Raise the Bar on Raise the Age: Ending Child Prosecution in Adult Courts

New York’s recent Raise the Age legislation, passed in 2017 and phased in over the following two years, has symbolized a commitment to reforming the youth criminal justice system in New York State. Prior to Raise the Age, sixteen- and seventeen-year old defendants were prosecuted in adult courts, where they were subject to longer sentences and permanent criminal conviction records that made it difficult to reenter society. The new legislation changes the age at which youth under eighteen can be tried as adults in criminal court. While Raise the Age is an important step forward, it did not change the process for youth charged with violent felonies, still requiring their automatic prosecution as adults. 

Scientists have shown there are significant differences in the adolescent brain that affect impulse control, decrease the ability to consider long term consequences, and increase the likelihood of engaging in dangerous or risky behavior. [1] The Supreme Court has affirmed these scientific findings in multiple cases, most notably Roper v. Simons (2005) and Miller v. Alabama (2012). Thus the New York justice system should continue to build on the scaffolding of Raise the Age, fully recognizing the differences between juveniles and adults. Rather than charge youth under eighteen in adult criminal court—which emphasizes the responsibility of the individual child—youth should be tried in family court, under prosecutorial and sentencing laws that prioritize rehabilitation, crime prevention, and community investment. 

Only in the recent past has New York begun to prosecute children as adults. In 1978, the case of Willie Bosket, a Black teenager from Harlem who shot and killed two men on the subway, injuring a third, prompted swift political action. Because he was only fifteen, Bosket’s case went through family court, where the judge sentenced him to the maximum of five years. Governor Hugh Carey, in the midst of reelection, faced attacks from opponents who used Bosket’s five-year sentence to characterize Carey as “soft on crime.” On June 29, 1978, The New York Times ran the headline, “Boy, 15, Who Killed 2 and Tried to Kill a Third is Given 5 Years.” [2] The mix of public outrage and election year politics was potent. One day later, the headline read, “Carey, In Shift, Backs Trial in Adult Court for Some Juveniles.” [3] The Governor called a special session in the legislature, swiftly passing the “Willie Bosket Law” and winning reelection later that year. [4]

Although many have written off the “Willie Bosket Law” as the product of an outlier case and Carey’s thirst for votes, the New York Legislature had already begun to move in the direction of harsher punishment two years earlier. In 1976, the legislature passed the Juvenile Justice Reform Act (JJRA), increasing minimum sentences for violent felonies committed by youth over fourteen, and changing the maximum possible sentence for Class A felonies (including first and second degree murder) from eighteen months to five years. [5] Legislators also included new language in the measure to signify that the law was for the “protection of the community,” not just for “the needs and best interests of the respondent.” [6] In congressional debates, lawmakers signaled the need for a stronger response for “get[tting] tough with the young hoodlums and punks.” [7] While these epithets did not make their way into the published legislation, “protecting the community” acted as the official rhetoric used to convey racially motivated law-and-order politics.

Two years later, the 1978 Willie Bosket law, officially known as the Juvenile Offenders Act, expanded the scope of punishment so that children as young as thirteen could be prosecuted as adults. Thirteen- to fifteen-year-olds were no longer able to transfer their cases to family court where they could receive a consideration of mitigating factors such as family stability, past trauma or mental health. The newly created category of “juvenile offender” placed the blame of the crime on the child who committed it. Justice was served by punishing the individual rather than by taking a wider approach to the origins of crime, such as poverty or the school-to-prison pipeline. Statistics collected in a 1979 report revealed that 97 percent of juvenile offender arrests made that year were of Black or Hispanic youth. [8] Over the following decades, these trends continued, confirming that “protecting the community” was code for locking up Black and brown children. 

At the federal level, the Supreme Court has since decided in multiple cases that youth should be treated differently than adults in criminal cases, relying on the Eighth Amendment’s prohibition on cruel and unusual punishment. In Roper v. Simmons (2005), the court ruled that capital punishment was unconstitutional for youth under eighteen. [9] In Graham v. Florida (2010), the court outlawed sentencing youth under eighteen to life without parole, but only for those not convicted of homicide. [10] In Miller v. Alabama (2012), the court extended Graham to end mandatory life sentences for anyone under eighteen, no matter the severity of the crime. While the Supreme Court did not take away the ability to impose a life sentence in Miller, the majority emphasized that sentencing courts should use discretion in applying punishment, evaluating mitigating factors in each case before them. [11] Disagreeing with the majority’s interpretation of the Eighth Amendment, Chief Justice John Roberts filed a dissenting opinion, arguing that the Court’s job should be to apply the law, not to consider issues of “morality and social policy.” [12] He reasoned that the Court could not rely on the Eighth Amendment to outlaw a punishment that the Court itself did not characterize as “unusual.” Nonetheless, what the Chief Justice believes is outside the scope of the Supreme Court is certainly not outside the purview of the New York legislature, which has the duty to consider questions of morality, psychology, and social science in the act of policy-making.

The Willie Bosket law rests on the idea that youth as young as thirteen are fully accountable for their actions, even though psychologists have shown that the human brain is not fully developed until the age of twenty-five. [13] Ignoring this fact to treat children as adults for the purpose of criminal prosecution fits into the “crime master narrative,” a concept defined by Craig Haney, professor at the University of California, Santa Cruz. Haney, whose research lies at the intersection of law, psychology, and social policy, describes the crime master narrative as “the widely accepted notion that crime is the simple product of equally free and autonomous ‘bad’ choices made by persons who are acting unencumbered by their past experience and present circumstances.” [14] Given persistent racial and economic inequality, the crime master narrative leads to criminal justice laws disproportionately impacting Black and Hispanic youth. The crime master narrative also reveals inconsistent logic in the JJRA and Juvenile Offenders Act. Even though thirteen-, fourteen-, and fifteen-year-olds can be prosecuted in adult court, they cannot sign a contract under their name or register to vote, two privileges that signify an individual’s civic responsibility when they turn eighteen. Judging youth as adults for the purpose of criminal punishment, but not for civic participation, points to an inconsistent conception of age and maturity. 

New York’s Raise the Age law (2017) recognized the need to protect youth caught in the justice system. Under the law, misdemeanors for sixteen- and seventeen-year-olds are now prosecuted through family court. Felony cases for thirteen- to seventeen-year- olds begin in the Youth Part, a branch of the Criminal Court, and can be moved to family court depending on the charge. Non-violent felonies are automatically transferred to family court, unless the prosecutor files a motion to argue otherwise. Violent felonies can only be transferred to family court if the charges do not include sexual assault or the possession of a deadly weapon that has caused physical injury. Certain violent felonies, including murder charges, cannot be transferred to family court. This means that a child between the ages of thirteen to fifteen can face life in prison. 

Aspects of Raise the Age have been effective, contributing positively to the number of cases moved to family court. Data from the first eighteen months after the legislation was implemented showed that 82 percent of cases had been transferred from Youth Part to family court. The data, however, also revealed significant racial disparities in the cases that remained in New York City’s Criminal Court. Nearly all of these cases had defendants who were Black or Hispanic. [15] The task force further reported that by 2020, all sixteen- and seventeen-year-olds had been transferred from adult prisons to specialized youth detention centers. The authors claim that “these changes demonstrate the state’s capacity to implement large-scale justice system reform.” [16] Yet they should not be so quick to assume a congratulatory tone. Raise the Age did not include provisions for improving the quality of youth detention centers, which have been stripped of resources and staff members by the COVID-19 pandemic. 

The Crossroads juvenile detention center in Brooklyn, for example, has faced severe understaffing, with only half of the Youth Development Specialist positions actively filled, and others, including guards, working sixteen- to eighteen-hour days. Outside organizations that provide services such as mentorship and job training programs were significantly scaled back due to the pandemic. As Lisa Salvatore, head of juvenile defense at Brooklyn Defender Services recently reported in an interview with The City, “what the young people we represent tell us is that they crave programs and education, but are not getting enough of what they need to thrive.” [17] The unacceptable conditions at juvenile detention centers make clear that reforming the system cannot only focus on one aspect of the timeline, but must take a comprehensive approach to crime prevention, sentencing and rehabilitation. Only then can New York claim to have protected their youth from cruel and unusual punishment. 

Focusing on crime prevention and youth rehabilitation requires strengthening the social state. By re-coding the language once used by the JJRA to include the protection of all communities, law enforcement can find new ways to counter crime. Manhattan District Attorney, Cy Vance, has started initiatives like Saturday Night Lights, a program for eleven- to eighteen-year-olds that involves youth in sports programs, and connects participants to academic tutoring and career mentorship. [18] While more resources should be channeled into growing Saturday Night Lights and similar initiatives, further revisions to New York’s juvenile justice code are necessary. Building on the progress made by Raise the Age, new legislation should require all youth cases to start in family court, overseen by judges who are specially trained in brain development and rehabilitation. Laws should frame the idea of punishment as a way to help youth develop a sense of responsibility based on their commitment to a wider community. Rather than receive long sentences in detention centers isolated from the rest of society, rehabilitation measures should emphasize the child’s place in New York’s community, offering education, mental health resources and professional coaching. As scientific studies have shown, and the Supreme Court has reaffirmed, the U.S. legal system must treat children in all of their complexity, not as fully-formed adults, but as growing human beings who deserve a future.

Edited by Cole Tom

Sources:

[1] AACAP, “Teen Brain: Behavior, Problem Solving, and Decision Making,” American Academy of Child and Adolescent Psychiatry, September 2016. https://www.aacap.org/AACAP/Families_and_Youth/Facts_for_Families/FFF-Guide/The-Teen-Brain-Behavior-Problem-Solving-and-Decision-Making-095.aspx.  

[2] Steven Weisman, “Criime--a Code for Winning Votes,” New York Times, May 14, 1978; Charles Kaiser, "Boy, 15, Who Killed 2 and Tried to Kill a Third is Given 5 Years," New York Times (1923-), Jun 29, 1978. http://ezproxy.cul.columbia.edu/login?url=https://www.proquest.com/historical-newspapers/boy-15-who-killed-2-tried-kill-third-is-given-5/docview/123655489/se-2?accountid=10226.

[3] Richard Meislin, Special to The New York Times, "Carey, In Shift, Backs Trial in Adult Court for Some Juveniles." New York Times (1923-), Jun 30, 1978. http://ezproxy.cul.columbia.edu/login?url=https://www.proquest.com/historical-newspapers/carey-shift-backs-trial-adult-court-some/docview/123646064/se-2?accountid=10226.

[4] Carla Barrett, "Creating the “Juvenile Offender,” In Courting Kids: Inside an Experimental Youth Court (NYU Press 2012).

[5] New York Penal Law § 125.25-27 

[6] 1976 New York Laws, Chapter 878, § 711. 

[7] E. F. McGarrell, "The Ideological Bases and Functions of Contemporary Juvenile Law Reform: The New York State Experience," Contemporary Crises 13, no. 2 (Jun 1, 1989), 170. http://ezproxy.cul.columbia.edu/login?url=https://www.proquest.com/scholarly-journals/ideological-bases-functions-contemporary-juvenile/docview/1308102192/se-2?accountid=10226. 

[8] Barrett, “Creating the ‘Juvenile Offender,’” 49.

[9] Roper v. Simmons, 543 U.S. 551 (2005).

[10] Graham v. Florida, 560 U.S. 48, 130 S. Ct. (2010)

[11] Miller v. Alabama, 567 U.S. 460 (2012)

[12] Miller v. Alabama, (Roberts, J., dissenting)