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Direct Dial: (212) 577-3646
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E-mail: SWJames@legal-aid.org
Richard J. Davis
Chairperson of the Board
Blaine (Fin) V. Fogg
President
Seymour W. James, Jr.
AttorneyinChief

Raising the Age of Criminal Responsibility

Memorandum of Support
The Legal Aid Society supports Governor Cuomos bill which codifies the recommendations of
the New York State Commission on Raising the Age of Criminal Jurisdiction allowing some
juveniles, ages 16 and 17, currently prosecuted as adults, to be prosecuted pursuant to New York
States Family Court Act. This change is long overdue. In fact, New York State would be the
49th state to address this issue by shifting laws and mindsets to better serve teens entangled in the
adult system. In the last 15 years, social science, neuroscience, and psychiatric and psychological
research have determined that teenagers should be evaluated for criminal culpability much
differently than adults. Numerous scientific studies demonstrate that the brain continues to
develop during the adolescent years and is not fully formed until the early twenties, with some
studies placing the age of complete development at twenty-five.
The Legal Aid Society is in the very unique position of being experts in both the criminal and
juvenile justice systems. Very few organizations in New York State and across the country have
this type of expertise. Our Criminal Practice handles over 230,000 cases annually in the criminal
justice system in New York City. Our Juvenile Rights Practice represents almost all children
under 16 charged with juvenile delinquency and prosecuted in New York Citys Family Courts.
As experts in both forums, we are well-positioned to speak to the provisions of the bill and the
effects they will have on the adolescents who will be affected as well as the systems themselves.
The idea of treating children as children is not new nor innovative. In fact, in a series of
decisions since 2005, the United States Supreme Court has recognized the scientific research of
adolescent brain development and ruled that age may be considered a mitigating factor and
should be considered in assessing teenagers behavior and culpability. Developmental
psychologists have found that adolescents, as a class, warrant characterization as less mature
than adults, not because of cognitive immaturity, but because of deficiencies in maturity of
judgment caused by incomplete brain development. Additionally, The United States Department
of Justices Office of Juvenile Justice Delinquency Prevention (OJJDP) issued a report in 2008
concluding that the "practice of transferring juveniles for trial and sentencing in adult criminal
court has produced the unintended effect of increasing recidivism, particularly in violent
offenders, and thereby of promoting life-course criminality."
A system that purports to rehabilitate children must believe families and communities are the
keys to turning around problematic adolescent behavior, allow for age-appropriate

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accountability, and make available an exit ramp offering a continuum of social services for both
the family and child upfront. A system founded on youth development theory recognizes that a
mistake in adolescence should not burden a person for her entire life, and that adolescent
behavior, all adolescent behavior, should have the ability to be forgiven and forgotten once
appropriate accountability is accomplished. It should also be founded on the belief that if
placement is necessary, it mirrors closely a social service setting that provides every possible
opportunity for families and children to work together to address the issues facing them in a kind
and caring environment focused on the familys strengths and shoring up their weaknesses, and
accepts that restorative justice offers the actors and victims the best possible chance of healing
and growing. Lastly, a system that purports to care about children knows that you cannot safely
house adolescents with adults, even if segregated, and accepts as true that meaningful
educational opportunities are the key to keeping teens of all ages connected to positive and
productive futures.
While New York States current juvenile justice reform remains a work in progress, it seems
clear the benefits afforded by the juvenile system as outlined above offer better alternatives,
options and hope for adolescents of all ages, no matter what crimes they are charged with
committing. Close To Home, our current juvenile justice reform process, is built on sound
principals, and they make senseto experts in the juvenile justice field, experts in neuroscience
and psychology, experts in adolescence, and of course, experts in criminal justice. To divide
adolescence legally between 15 and 16 goes against what we know so well. The needs and
psychology of 16 and 17 year olds are the same as younger teenagers and they need to be able to
access the same social systems, such as foster care, appropriate education, and mental health
services. It makes perfect sense to allow them the same options children in the juvenile justice
system are afforded. The laws that a judge can apply under the adult criminal law do not provide
access to and understanding of holistic family and childrens services. In contrast, the laws that
apply under the Family Court Act do provide access to necessary services.
Most importantly, collateral consequences that apply to adolescents prosecuted as adults derail
teens lives: over the last few decades, New York has increased the collateral consequences of
criminal convictions. Today, convictions imposed on teenagers bar them from public housing,
deprive them of certain benefits, prevent them from participating in some rehabilitative programs
or receiving financial aid, and expose them to civil judgments based on inability to pay
mandatory surcharges and fines attached to cases in the adult court system. The deleterious
effects of these collateral consequences can permanently impair their future, even if they never
re-offend.
The Governors bill, while not complete in its recognition of 16 and 17 year olds as adolescents,
goes a long way in accomplishing long overdue reform. And while this is a significant first step,
we are disappointed that under this bill Youthful Offender adjudications will be utilized as a
predicate crime. Treating these adjudications as predicates is inconsistent with the core of what
the bill is attempting to accomplish. Judges do not grant YO status lightly. Most youth receiving
youthful offender status have successfully complied with numerous conditions imposed by the
court requiring such things as counseling, school attendance and good grades, both before and
after the adjudication. To permit reconsideration of this adjudication by allowing its use as a
predicate crime erases the benefits of the YO status, as well as the spirit of the YO law, and will

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result in increased incarceration and punitive actions both retroactively and proactively. In
appropriate cases, judges have the discretion to increase sentences without the mandatory
requirement imposed by status as a previous felon. While there are other areas of the bill that
would better serve children, this bill is a significant first step in moving towards a more humane
and effective justice system for children under 18.
Some opponents of the bill criticize the Family Court adjustment process which will apply to 16
and 17 year olds prosecuted in Family Court. The complaint that it is fraught with land mines for
kids and families regarding statements made to probation officers and the legal ramifications of
various aspects of the adjustment process is, very simply, untrue. This process allows juveniles
charged with low level crimes an off ramp, a way to receive services and assistance for them and
their families without the stigma of a court case. Nothing stated in the adjustment process to the
probation officer can be used in the Family Court process should the case come to court. This
process engages the child, family and often the victim, in a plan to hold the child accountable,
but also ensure the family receives any assistance they might need to avoid the court process. A
little over 40% of cases are adjusted, and 90% of those cases are successfully adjusted, meaning
the child complied with the requirements and the case was not filed. Appropriate accountability
and rehabilitation are key to the adjustment processand to public safety. Children of all ages
can benefit from this process. Moreover, all children in Family Court charged with delinquency
are assigned counsel at arraignment, and are entitled to have counsel present at adjustment if they
have already been assigned counsel in a prior matter.
There is also some concern regarding the capacity of Family Court to deal with the number of
cases they will now be required to handle. Lawrence Marks, First Deputy Chief Administrative
Judge of the Office of Court Administration, was a member of the Commission and is certainly
well-versed in the needs and issues related to Family Court. Clearly, his understanding of the
courts ability to hear these cases should be strongly credited. Moreover, the remedy for this
possible problem would be to have 16 and 17 year olds appear in parts housed in Criminal Court
and allow Criminal Court judges to apply the Family Court Act. Since Criminal Court already
handles these cases, utilizing those courtrooms and judges to apply family law instead of
criminal law would be a remedy. Moreover, under the Family Court Act, many of the children
charged with misdemeanors will have the option to participate in the robust adjustment process
outlined above, they would not even go through Family Court. Additionally, in the more than 18
months until implementation, a qualified group of stakeholders can plan for the impact of the
surge of cases, and any other obstacles that may be identified. The delay built into the bill would
leave plenty of time to develop a more than adequate plan.
Although not perfect, this bill truly provides the framework to begin to bring New York in line
with the 48 other states that understand the need to raise the age of criminal jurisdiction. Those
states understand that children and communities are better served when we use proven strategies
in the prosecution, treatment and confinement of children of all ages. And while it seems no
conversation about criminal or juvenile justice is complete without numerous references to
public safety, the truth is the juvenile delinquency process is not soft on crime, nor is it hard, if
the definition of hard means punitive. It is a system built on the notion that accountability is a
priority but must be age appropriate if it is to be successful, and that children can be and should
be rehabilitated utilizing appropriate programming and support. It is clear, given the success of

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the current juvenile justice reform in reducing recidivism that public safety needs are being well
met in the juvenile justice system, even for those children less than 16 charged with violent
crimes, and that we have finally learned, along with many other states, that we can ensure public
safety by actually treating children as children. We should do the same for 16 and 17 year old
children.
If you have any questions, please contact:

Seymour W. James, Jr.

Attorney-in-Chief
(212) 577-3646
SWJames@legal-aid.org
Tina Luongo
Attorney-in-Charge, Criminal Practice
(212) 577-3583
JMLuongo@legal-aid.org
Tamara Steckler
Attorney-in-Charge, Juvenile Rights Practice
(212) 577-3502
TASteckler@legal-aid.org