Teenagers who are charged as adults in New York can face a lifetime in prison starting at age thirteen. Under the state's Juvenile Offender statute, teenagers between the ages of 13 and 15 charged with certain violent felonies are automatically prosecuted in New York's adult courts and thus face adult-level sentences of incarceration. New York is also one of only two states in the country that allow teenagers as young as sixteen to be automatically prosecuted as adults. Both Juvenile Offenders and teenagers older than 16 were not included in the recent reforms.
I taught a college course to a group of teenagers in one of New York's upstate facilities. The young men have all spent at least two years in custody and several members of the group face indeterminate sentences ending in life in prison. Many will grow up in custody. My students are learning about civics, the legislative process and electoral politics. When Governor Cuomo introduced the Close to Home initiative in his 2012 budget, my students and I discussed it. When they learned that the initiative would not apply to them, they asked "why?" For the first time, otherwise confident in my teaching role, I found myself stumbling over my words. I thought to myself: "because you're the 'bad' kids." When I looked at them, I could see a spectrum of emotions on their faces – indignation and anger, but also the looks of people who know and understand that they are being tossed aside, treated like waste.
With New York's progressive juvenile justice reform movement, it is easy to forget that we still subject too many of our young people to lengthy sentences of incarceration. We do this despite the enduring recognition by researchers that long-term custodial experiences stunt growth and development. Moreover, New York's parole system is notoriously stringent: Few teenagers charged as adults are released at their first "board." For those facing life imprisonment, an interminable amount of time is spent in custody before release. One of my students, arrested at age fifteen, doesn't see the parole board until 2023.
Many of these teenagers facing long sentences are charged with serious and violent felonies, including murder, armed robbery and sexual assault. In 2011, robbery was the most common charge for the 13- to 15-year-olds arrested as adults in New York. Many of the young people I have taught, interviewed and represented have engaged in gun violence and physical assaults. They've gone in and out of school suspension offices, psychiatric hospitals and the juvenile and adult justice systems. Yet, paradoxically, their visibility as young people who are considered to be violent and intractable makes them more easily cast aside and discarded as objects of reform. They are not as easy to save, and thus more easy to abandon to imprisonment.
Many of these teenagers charged with violent crimes have been abandoned, abused and traumatized throughout their lives, by individuals and by institutions. They live under constant surveillance by the police and they live in a near-constant state of anxiety about violence around them. And yet we continue to allow this group of young people to be sent away to institutions that simply reenact the same forms of violence that has already been done to these young people.
In the interest of preventing violence from re-occurring, we must be able to treat these young people accused of violent crimes with dignity and humanity, and allow them the opportunity to receive the treatment that they require to grow up, get out and stay out of prison. This should include adequate and expanded access to mental health care, the opportunity to receive an excellent education if they are in custody and a 'bridge' which would enable them to walk out of custody into their communities with the resources that they require to get into school, get a job and find sustainable housing.
Despite substantial reforms occurring in New York's juvenile justice system, few of these changes have affected the lives of teenagers charged as adults. The Rikers Island's adolescent jail continues to have well-documented incidences of violence. Residential mental health care for teenagers has arguably contracted, rather than expanded. Teenagers charged as adults are released from custody on adult parole, and many experience the lifetime stigma of a criminal conviction. Most, incarcerated for so long, end up with no one waiting for them on the other end who can connect them to resources in their communities; homeless and marginalized, they are left behind even when they finally do get 'close to home.' I know these things because I constantly receive phone calls and letters from countless numbers of young people I have taught and represented who ask me for help. Released from custody, they face a crisis of where to live, eat and work.
Members of the United States Supreme Court have recognized that we cannot fail to confront violent crime by teenagers. Just this summer, the court decided that life without parole cannot be a mandatory sentence for teenagers charged with murder. This followed a 2010 decision, in Graham v. Florida, that teenagers charged with non-homicide offenses cannot receive life without parole. In 2005, the court decided in Roper v. Simmons that young people under the age of 18 cannot receive the death penalty.
Two pieces of legislation were proposed in New York this year to 'raise the age' of criminal responsibility, albeit in different ways. One piece of legislation, endorsed by Chief Judge Jonathan Lippman, would create specialized youth courtrooms for 16- and 17-year-olds charged with non-violent crimes. The other piece of legislation would allow for all individuals under the age of 18 to have their cases originate in Family Court, with exceptions for young people charged with violent offenses. While an important step forward, both pieces of legislation continue to allow for lengthy sentences of incarceration for young people charged with violent crimes.
These so-called 'bad kids' cannot remain invisible. These teenagers will increasingly populate our prisons if we continue to treat them as pariahs. The serious crimes that they are charged with do not and cannot define them for life.