CRIMINAL JUSTICE REFORM IS NOT FOR THE SHORT-WINDED: HOW THE JUDICIARY'S PROACTIVE PURSUIT OF JUSTICE HELPED ACHIEVE "RAISE THE AGE" REFORM IN NEW YORK.

Author:Lippman, Jonathan
 
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Introduction 242 I. Background of Juvenile Criminal Responsibility in New York 245 A. Family Court Act of 1962 and the Broken Promise 245 B. New York Lags Behind the Evolving Science and Law 248 II. New Yorkers Paid a Heavy Price for the Tentative Decision 250 A. Juveniles of Color Bear the Brunt of the Consequences 251 B. Adult Jails and Prisons Were Breeding Grounds for Abuse and Future Criminality 252 C. A Poor Investment for Taxpayers 256 III. The Judiciary's Push to Raise the Age in New York 258 A. The Judiciary as the Laboratory for Reform: Bringing the Issue to the Spotlight 258 B. Laying the Foundation to Achieve Reform 263 C. The Youth Court Act is Born 265 1. A Bold, Yet Sensible, Proposal to Achieve Reform 266 2. Building a Base of Support 268 D. Difficulties Encountered 270 E. Reaping What You Sow: The Momentum Builds and Cuomo Acts 273 F. New York Raises the Age 277 Conclusion 280 INTRODUCTION

This past April of 2017, after years of debate, the New York State Legislature passed a comprehensive reform bill raising the age of criminal responsibility from sixteen to eighteen. (1) New York became the forty-ninth state to raise the age of criminal responsibility above the age of sixteen. (2) When Governor Andrew Cuomo signed the bill into law, New York finally fulfilled a more than fifty-year-old promise made by the State Legislature in 1962. (3) At that time, a divided Legislature decided to keep the age of criminal responsibility at sixteen, but promised that this was "tentative" and subject to change upon the completion of a study of the impact of the new court and related laws. (4) Although the study was completed, no bill was ever introduced and the "tentative" decision remained for the next five decades.

The battle to raise the age in New York was a long and arduous one, filled with many obstacles and lessons. To paraphrase Justice Vanderbilt's famous aphorism, criminal justice reform is not a sport for the short-winded, (5) and neither was the fight to keep sixteen- and seventeen-year-old children out of the adult criminal justice system.

Notably, the push that finally achieved reform this past April was ignited by what many would consider to be an unexpected source--the State Judiciary. This advocacy would seem to be at odds with Chief Justice Roberts's judicial philosophy. During his confirmation hearing in 2005, he described the job of a judge as being akin to an umpire who must only "call balls and strikes and not [] pitch or bat." (6) There is much wisdom to Chief Justice Roberts's analogy. Judges should not be "judicial activists" and should not arrive at legal conclusions based on their personal agendas or biases. In other words, judges should not be divorced from the rules of the game--rules that are framed by the legislative and constitutional constraints of our tri-partite system of government.

But that does not mean that state judiciaries, particularly Chief Justices (7)--the stewards of the justice system in their respective states--should simply sit idly, treating citizens as faceless numbers on the crowded court docket. At a time when many Americans lack confidence in the criminal justice system (8) and access to justice is unfortunately largely driven by wealth, (9) state judiciaries should be proactive in the pursuit of equal justice. In the complex world of today, the modern Judiciary must ensure that justice is really and truly being done. Namely, state judiciaries can and should raise awareness when the system fails and propose solutions. Who better to spot such problems than the state's top jurists who have the expertise and experience to best appraise the weaknesses of the judicial system? As such, the judicial branch has a prominent part to play in promoting reforms that are essential to its constitutional mission and to the administration of justice. Such reforms will ultimately enable judges to better serve the public and the society in which we live. The courts are the emergency room for society's ailments and must be a part of the solution to the problems of today. (10)

The push to raise the age of criminal responsibility in New York provides a compelling case study for why the Judiciary can and should be the laboratory of criminal justice reform in order to effectuate its constitutional mandate to achieve justice. This piece seeks to highlight the unique pulpit that judicial leaders hold and how judges can use their position to positively affect public policy discussions and reform. Through the lens of my own experience as New York's Chief Judge, this Essay will provide an account of the long battle to raise the age of criminal responsibility in New York, from its inception to law.

Part I provides a general background of the age of juvenile criminal responsibility in New York discussing the 1962 "tentative" decision to keep sixteen as the cut-off age for criminal responsibility. It also discusses the implications of this decision--in particular, how New York began to lag behind as other states embraced raising the age of criminal responsibility in response to a rapidly evolving body of science recommending such a change. Part II discusses the heavy price that New York paid as a result of this "tentative" decision by highlighting how the law disproportionately affected juveniles of color, how it did not make our cities safer, and how it was economically wasteful. Part III discusses the push to raise the age of criminal responsibility in New York from my perspective as Chief Judge, by highlighting how the Judiciary's proactive pursuit of justice helped make this reform a reality.

  1. BACKGROUND OF JUVENILE CRIMINAL RESPONSIBILITY IN NEW YORK

    New York has a proud history of being at the cutting edge when it comes to juvenile justice reform, championing a system that emphasized rehabilitation for juvenile offenders. (11) However, the New York Legislature's failure to revisit its 1962 tentative decision to not raise the age of criminal responsibility marked the beginning of a shift in the law towards a more punitive system. The tentative decision became permanent law with the passage of time. Meanwhile, much of the nation reformed on the basis of a rapidly evolving body of science showing that the criminal justice system should not treat juveniles as adults. As a result, New York remained marred by its failure to raise the age of criminal responsibility for the next fifty years.

    1. Family Court Act of 1962 and the Broken Promise

      Prior to the current raise-the-age law, the Family Court Act of 1962 (12) (the "1962 Act") was one of the last progressive juvenile criminal justice reforms undertaken by the New York State Legislature. A year earlier, the 1961 Constitutional Convention established the Family Court. (13) The Convention extensively discussed whether to raise the age of criminal responsibility to eighteen. (14) Unable to reach a consensus, the Convention ultimately invited change via legislative act, rather than the cumbersome constitutional amendment process. (15)

      The 1962 Act incorporated several unprecedented provisions, which were a great step toward securing rights for New York's juvenile offenders at the time. Of note, Article 7 of the 1962 Act provided that juvenile delinquents would be tried in Family Court, not in the adult criminal systems. (16) Importantly, the 1962 Act granted these juveniles most of the procedural rights afforded under the adult criminal system. (17)

      However, for all its good, Section 712 of the 1962 Act defined Juvenile Delinquents--those entitled to the protections of the law--as persons "over seven and less than sixteen years of age..." (18) This decision was contrary to the legislative history, which demonstrated widespread support for extending the Family Court's jurisdiction to all children under the age of eighteen. (19) Yet, by maintaining the ceiling of the Family Court's juvenile jurisdiction at fifteen, the 1962 Act ensured that thousands of sixteen- and seventeen-year-old nonviolent juvenile offenders would be processed through the adult criminal justice system, a system that was, at best, ill-prepared to provide for their developmental needs. (20)

      The legislative history indicates that various advocacy groups and stakeholders offered different recommendations as to how sixteen- and seventeen-year-olds should be treated under the law. (21) Nevertheless, the Family Court ceiling was maintained due to the "tough-on-crime" versus "soft-on-crime" debate within the political branches. (22) Like the Constitutional Convention before it, the Joint Legislative Committee deferred a decision on raising the age in order to pass the 1962 Act. (23) They agreed to maintain age sixteen as the cut-off point, but they noted that this decision was "tentative and subject to change" upon further study of the impact of the new court and related laws. (24) The Joint Legislative Committee further ordered that this study be completed and new legislation be submitted by the 1963 legislative term. (25)

      The study was indeed completed in time, but the Joint Legislative Committee failed to reach a firm decision on whether to raise the age of criminal responsibility. As a result, no legislation was proposed. Rather, the final paragraph of the 1963 report states that "the Legislature is under a constitutional mandate to examine again the question of whether the juvenile delinquency age should be changed or other arrangements made for dealing with young offenders." (26) However, the legislative history inexplicably ends there, with no evidence of further attempts by the Legislature to re-examine the age of juvenile delinquency. (27)

      Subsequently, the legislative climate in New York began to shift away from the rehabilitative theory that had led to the enactment of the 1962 Act--the main focus became punishment. (28) A few, high-profile and gruesome crimes committed by juveniles in the early 1970s (29) caused public outcry and provided...

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