Raise the Age, Turn the Page Reconsidering Juvenile and Criminal Court Jurisdiction in New York November 19, 2013 John Jay College of Criminal Justice What About Older Adolescents? Vincent Schiraldi, Commissioner, NYC Department of Probation

First, I would like to thank …. •

President Jeremy Travis and the staff of John Jay College who organized this event today

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The Pinkerton Foundation for their support of this event and the Pinkerton Fellowship Initiative at John Jay College

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My esteemed fellow speakers and panelists today

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And especially my colleague and friend, Jeff Butts, for inviting me to be here today and more importantly for being my thought partner on the issue of special treatment of young adults who are caught up in the criminal justice system

This afternoon, I’m giving what for me is a very new kind of presentation, in fact, this is the first time I’ll have spoken publicly about my ideas on this subject. For most of my career as an advocate and researcher before I began to work for government agencies, I’ve advocated on behalf of raising the age of criminal responsibility, against automatic or prosecutorial discretion waiver and for separate housing for juveniles who have committed crimes – essentially – I’ve given lots of speeches about having a juvenile justice system that was as distinct from the adult system as possible.

But today, as advertised, I’ll be focusing my remarks on the rest of the young people in the system. I’ll be focusing on the special needs of young adults ranging in New York from ages 16-24, but if we were over the Hudson in Jersey or in all but one state in the rest of the country,

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I’d be talking about young people ages 17 or 18 to 24. And what I’m saying will hold true if New York raises the age of jurisdiction to 18, which, like many of you, I hope it at least does.

The question I’ll be asking us all to consider, and which I’m increasingly considering myself is, is it reasonable to stop the discussion about raising the age of jurisdiction at 18? The more time I put into thinking about this construct, the more people I talk to, the more research I read, the more data I look at, the more I believe that, as impressive as the founders of the juvenile court were in 1899, their choice of 18 as the dividing line for adulthood was an arbitrary one not linked to any science or data, that has become sacrosanct and has defined the terms of our debate for far too long.

So while I absolutely support raising the age of jurisdiction to 18 in New York, given the emerging science about brain and adolescent development and the desperately negative outcomes that young adults have when processed through the adult system, it’s increasingly clear to me that the use of 16, 17 or 18 is an inadequate borderline and one that we as practitioners, advocates and public officials must abandon in favor of a more sensible approach to working with these young people.

In order to get at this subject, I’m going to focus my remarks along three lines: 1) Why – whether it’s because of emerging science, arrest rates, re-arrest rates, cost, racial disparities, or negative life outcomes – it’s important for us to create a separate system or set of responses to address the unique needs of young adults caught up the justice system; 2) What is already being done elsewhere to address the needs of this age group; and 3) Finally, what some of the elements of such a system would look like if we were to seriously address the needs of court-involved young adults in New York.

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Before I jump in, I should add that I am indebted to the work of Larry Steinberg, Tracy Velazquez, Jeff Butts and the United Kingdom’s Transition to Adulthood (T2A) Alliance (among others) who have all helped shape my thinking on this topic. I want to especially acknowledge the T2A Alliance, whose website has a plethora of analysis on this subject and Tracy whose piece in the Chronicle of Social Change was very influential in my thinking on this. My staff and I borrowed liberally from their writings in crafting this presentation.

Just like, in the 1800’s when there was only one court system and one set of correctional facilities and society viewed juveniles as merely miniature versions of adults, Americans today think of their courts as irrevocably divided into two categories: juvenile and adult. An illegal act is either that of an innocent child who cannot be held responsible, or of an adult who is fully responsible. This often results in young people who are not considered adults for a variety of other legal, civil or even business purposes being placed in developmentally inappropriate adult prisons or on adult probation. These age-dependent methods of negotiating the single boundary between juvenile and criminal jurisdiction now seem hopelessly outdated. Without today’s knowledge of adolescent development, early reformers understandably set criminal responsibility at 16, 17 or 18 on largely moral grounds, yet such boundaries are arbitrary and contrary to the latest science.

Today, increasingly sophisticated developmental and neurobiological research shows that the human brain is not fully mature until the mid-20s. The brain system that modulates pleasureseeking develops more quickly than the part of the brain that supports self-control. This means that the period of adolescence is now considered to be longer than previously thought and that such youth are: (1) less able to regulate their own behavior in emotionally charged contexts;

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(2) more sensitive to external influences like peer pressure; and (3) less able to make judgments requiring a future orientation. As such, when making designations based on age, the new science of adolescent development suggests that the appropriate terrain should include youth between the ages of 16 and 24—not simply 16 versus 18.

Of course the law often requires hard and fast “moments” in ways that human behavior doesn’t – you do or don’t enter into a contract with someone, you’re not “a little guilty” any more than you’re “a little pregnant”, and, for culpability purposes, you are or aren’t a full adult. But real human beings mature gradually and reach maturational milestones at different times. As such, the demarcation of 18 as the strict end of childhood and beginning of adulthood is an artificial one, as there is no one moment or age at which all people can be said to have reached full maturity.

The research literature is continually painting a more and more complete picture of this gradual development process: Risk taking behavior, for example, as evidenced by activities like drunk driving or using illegal drugs is greater among 18-25 year olds than among older adults.

In a study that created a composite measure of “psychosocial maturity” that included measures of impulsivity and sensation-seeking, 18-21 year olds showed significantly less maturity than 2225 year olds, with increasing maturity in those ages 26-30.

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The “Pathways to Desistance” study is the longest longitudinal study of serious adolescent offenders ever done. Researchers followed over 1,300 young people ages 14 – 18 who were found guilty of serious offenses for 7 years compiling a comprehensive picture of life changes in a wide array of areas. On the positive side, researchers found that changes in exposure to antisocial peers and antisocial peer pressure were related to drops in crime in 15-24 year olds. On the other hand, life events that cause significant strain, like homelessness, victimization and witnessing victimization, negatively impacted a youth’s ability to “age out” of crime, as did psychosocial factors like impulse control and control of aggression. Importantly, the authors note that “For intervention efforts, this is potentially a story of hope. There are many possible mechanisms for flattening the crime peak in adolescence or accelerating the decline in crime in adulthood.”

Some current and proposed laws and business practices already recognize this difference. Buying or consuming alcohol and just recently in New York City, cigarettes, is illegal for people under age 21. In some ways, I prefer the business analogies because they’re lest subject to political winds and tend to reflect hard-nosed, actuarial analyses of risk. So, most car companies won’t rent to people under age 25 and insurance rates for young adults are considerably higher than they are for older drivers. That’s not because Geico and Hertz don’t like young people’s money, it’s because their actuarial tables tell them that they’re a bad bet.

Like juveniles, many young adults are, due to their immaturity, susceptible to irresponsible behavior, allowing impulsivity to govern decisions about engaging in illegal activities. To the extent that sentences are designed to deter, this effect is blunted among young adults due to their impulsivity; to the extent that long sentences are intended to incapacitate, they are often

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unnecessarily long as maturity generally will bring a decreased risk of re-offending.

With this group of young people whose criminal careers are essentially cresting and then declining, who are neurologically less in control of their impulses and more susceptible to peer pressure and who, absent developmentally appropriate interventions, are more likely to reoffend, it’s important for us to ask ourselves how can we do all that is in our power to nudge them in the direction of desistance from future criminality for their sake and for ours?

Before I take a run at answering that, I’d like to turn to what the current landscape is for older adolescents involved with the criminal justice system. At age 16 as discussed throughout the rest of this conference, court-involved young people in New York become enmeshed in a disjointed system (or set of systems) with little regard to their developmental needs, high costs, disparate impacts and generally poor outcomes. This represents a huge missed opportunity to divert them from future arrests, future incarceration, and the miserable life outcomes for education, work and mental health that attach themselves to criminal justice involvement. The numbers are somewhat staggering: Young adults are overrepresented at many stages of the justice process. Although they make up about ten percent of the total population, this age group accounts for over 29 percent of arrests. Nationally, nearly 3 million 18-24 year olds were arrested in 2011. Over 200,000 18-24 year olds were serving prison sentences on December 31, 2011; another, 100,000 were incarcerated in local jails which is a deceptive number since about 6 times as many as that tend to churn through those jails on an annual basis. When they come out of prison, the lifetime likelihood of

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success for these young people takes a nose-dive, with ¾ of them getting rearrested within three years of release – the highest re-arrest rates of any age group.

These justice figures show a profound failure to ensure that youth successfully transition to adulthood, one that is experienced more keenly for youth of color. African American young adults, for example, are an astonishing fifteen times more likely to be imprisoned than young Whites, while young adults who were in foster care are ten times more likely to report having been arrested at age 18-19 than young people in the general population.

In his seminal work on what was once known as “disconnected youth” and is now called by many “opportunity youth” – that is young people between the ages of 16 to 24 who are neither working nor in school – Mike Wald found that, of all the “disconnected” male youth in America, nearly 4 in 10 are disconnected because they were currently incarcerated at the time Mike wrote his paper. Clearly, that disturbing ratio is far higher for African American and Latino males, who are incarcerated at much higher rates, than it is for white males.

Although New York City has reduced its use of incarceration considerably by comparison to the rest of the US for both adults and juveniles, we’re not immune to these kinds of outcomes for our young adults. •

Four out of 10 adult arrests and nearly half of adult violent felony arrests in NYC involve youth ages 16-25. By comparison, only 3% of all arrests in New York City involve people under age 16.

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Once arrested, nearly 4 in 10 16-24 year olds will be arrested again within a year and they’re nearly three times as likely to be re-arrested for a violent felony offense as those over age 30.

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Young black and Latino males in New York City are admitted to Rikers Island at 11 and 5 times the rate of young white males.

Unlike juveniles who are under age 16 and processed in Family Court, the “system” for young adults is virtually indistinguishable from the system for older adults.

Some would say that there are certain liberty-interest advantages to retaining young people in the adult court system. Adult courts tend not to “over parent” young adults like the Family Court, sometimes depriving youth of their liberty for trivial matters that no one in adult court would be incarcerated for, under the guise of “helping” them with their problems.

Conversely, as indicated above, persistent criminality into older adulthood is far too common for those who enter the justice system as young adults. In probation, I can legally treat 16-year-olds the same way I treat 40-year-olds and the short term separation during incarceration of 16, 17 and 18-year-olds in Rikers’ adolescent facility has to be viewed from a broader public policy lens as a Pyrrhic victory at best.

Although young adults often present with complex problems they just as often cycle through the system with little help in turning their lives around. The trick for all of us is to find a system that can nudge people in the direction of behavior change without depriving them of their liberty for trivial failures. We’ll come back to that at the end of the speech.

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The missed opportunity of our failure to act in this area is profound and is measured in human costs to victims and youth, as well as in real dollars. The Vera Institute of Justice recently estimated that the average cost to house someone in prison for a year is $31,286; with over 200,000 young adults in prison, their annual incarceration costs total approximately $6.25 billion. In New York City, the Independent Budget Office recently estimated the cost of incarceration at Riker’s Island at $168,000 annually; with around 3,000 16-24 year olds in the City’s jails, the costs of confining this group of young people runs into the hundreds of millions of dollars every year, just to the City alone.

Reducing the number of young adults who become involved in the justice system – and improving outcomes for those who do – would obviously have tremendous economic and social benefits. If the number of young adults arrested and in prison could be reduced by even ten percent, Tracy Velazquez estimates that the annual national cost savings from reduced incarceration and arrests would be over $1 billion dollars.

I believe that these developmental, criminological and economic arguments provide ample rationale to suggest the creation of a either a “third system” of justice for young adults or for a package of new practices and laws that result in substantially different and more developmentally appropriate treatment for young adults.

Now let’s turn to what is happening internationally, and to a lesser degree in the US, with regard to such “third systems” or specialized treatment for young adults.

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The nations making up the European Union have forged further ahead than the US when it comes to identifying young adults as a separate category of individuals with distinct needs that require a unique response from the justice system than either younger juveniles or older adults. Their responses to young adult crime tend to allow for sentencing based on maturation levels rather than simply chronological age; shorter, more intensely rehabilitative focused sentences of either confinement or community supervision for young adults; confidentiality protections and/or the ability to have criminal records of young adults sealed; and in some cases, the ability to “waive young adults down” from the adult system to the juvenile system. Furthermore, Council of Europe and European Union conventions and treaties are increasingly recognizing young adults as a distinct population deserving of special treatment, housing, confidentiality protections and rehabilitative programming.

The British-based Transition to Adulthood Alliance (T2A) is specifically focused on examining this issue. In their recent publication, “Young Adults and Criminal Justice: International Norms and Practices,” for example, T2A offers the following examples: •

In Germany all adults ages 18-21 have been transferred to the jurisdiction of the juvenile court since 1953, with the courts having the option of sentencing the individual according to adult or juvenile law. Interestingly, “it is more serious cases that are dealt within the juvenile jurisdiction and minor, particularly traffic offences, that are dealt with in the adult system,” exactly the opposite of how transfers to adult court are determined here in the U.S.

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In Sweden, young adults can be treated like juveniles until age 25 and mandatory minimum sentences are set aside for those under age 21

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In the Netherlands, Scandinavian countries and the countries of the former Yugoslavia, there are special provisions for young adults in their law that mitigate adult sentences

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In Finland, everyone under age 21 serves their time in a specific juvenile prison in which they can be released at one-third, instead of the normal one half, of their sentence and whose emphasis is on education and vocational training

Here in the United States, some states have passed laws recognizing 18-21 year olds as a special category, often called “youthful offenders” (although in some states that term refers to older juveniles). While not exhaustive, below are some efforts that have been in place, some for decades: •

Since 1978, Florida has a youthful offender law that allows the courts to use alternative processing for 18-21 year olds found guilty of all but offenses that carry a capital or life sentence.

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Colorado allowed “young adult offenders” – those whose offense occurred when they were 18-20 and who are still under 21 – to be included in the state’s Youthful Offender program, which is a separate facility that focuses on positive development, education and skill building; the statute allowing young adults to participate in the program was repealed in 2012, and efforts to reinstate it are currently underway.

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Michigan’s “Holmes Youthful Trainee Act” allows a judge to sentence a youth between 17 and 20 who has pleaded guilty to certain crimes without a conviction to avoid a criminal record. If the youth successfully completes the program, there is no criminal record. Bills currently under consideration in the Michigan legislature would extend the eligibility age to 25.

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And of course, here in New York, our Youthful Offender Act provides the courts with the discretion to grant certain confidentiality protections to youth ages 16, 17 and 18 years of age; New York State’s Shock Incarceration Program allowed prison officials to reduce prison terms to 6 months and was originally aimed at people sentenced to prison who

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were age 23 or younger; and the Mayor’s Young Men’s Initiative targets substantial resources at New York City’s court involved young Black and Latino men ages 16-24. So what could a “third” system look like here? Before going into detail, let me start by reminding us all of what happened when the first juvenile court was created in Chicago in 1899. The Progressive-era women of Chicago’s Hull House – Jane Addams, Julia Lathrop and Lucy Flower – literally and legally helped create adolescence in America – in fact the term “adolescence” wasn’t even coined until 1904. In addition to creating a separate court for juveniles that provided for more rehabilitation, confidentiality protections, and separate facilities from adults, they successfully advocated for child labor laws, compulsory education and public parks.

In like fashion, I believe today’s advocates need to legally and practically create a period of “young adulthood”, but this time, setting age parameters guided by science and data rather than habit or our gut feelings. I’d like to submit for your consideration some of the following elements that I’d love to hear your thoughts about during the Q and A period: •

Recognizing that young adulthood is a time characterized by impulsivity, experimentation, and heightened susceptibility to peer pressure, we should design our young adult system to allow for either confidentiality or the ability to seal records after a sufficient period of crime-free living so as to shield young adults from a lifetime of collateral consequences. Young adults could gain these rights in varying degrees through extending and expanding Youthful Offender Act protections, adding provisions that allow for record sealing, even making the attainment of Certificates of Relief from Disabilities presumptive for young adults. None of us want to be remembered by the

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meanest or stupidest things we did during college; neither should we permanently hobble our young adults with their youthful misbehavior. •

Impressionable young adults should be kept out of congregate facilities whenever possible through a network of developmentally appropriate community based programs. Periods of community supervision like probation or parole, when necessary, should be short, intense and focused on education, workforce development, youth development and cognitive behavioral training.

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When such youth do require confinement, they should be held in separate facilities from older adults and those facilities should likewise focus on education, workforce and youth development, and cognitive behavioral training. It is very difficult, if not impossible, in a New York City context, to imagine such specialized facilities flourishing on Riker’s Island.

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As states like Ohio, California and Illinois have done for juveniles, we should create funding streams that encourage young adults to be kept locally in non-incarcerative settings, funneling the savings from reduced incarceration into programs that hold the promise of helping young people change their life trajectories to more productive lives.

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Substantially improve case processing for young adults. If the City were able to modestly reduce case processing times for 16-24 year-olds currently held at Rikers, we could save tens, maybe even hundreds, of millions of dollars that could be reinvested into non-mandatory programs to help alter the negative life trajectories that far too many court-involved young people will otherwise travel.

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Give young adults access, as was proposed by Judge Lippman for 16 & 17-year-olds, to adjustment opportunities that help to keep them entirely out of the formal court processing system. My department currently adjusts – or diverts – more than a third of all arrested juveniles arrested in NYC and nine out of ten of those diverted successfully complete their adjustment period. Replicating such outcomes for young adults would not

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only help them avoid the stigma and negative impacts of formal court processing but it would provide much needed respite to an overburdened court system to allow it to focus on more serious cases. In the Supreme Court’s Roper v. Simmons decision, the majority wrote that The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. They noted that “their irresponsible conduct is not as morally reprehensible as that of an adult” and that their conduct is further mitigated by their relative “lack of control over their immediate surroundings.” In this landmark death penalty decision, the court looked to international and US norms and evolving standards of decency and new research in developmental psychology and neurology to inform its decision.

Each of the court’s findings applies, to a lesser degree, to young adults entangled in our ineffective and developmentally inappropriate adult justice system. So while we rightly fight for the age of juvenile court jurisdiction to extend to 18, we should keep our eyes on a larger prize – developing a developmentally appropriate system for young adults who make up a much large portion of those incarcerated in America and whose outcomes, racial disparities and financial costs will continue to be abysmal unless they are addressed in a serious and effective manner.

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