Raising the Age of Criminal Responsibility

By the end of the current legislative session there could be just one state left that prosecutes all youth as adults when they turn 16 years of age—and New York won’t be it. Though raising the age of criminal responsibility is far from a done deal, the momentum in Albany appears to be in its favor. Earlier this year, a commission convened by the governor called for the age to be raised to 18, and outlined several policy recommendations for reaching that goal. In the expense and capital budgets, Gov. Cuomo subsequently earmarked a total of $135 million for implementing that change. Though the details of the proposed legislation are still not clear, one thing is certain: nonprofits would play an oversized role in what many advocates believe is a long overdue “right-sizing” of the criminal justice system.

“In some counties they have a good set of services in place for young people, so [raising the age] would mean an expansion of those, but there are also counties where there’s almost nothing in place,” said Soffiyah Elijah, executive director of the Correctional Association of New York and co-chair of the Governor’s Commission on Youth, Public Safety and Justice.

Raise the age advocates call for increasing diversion and alternatives to incarceration, areas in which nonprofits perform critical functions. The enhanced nonprofit role could come to bear at various stages throughout a reformed juvenile process. For starters, juveniles go through what’s known as an “adjustment” process following their arrest, during which they will meet with a probation officer who, in certain instances, may recommend that the case be diverted from the court in favor of some kind of service intervention.

Even if a case is not successfully diverted and enters into the formal court process, there are still alternatives-to-placement and alternatives-to-detention. There could be an increased need for those services if more young people are handled in the juvenile system. Processing more cases in the family court system, which has a greater focus on providing interventions that help juveniles, could also lead to increased need for services. In New York City, for instance, the Close to Home Initiative allows young people adjudicated in the family courts to be placed in local institutions run by nonprofits instead of being sent upstate.

“It’s not a little prison,” said Elizabeth Powers, a juvenile justice policy associate at the Children’s Defense Fund. “It’s more of a group home, where you’re addressing the needs of kids and, by keeping them in the city, we can have that element which is necessary to getting them back on track: involving their families.”

Aftercare is another area that could see a need for increased services as well. Under the current system, 16- and 17-year-olds who receive adult sentences return from prison on adult parole, which is different from the aftercare provided to kids exiting the juvenile system, who could receive in-home family therapy, as well as assistance with educational placement.

By raising the age of criminal responsibility, Powers believes, “you pretty much shift everything to a different age-appropriate model.

Juvenile advocates have long held that the brain of a 17-year-old is not fully developed— particularly the region responsible for regulating impulses. Proponents of raising the age of criminal responsibility also argue that the future prospects for youth are greatly diminished once they have entered the adult system, regardless of whether or not they serve prison time. Youth have higher recidivism rates, they claim, and go on to commit more serious crimes.

“Kids and young adults are very resilient, and if you put them in an environment where they have to learn to survive with adults, that’s what they do,” said Dan Rezende, executive director of the Connecticut Junior Republic, a non-profit that provides services to youth who have passed through the criminal justice system. “But the consequence is that the kids will keep acting in that manner after they leave.” 

Connecticut was the most recent state to raise the age, and could offer some insight into what New York could expect should the governor’s proposed legislation pass. According to Rezende, certain previously held myths were debunked after the new law was implemented.

“One of the challenges is a fear factor that this [older] population is much different and hard to deal with than younger kids, but we found that the opposite is usually the case,” Rezende said. “The older kids are often more mature and developmentally advanced.”

Advocates and providers interviewed for this article highlighted certain services that older youth often require more than their younger counterparts, such as vocational training and assistance with independent living and substance abuse. More often, there is overlap in the services needed, whether counseling and trauma-informed communities or in-home therapy and encouragement to remain in school.

“I see little discernible difference between 15- and 17-year-olds, because their spectrum of experience is so vast,” Elijah said. “I’ve come across mature 13-year-olds and immature 17-year-olds.”

Some critics of raising the age have pointed to the complexity of implementation, and the potential cost of hiring probation officers and investing in new services and infrastructure. Even the governor’s commission concluded that the cost of juvenile detention and placement is higher than adult jail and prison. There has also been concern at the county level that raising the age will amount to another state-mandated expense. Evidence from Connecticut, however, suggests that the size of the justice system actually shrank as a result of the reforms. And advocates, though in many cases reluctant to frame what they view as a moral imperative in cost-benefit terms, believe even an economic analysis favors their side.

“Think of the justice system as an iceberg,” said Hans Menos, director of youth services at Center for Community Alternative. “There are a lot of hidden costs to locking someone up at 17 with the adults; that person is not paying taxes, less likely to graduate high school, more likely to recidivate, and earns less, and becomes reliant on public assistance.”