Why Is New York Still Prosecuting 16-Year-Olds As Adults?

by MARK HAY
The Gothamist
November 3, 2016

On August 4, 2010, four days after his 17th birthday, Ben Van Zandt rode his bike from his house in the Albany suburb of Selkirk to a wealthy Delmar development just under a mile away. He made his way to the home of Robert Lilley, whose family he’d learned from Facebook was away on vacation in France, smashed in a window, poured some gasoline, and set a substantial fire.

Family and friends were shocked. This wasn’t the Ben Van Zandt they knew—a Boy Scout and good student who’d never really gotten into trouble. What they didn’t realize was that over the past few weeks or months—it’s not entirely clear—Van Zandt had begun to hear voices in his head. They told him to light fires. At first, he set off controlled blazes in his backyard, but soon the voices were instructing Van Zandt to do something big.

“He was pretty delusional,” his mother, Alicia Barraza, recalls. “He was convinced that setting a large fire was what was going to make his severe unhappiness go away. That was his solution—he wasn’t thinking straight… He wasn’t a criminal. He was a kid who had a mental health issue.”

These views were not shared by local authorities, who days later tracked Van Zandt to his home via purchases made with credit cards he’d taken from Lilley’s home before torching it. They came to Van Zandt’s house with a warrant and arrested him. But even though Van Zandt was only 17, they wouldn’t let his father come down to the station. Later, they read Van Zandt his rights—which Barraza claims he did not understand—and convinced him to put his feelings about the incident on paper. They said it would make him feel better.

Van Zandt wrote out his confession. There was no adult advocate present. And because this was New York, which is one of only two states—the other is North Carolina—where 16- and 17-year-olds accused of committing a crime are automatically treated as adults, the police weren’t required to let him contact his parents.

“He was naïve,” says Barraza. “He had no experience with law enforcement or being in trouble.”

In February 2011, Van Zandt took a plea deal rather than face the risk of a trial or the chance of being shunted into a psychiatric facility for life. He was sentenced to 10 years in prison and incarcerated at the adult Woodbourne Correctional Facility.

At first, he managed to find some satisfaction in earning his GED and enrolling in classes through the Bard Prison Initiative, but in early 2013 he was moved from a cell block to dormitory housing, where he found himself more exposed to older and sometimes violent inmates. In the dormitory housing, he was allegedly sexually abused by a 45-year-old prisoner, Donald J. Robinson.

Guards later caught Van Zandt engaged in a sexual act with Robinson. Both were disciplined; Van Zandt was ultimately transferred to another facility, where a prison gang reportedly coerced him into smuggling drugs. He was transferred again, to the Fishkill Correctional Facility, where his mental illness seemed to worsen. He then witnessed the beating of another mentally ill inmate. After being accused of fighting a fellow inmate in the prison yard—a charge his family believes was trumped up to punish him for complaining about conditions at Fishkill—Van Zandt was placed in solitary in late October 2014.

On October 30, 2014, he was found hanging from a makeshift noose in his cell, dead. He was 21.

Barraza says the brutality of incarceration in an adult prison broke her son. She believes that if he’d been treated as a juvenile, he would likely be alive today. With a parental advocate at his interrogation, he might not have signed a confession, and might have gotten a better plea. And in a juvenile facility, he likely would have had access to a host of programs tailored towards people his age. Barraza thinks that would have helped him stabilize.

She has filed several lawsuits against the state, including a wrongful death suit against the New York State Department of Corrections and Community Supervision and the Office of Mental Health alleging that her son received inadequate and inappropriate treatment while in custody. Her first case is likely to go to trial in 2017.

But Barraza also understands that her son’s case is not unique. Adult prisons rarely offer services or resources targeted at 16- and 17-year-olds, and they tend to emphasize punishment over rehabilitation. Inmates under 18 in adult prisons are far more likely than adults or their peers in juvenile facilities to be sexually abused, seriously injured or killed. They’re also far more likely to commit suicide.

This reality has moved Barraza to join the movement to bring New York in line with the bulk of the country by raising the age of criminal responsibility from 16 to 18.

“It really doesn’t take much for a kid to get into trouble,” she says. “But if you’re charged as an adult, that’s it. Everything changes. And you carry that criminal record with you for the rest of your life.”

* * *

Advocates for justice reform have been pushing for New York State to raise the age of criminal majority for decades. But only in the past few years have their efforts gained traction, thanks to a growing body of research on the development of the teenage brain, increased awareness of the unique risks faced by youth in the adult justice system, and broader acknowledgement of the long-term costs of incarcerating 16- and 17-year-old offenders.

Then, in January 2014, during his final first-term State of the State address, Governor Andrew Cuomo declared his support for a “Raise the Age” initiative and announced the formation of the Commission on Youth, Public Safety and Justice, which would study possible approaches to realize that initiative’s key goals.

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Gov. Andrew Cuomo delivers the 2016 State of the State address. (Governor’s Office / Flickr)

For those in the movement, this was a tremendous moment. After years of frustration, they finally had the bully pulpit of the governor behind them.

In January 2015, Cuomo’s commission released a 164-page report recommending raising the age of criminal majority to 18, as well as several dozen related policy changes. Soon after, liberal legislators pushed for a bill based on the commission’s recommendations. Their efforts were backed by dozens of civil rights and justice reform groups, all of whom were well armed with mountains of data illustrating the short- and long-term harm the criminal justice system can do to young people, as well as the potent stories of youth like Van Zandt and Kalief Browder.

That legislation did not move forward. Despite renewed support in his 2016 State of the State and another pass at advancing a bill, Raise the Age stalled out again during this past legislative session. In fact, according to Krista Larson, the director of the Vera Institute’s Center for Youth Justice and a longtime Raise the Age activist, this year’s legislative push gained even less traction than last year’s.

In recent years, Raise the Age movements have found success all across the country, including in traditionally “tough-on-crime” states like Mississippi and South Carolina. This past spring, Louisiana, the so-called “prison capital of the world,” raised their age of criminal majority from 17 to 18.

Yet in New York, a generally progressive state, the age of criminal majority remains unchanged, which has left observers like Larson scratching their heads.

Raise the Age advocates here are working with the same playbook as their counterparts across the country, so that’s not the obstacle. Rather, the state’s trouble with passing Raise the Age has little to with the merits of treating 16- and 17-year-olds differently than adult criminals and everything to do with the difficulty of negotiating the surprisingly complex path by which to make that seemingly simple shift.

* * *

The age of legal majority in New York was first floated in 1824, the year the state created the first juvenile reformatory in the United States. The idea that the teenage years constituted a separate phase of life from adulthood was quite new at the time and 16 was more or less an arbitrary choice. (For centuries beforehand, English common law had held that children, as a vague demographic, ought to be treated differently than adults in some cases, but the details could get squidgy.)

In 1909, the age was more formally enshrined, when the state legislature amended the penal code so that offenders younger than 16 would be sent to reformatories or charitable institutions, rather than adult jails or prisons.

Over the ensuing decades, states across the country settled upon an older age of legal majority, with most drifting to the civic age of majority of 18. By 1940, 16 was the age of criminal majority in only three states: North Carolina, Connecticut, and New York.

In the early ’60s, a number of state legislators and other officials revisited the age issue, but the state ultimately decided to hold off on making reforms pending further study of the implications of a policy change.

Then came the crime wave of the late 1970s to the early 1990s and the backlash, which turned the national conversation toward lowering the age of criminal majority. In 1978, the New York state legislature passed a law that made it the norm to prosecute as adults teenagers—some as young as 13—accused of major crimes like rape or murder. Crime rates fell precipitously in the ’90s, but harsh punishments for offenders remained on the books. The age of criminal majority was left untouched.

Last year, there were over 27,000 arrests of 16- and 17-year-olds in New York State, the vast majority for misdemeanor offenses. Over 2,000 of these teenagers were sentenced to time in adult facilities. Including individuals who are behind bars pre-trial or pre-sentencing because they could not make bail, there are approximately 800 16- and 17-year olds in adult facilities statewide on a given day. In New York City, that figure is around 200, though this summer Mayor de Blasio announced a plan to ultimately move these young people off the island to a separate facility in the Bronx.

As is the case across almost every facet of the justice system, people of color are disproportionately represented in these figures. The Cuomo commission found that black and Latino youth account for over 80 percent of 16- and 17-year-olds confined in adult facilities.

Wood engraving of the House of Refuge, 1854. The facility, located on Randall's Island, was the the first juvenile reformatory in the United States. (Wikimedia Commons)
Wood engraving of the House of Refuge, 1854. The facility, located on Randall’s Island, was the the first juvenile reformatory in the United States. (Wikimedia Commons)

Over the past couple of decades, a broad scientific consensus has emerged that the human brain is highly malleable up until the age of 25. Before that point, parts of our brain that process environmental stimuli are still growing and other parts roughly responsible for emotional intelligence, impulse control and planning have not yet fully developed. This brain science has played a role in three recent Supreme Court decisions—in 2005, 2010 and 2012— that banned capital punishment and life sentences for youth for any crimes whatsoever.

Recent studies have also shown how dangerous adult criminal facilities can be for teens. Due to their youth, they are 36 times more likely to commit suicide, five times as likely to be sexually assaulted, twice as likely to be beaten by staff and 50 percent more likely to be attacked with a weapon than their peers in juvenile facilities. (Reports of brutal treatment of teens on Riker’s Island played a role in prompting the Cuomo-led push for Raise the Age legislation.)

Unless a teen tried as an adult is issued “youthful offender” status, which mostly seals a criminal record from the public, past crimes can continue to haunt an individual, causing serious issues in the quest to obtain housing, education, or employment, to name a few, often for the rest of his or her life. There’s even mounting evidence that just touching the adult justice system, without conviction or incarceration, can have a lasting negative impact on kids and teens.

New York’s adult criminal facilities offer little in the way of educational or rehabilitative opportunities and Cuomo’s commission found that youth in adult facilities were 26 percent more likely to re-offend than their peers in juvenile facilities; other studies have put that figure even higher. There’s also research suggesting that when youth in this cohort re-offend, their crimes are more violent than those of peers coming out of the juvenile justice system.

Meanwhile, states that have raised their ages in recent years, like Connecticut and Illinois, haven’t seen increases in crime. They’ve also found that while in the short term it costs more to move kids into juvenile facilities (which spend more per-person in areas like social services), in the long run Raise the Age measures are money savers. An Urban Institute study from 2006 put it most succinctly: for every dollar spent on moving juveniles into juvenile facilities, society saves three in reduced crime and incarceration.

* * *

Yet despite all this research, Republican senators in the state legislature have continued to oppose bills pushing for status changes.

“Whatever changes we’re going to affect,” Republican senator Patrick Gallivan told reporters earlier this year, “we have to make sure they’re good for everybody, not just the individual who commits a crime.”

Some opponents have voiced concerns about the logistics of making the change, asking how New York’s family court system would handle an influx of 40,000 or so cases. But according to Monica Drinane, a former family court judge who spoke to me on behalf of the Office of Court Administration, most judges are supportive of raising the age of criminal majority.

“The concept that youngsters between the ages of 16 and 18 should be treated as what they are, which is adolescent and not as adults, I think is pretty much uniformly support by all of the judges I have worked with either in New York City or statewide,” says Drinane.

“It’s perplexing to us and to many who have worked on this issue why we have gotten this opposition,” says Alphonso David, counsel to the governor and his longtime civil rights advisor.

Cuomo has blamed fears of appearing “soft on crime,” particularly in an election year, for Republican intransigence, a theory echoed by Raise the Age advocates and media commentators.

There’s also the cultural bit. “There are still many parts of New York where the idea of teaching kids a lesson through prison is still held by many lawmakers and elected officials,” says Alexandra Cox, a SUNY New Paltz criminologist and Raise the Age advocate. “That is a moral position that has been hard to rebut through the use of research.”

Paige Pierce, the CEO of Families Together in New York State and one of the leaders of the local Raise the Age campaign, adds that many of these (mostly upstate) senators may just think of this as an issue that affects people off in the cities, not the bulk of their constituency.

“They don’t even realize that if their kid were arrested, they wouldn’t get a call,” she said, before quickly correcting herself: “They probably would, because they live in a community where they’re known, they have access to legal representation, and there’s, especially in smaller communities, more of a sense of common sense when it comes to calling the parents because they should.”

Columbia Law professor and juvenile justice expert Jeffrey Fagan says it’s “hard to get New York to change,” especially when it comes to the highly symbolic politics of crime. “You have to have something like a Sandy Hook to get a gun law passed,” he said. Crime rates in New York have been stable for years, but people are fearful that they’re rising. Fagan said that fear is what’s “feeding the political side” of the Raise the Age debate.

Pierce’s take-away from the past few years has mainly been that she and her fellow advocates still have a lot of educating to do. She’s optimistic that outside of the pressures of an election year, the facts will win out over inertia and entrenched conservatism on crime issues.

* * *

There’s more to the story than just conservative hostility to the abstract notion of appearing soft on crime, though. Even blood-red states have raised their age close to elections—see again this year’s successful legislation down in Louisiana.

“I would hope that New York wasn’t so different,” says Justine Luongo, the head of criminal practice at the Legal Aid Society in New York, “that we are stuck.”

In fact, opposing senators and “law-and-order” groups have been fairly receptive to the concept of treating 16- and 17-year-olds differently than adults. Many just say they’re against the details of the main legislation put forward on how to achieve that—although Alphonso David says he doesn’t know if you can really separate the two. It’s not just them; groups that might support Raise the Age have questioned the legislation, too.

From the outside, it seems like raising the age would require no more than a simple piece of legislation that would require all jurisdictions to move 16- and 17-year-olds into the juvenile justice system and treat them like their juvenile peers.

In practice, though, David points out, raising the age involves weedy debates about where to put 16- and 17-year-olds (whether into standard juvenile facilities or new separate facilities with distinct services), which courts to run them through (family court or some new special part within or separate from the adult criminal system with its own rules), when and whether to seal or unseal their records, and which major crimes (if any) should still automatically fall under the jurisdiction of the adult criminal justice system.

There has been some variation among the iterations of Raise the Age legislation put forth over the past two years, but broadly, they propose: banning the placement of people under 18 in adult prisons; trying them in family courts except in the case of the most serious felonies like murder (but creating a new part in the criminal system to try them under slightly modified standards and away from the adult population); allowing for records to be conditionally sealed save for serious felonies while expanding the option to apply youthful offender status up to age 20; and raising the lower end of criminal responsibility from seven to 12—10 in the case of murder.

According to Luongo, advocates had hoped the exhaustive work of Cuomo’s commission to find a middle ground approach, which was reflected in this legislation, would satisfy the numerous stakeholders in the debate.

But New York is an enormous, politically fractured state and the compromise legislation didn’t pass muster with a number of key constituencies. Itamar Yeger, counsel to Rockland County DA Thomas Zugibe, the current president of the District Attorney Association of New York State, claims that DAANYS officially opposed the legislation out of fear that it would increase the number of records that are sealed, making it more difficult to identify repeat offenders.

“We don’t want the worst of the worst to suddenly pop up on our radar screens when they’re 18 years old,” says Yeger. He stresses that DAs already provide services for school-aged children, which he claims are most effectively targeted if their records are visible.

Recently, the association has been shopping around its own proposal, under which 16- and 17-year-olds would be processed in a part of the adult criminal justice system that would offer them services similar to those in the juvenile system while at the same time allowing more district attorney intervention.

That’s troubling for those who want youth in that age group to be entirely within the juvenile justice system, particularly because prosecutors can hold great sway over legislators sensitive to charges that they’re “soft” on crime.

On the other side of the aisle, some progressives typically aligned with Raise the Age proposals snubbed the legislation as well, mostly for making too many concessions to law-and-order hardliners. Professor Cox has arguedthat the legislation inspired by Cuomo’s commission would actually leave many youth with fewer protections. She cites the proposed extension rather than elimination of juvenile offender status and provisions for unsealing records, blocks on what cases can enter family courts and the expansion of the list of violent crimes for which they can be applied as particular points of concern. Cuomo’s legislation, she says, “became a vehicle for introducing enhanced penalties where they didn’t previously exist and new and expanded opportunities to charge kids with violent crimes.”

Cox has sought to shepherd supporters towards alternative legislation in the State Assembly that would place all cases involving individuals younger than 18 in the juvenile justice system.

Other sources of potential support faded away, explains Jeffrey Butts of the John Jay College of Criminal Justice, due to fundamental misgivings with the quality of even the juvenile justice system and with the arbitrary choice of 18 as a magical birthday. Butts and others have advocated for a total overhaul of the system, so that it gradually escalates responsibility and adjusts services up to age 25. He said he told individuals within the Cuomo Administration of his concerns in 2014. “My advice was don’t do this,” he says. “Don’t waste the political capital on the Raise the Age debate because it’s a partial victory at the very best.”

“Why would he want to be the 49th governor to raise the age to 18,” he continues, “when he could be the first governor to revolutionize the whole conversation?”

Any hopes that different interest groups could effectively negotiate within the context of existing legislative proposals have fallen flat because the bills are dense and both sides of the debate believe their opponents operate on knee-jerk misunderstandings of their positions. Cuomo’s office officially remains dedicated to facilitating negotiations, but Raise the Age isn’t well known among ordinary New Yorkers so there’s little push to put it on top of the legislative heap.

“I want to believe because I am a glass-half-full New Yorker that we’re better than this,” says Legal Aid’s Luongo. “Except I’ve been in the rooms and I’ve heard, ‘This is it: this is the line in the sand.’ And I worry that history’s just going to repeat itself.”

* * *

One model for New York’s Raise the Age movement was legislation passed a decade ago in Connecticut, which essentially mandated that criminal majority there would jump from 16 to 18 by a certain date and created a commission to hash out the details, avoiding the legislative gridlock Albany’s seen in recent years. But advocates like Pierce argue that proposing comprehensive legislation was ultimately the best route in New York, as they do not believe a simple bill would or could have worked. Pierce says there’s a real chance for legislation to get through in 2017, when electoral pressure will have receded, though she acknowledges there’s still work to be done educating opponents she thinks are ill-informed, as well as potential supporters unaware of the issues involved.

Yet it’s unclear how long the momentum built around the Cuomo-initiated push can last. Last December, the governor pardoned a number of people convicted at ages 16 and 17. He also used an executive order to separate juveniles in adult state prisons (but not county jails) into separate facilities, a stopgap measure that took effect this summer.

Alphonso David said Raise the Age remains a priority for Cuomo, but he stopped short of confirming that it would be a stated priority for 2017 in the State of the State address.

Meanwhile, North Carolina, New York’s only companion in treating 16-year-olds as adults, will be issuing its own commission report at the end of this year and will likely advance legislation based upon it in the 2017 session. Local advocates say they’re optimistic about getting a Raise the Age bill passed.

That would leave New York all alone in ignominy, with thousands of young people like Ben Van Zandt each year facing the grave consequences of entering the adult justice system.

Luongo wonders if this might actually help the Raise the Age movement here.

“There’s one thing we do know about New Yorkers is that we’re highly competitive people, no

matter what side of the line we’re on,” Luongo says. “So we don’t want to be the last on this.”
____________________

Mark Hay is a Brooklyn-based freelance writer most frequently featured at VICE, where he covers crime and a number of other topics.