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'Raise the Age' law will soften how some teen offenders are prosecuted

The 16-year-old boy had armed himself with what he called "a replica gun" and robbed a woman in the parking lot of the Fashion Outlets mall. His guilty plea to that felony as an adult in a Lockport courtroom in December meant he faced as many as seven years in state prison, locked up with older, hardened criminals.

The boy told Niagara County Judge Matthew J. Murphy III he couldn't read the indictment. So his lawyer read it to him.

"He has some learning disabilities and he struggles to fit in," said the boy's attorney, TheArthur A. Duncan II. "I don't think he appreciated the severity of what he was doing because it wasn't a real gun."

The 16- and 17-year-old robbers Duncan represents in the future might not face that kind of prison sentence. Last year, New York State lawmakers raised the age of criminal responsibility from 16 to 18.

In effect, New York has created a separate criminal justice system for 16- and 17-year-olds. It takes effect Oct. 1 for 16-year-olds and a year later for 17-year-olds.

Supporters say the new law will have a positive effect on teen offenders. Sixteen- and 17-year-olds treated as adults in courts and locked up in prison, where they face a higher risk of being assaulted, are more likely to be re-arrested after their release, studies show.

But officials expect the new system to be costly.



Before the new law, New York and North Carolina had been the only states to automatically prosecute 16-year-olds as adults.

The effect is expected to be greatest for teens charged with misdemeanors or low-level felonies. Violent crimes and sex offenses will be handled in a new type of court, but the penalties for such crimes have not been reduced.

Most cases involving adolescents are expected to go to Family Court, where sentences are far lighter than in adult court, but where caseloads will rise radically. Also, the new law requires counseling and other services for the young offenders.

Attorney Charles F. Pitarresi, who represented a 16-year-old who also pleaded guilty in the Fashion Outlets robbery case, said the new law throws a lifeline to clients like his.

"This may not follow this person for the rest of his life," Pitarresi said. "I want to help young people because they're at a crossroads. Social scientists tell us the minds of young people, they don't fully comprehend what they're doing."

How the new system works

For years, Gov. Andrew M. Cuomo and Assembly Democrats promoted "Raise the Age." In 2017 they finally pushed it through as part of the state budget settlement with Senate Republicans.

But GOP lawmakers objected to the lighter penalties for teenage felons that would result from sending them to Family Court, where the most severe initial sentence is 18 months in a state detention facility, although there are cases in which the sentence can be extended to an offender's 21st birthday.

The result is a new system which assumes all 16- and 17-year-old suspects will be sent to Family Court unless the alleged crime is violent or sexual. Violent felonies and sex crimes will automatically go to the new Youth Court. Despite the name, it's considered part of the adult court system and can impose adult-level sentences.

For other felonies committed by 16- or 17-year-olds, the district attorney has 30 days to decide if the crime is serious enough to request that it be assigned to Youth Court. Otherwise, it goes to Family Court.

"We're able to keep the violent offenders here in adult court," Erie County District Attorney John J. Flynn Jr. said. "There are a number of kids who are in gangs who are 16 and 17 years old. I get it that they're kids and I get it that they haven't developed mentally, physically, etc., but some of these kids who are in gangs, if they're involved in a drive-by shooting, they shoot someone or kill someone, they need to be punished accordingly. That option for me is available."

It's uncommon for adolescents to go to state prison.

In 2016, felony charges were lodged against 7,160 16- and 17-year-olds statewide. Only 570, or 8 percent, eventually ended up in prison. Local jail sentences were imposed on 1,155 of the adolescent offenders, or 16 percent. The others served no time, or their cases ended with acquittals or dismissals.

It won't be cheap

County officials say the new law means they will have to hire dozens of new employees and bear the cost of the new programs up front while waiting for the state to reimburse the counties.

In Erie County alone, the cost of the new adolescent justice system is estimated to top $8 million, with more than 25 new employees to be hired and the county facing the need to house more teens in secure youth detention facilities instead of in jail.

"In Family Court, it's all about trying to get them some services that will hopefully help them turn things around," said Brian J. McLaughlin, Erie County probation commissioner.

"If these kids are getting this at 16 and 17 instead of just going into the adult system, the hope is you can make a difference while they're young enough and turn things around for them. I do believe it's a good idea, but there's a lot of expense that comes with it," McLaughlin said.

In Erie County, there were 1,356 arrests of 16- and 17-year-olds in 2015. The figure dropped to 1,260 in 2016, but that's still a lot of new work.

But advocates for youth say this shouldn't be a dollars-and-cents issue.

"The system is looking at it through one lens," said the Rev. James Giles, president of VOICE-Buffalo. "The lens I look at it through is, how does it affect the quality of life for inner-city youth?"

Giles, a longtime advocate for raising the age of criminal responsibility, said many of those young males live in communities saddled with poverty, pervasive crime and single-parent households.

"People of color are the ones that are mostly impacted," Giles said. "They find themselves at an early age getting involved in the criminal justice system, from early detention to the 'big house.' If an individual is of school age, they never should be in adult prison. Never."

Erie County Attorney Michael A. Siragusa said he already has three lawyers working full-time on Family Court prosecutions. He said by the time the new law is fully operational, he'll probably have to hire two more lawyers and a secretary, costing at least $250,000 a year in salary and benefits.

Siragusa, however, is on board despite the costs.

"The philosophy is to try rehabilitating and counseling and all the services that juveniles need that are going in the wrong direction, not just throwing them in a system that is arguably not built for that, giving up on them right away, especially in the case of nonviolent felonies," Siragusa said.

Where to place the kids?

State officials acknowledge they lack enough places to house adolescent offenders, who as of Oct. 1 will no longer be sent to regular jails at any time after their arrests.

In September, the Office of Children and Family Services announced an $89 million plan to enlarge four existing facilities – in Monroe, Livingston, Essex and Cayuga counties – to hold adolescent offenders, with about 250 new workers to be hired to staff those facilities.

Erie County's youth detention facility on East Ferry Street in Buffalo now houses juveniles awaiting Family Court action.

The East Ferry site will become a regional pretrial holding center for juveniles and adolescents, said Paul S. Kubala, Erie County's deputy commissioner of youth services.

Two of the five pods at the East Ferry site will be reserved for 16- and 17-year-olds, with an estimated renovation cost of $1.4 million. Kubala said he expects as many as 50 to be in custody on a typical day. Other counties sending kids there will be charged to do so.

The annual cost to hold those offenders will be about $1 million in food, uniforms and hygiene products, plus another $1 million for 15 to 17 new detention workers and $45,000 to enlarge the parking lot because of the increased staffing levels, Kubala said.

When adolescents are sentenced to a state detention facility, their home county must pay the state $550 a day for each offender, Kubala said. Erie County is estimating it will have 15 to 20 teens in state facilities, costing $3 million to $4 million a year.

The state has promised that all county costs related to "Raise the Age" will be reimbursed – but the counties must pay those costs upfront. And for a county to receive reimbursement, it must stay under the state-mandated property tax cap.

In the legal trenches

In the courtroom, raising the age of criminal responsibility could have a positive affect on teenagers in trouble, lawyers and clergy members say.

If they're convicted in Family Court, they can be sent to a detention facility for as long as 18 months. That can be renewed, a year at a time, until they turn 21.

An adolescent convicted of a violent or sexual felony in Youth Court also would stay in a youth detention center or in a special youth prison operated by the Department of Corrections and Community Supervision. If the sentence hasn't been completed by age 21, he would be transferred to prison.

Also, the youthful offender law remains in force and can be used in Youth Court.

For example, two of Duncan's recent clients, the Fashion Outlets mall robber and a Buffalo opiate dealer, are eligible to be considered youthful offenders.

Such a ruling officially wipes out the conviction, but a youthful felon still can be imprisoned for as long as four years.

Duncan said the learning-disabled 16-year-old robber needs the help that the new system might offer him.

"He needs some direction, some guidance. He's not a bad kid," Duncan said Feb. 20, after the judge placed the boy on interim probation for six months.

Giles, the Buffalo clergyman and youth advocate, said lives can be enhanced through the new law, since a felony record can permanently interfere with employment and educational opportunities.

"A 16-year-old should not be making a life-altering decision that will affect them for the rest of their life," Giles said. "A boy with a felony at 16 is doomed for life."

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