowed judges to keep 16- and 17-year-olds in facilities away from home until their 21st birthday—even for misdemeanors. Currently, teens who are convicted of misdemeanors can only be incarcerated for up to 1 year.
Also, there are questions about whether reforming the system by sending cases to family court is a good use of taxpayer money. In general, family court is more expensive than adult court, because family court judges can order agencies to provide services, like counseling, regardless of families' ability to pay.
Corriero says that the bill's potential problems could have been worked out in committees, calling the proposal "a significant step in the right direction toward our overall goal—having children viewed as they are."
To date, even that limited measure hasn't gained traction in Albany, where it lacks support of some Senate Republicans. Still, Corriero and other advocates intend to keep pushing for reform. "We want to change the legal lens by which we view children in New York," he says. "Are we going to get there overnight? Of course not."