ALBANY — When the landmark legislation to divert nonviolent 16- and 17-year-old defendants from adult criminal courts was passed in New York last month, few argued with its goal to give the youths another chance at life with the help of social services and a sealed criminal record.
But the concept of the “raise-the-age” legislation, fueled by emotional testimony of parents who lost their sons to brutal prison life or suicide, is facing a harder reality as the measure is hammered into rules and regulations to make it work.
Counties question whether taxpayers can afford the new layer of criminal justice — which could include more courtrooms, supervisory officials and public defenders. Law enforcement agencies fear the loss of what many consider crucial leverage to squeeze information from youths in order to convict kingpins.
“We obviously had our concerns, but now it’s the law of the land,” said Rockland County District Attorney Thomas P. Zugibe, president of the District Attorneys Association of the State of New York. “We’re still up in the air. Will they properly staff the department of probation? If it’s just an assembly line process, then we will see a lot of injustices.”
The measure replaces what Gov. Andrew M. Cuomo called “the most cruel, the most unjust result you can imagine” by raising the age of adult criminal responsibility to 18. Before this year, New York and North Carolina were the only states that didn’t set it at 18. While prosecutors already had the discretion to keep 16- and 17-year-olds out of adult courts, under the new law, those charged with misdemeanors will be handled in family court with an array of social services and without the long prison sentences common for adults.
Nonviolent youths would go to a “youth part” of the traditional criminal court, but will appear before judges trained in family law and services will be available to help them avoid prison. The cases then would go to family court, although a prosecutor could seek to divert the most serious cases to adult court. The 16- and 17-year-olds accused of violent felonies will be sent to adult criminal courts.
“We’re implementing this piece of legislation that will save tax dollars and also improve public safety,” Alphonso David, Cuomo’s counsel, said in an interview. “We are making policy based on the data, rather than fear. I understand there may be concern because this is a new piece of legislation, but we have studied this for years.”
Zugibe and other prosecutors said an unintended consequence of the new system will be to severely limit the leverage district attorneys have in trying to extract information from 16- and 17-year-olds to give up information that could land bigger fish.
“You lose all your leverage,” Zugibe said in an interview. He said “closure rates” show New York City closed more cases by using the method than other big cities in 48 states that already operate under raise-the-age statutes.
“That is a major concern,” Zugibe said.
“Absolutely,” agreed Assemb. Dean Murray (R-East Patchogue) who was among Republicans who argued the bill — negotiated behind closed doors by Cuomo and the Assembly and Senate leaders — was flawed.
“This was a very important tool and they turned a deaf ear to it,” Murray said. “There are lots of questions. Now they are realizing the consequences.”
David called Murray’s argument “specious at best.”
“What we are talking about is parental notification,” he said. “Those who are challenging this policy are saying that when a 16- or 17-year-old is arrested they shouldn’t be require to notify a parent until, ‘We decide.’ ”
Counties contend the cost of the new system to taxpayers remains a big unknown.
“I remain skeptical that they knew the true impact of both the financial and the procedural impact on the local level,” said Stephen J. Acquario, executive director of the New York State Association of Counties. “We did not have an opportunity to comment on the law being negotiated . . . there are a lot of open questions, lots of unknowns built into this.”
He said counties are trying to determine the cost of additional courtrooms; more facilities to hold youth offenders away from adults; and the added cost of more public defenders, probation officers and youth bureaus.
The law promises that the state will cover the local share of the program as long as the county continues to operate within the state-imposed cap of raising local spending no more than 2 percent, except for proven hardship. The state also provides $110 million for construction and $19 million is available for building or expanding detention facilities, according to Cuomo’s budget spokesman, Morris Peters.
“Whether or not the ‘full reimbursement’ by the state is there remains to be seen,” Acquario said. “The ultimate goal is a good one . . . but how we get there is where it becomes just creating another law and expecting another unit of government to pay for it. And that’s not fair.”
State Division of Criminal Justice Services statistics also show the heated rhetoric at rallies decrying mass incarceration of children doesn’t match the reality. Prosecutors and judges were already keeping nearly three-quarters of 16- and 17-year-old defendants out of adult courts.
Of the 17,412 misdemeanor arrests of 16- and 17-year-olds last year, 4,828 were convicted and sentenced and 6 were acquitted. Another 12,580 had their charges dismissed or the district attorney declined to prosecute, according to state Division of Criminal Justice Services records.
Of the 4,826 convicted and sentenced, 11 went to state prison, 501 went to jails, 636 were released after time served during processing, and the rest mainly served sentences that involved probation or fines.
“We have the most robust youthful offender statute in the country,” Zugibe said. “It’s not like the old days. You see the drop in recidivism when you properly deal with an offender and whatever is necessary to give them the structure that’s needed.”
Assemb. Felix Ortiz (D-Brooklyn) said he’s confident compromises will be struck over the next month in rules and regulations because the benefit of the law is so great.
“This can really help kids and keep them from going in another direction,” said Ortiz who championed youth mediation programs in his Brooklyn district. “We shouldn’t be criminalizing our children. They need to learn from their mistakes. I have seen it work . . . it can save kids’ lives.”