Young offenders and the adult criminal justice system are generally not a good fit.
Sending 16 and 17 years olds to adult jails and prisons means they serve their time alongside older, more experienced criminals. They're also at an increased risk for emotional and physical abuse, statistics say. And they're more likely to re-offend in the future.
Yet each year, between 40,000 and 50,000 youth age 16 and 17 are tried as adults in New York's courts; more than three-quarters of them face misdemeanors or are charged with nonviolent felonies.
New York and North Carolina are the only remaining states to automatically treat 16- and 17-year-old offenders as adults. But that could change.
Governor Andrew Cuomo said in his State of the State address last month that New York must reform its outdated approach to youthful offenders.
"It's not right, it's not fair," Cuomo said. "Let's form a commission on youth public safety and justice and let's get it done this year."
A statewide coalition of children's advocacy groups, mental health groups, pediatricians, faith groups, and civil rights organizations has been pressuring state officials to act on the issue. The Raise the Age campaign began last year with the goal of convincing the public and lawmakers that New York needs to stop treating all 16- and 17-year-old offenders as adults.
The push is grounded in years of scientific research showing that 16 and 17 year olds are still in critical stages of brain development. At those ages, youth are pushing their boundaries, says Dr. Jeff Kaczorowski, a pediatrician and president of the Children's Agenda as well as a member of Raise the Age. They're starting to make serious choices for themselves, he says, but may not fully consider the consequences of their actions.
Society already recognizes this to a degree, he says. Citizens can't vote until they're 18, and adults under the age of 21 can't buy alcohol.
Some offenses are not youthful indiscretions, however. Some 16 and 17 year olds commit serious, violent crimes including murder, rape, or arson. And many proponents of raising the age acknowledge that there are cases that may still warrant a tough approach.
Opinions differ on exactly how the state's laws should be modified. Some groups want all cases involving youth under age 18 to be handled in family court. And New York Chief Judge Jonathan Lippman has proposed creating a special court to handle 16- and 17-year-old offenders.
The complexity of the issue is why Cuomo's call for a commission is receiving substantial local support. Kaczorowski backs it, as does Carlos Garcia, executive director of Partners in Restorative Initiatives, a local restorative justice organization that's also a member of the Raise the Age coalition.
"It's a start and I applaud [Cuomo] for it," Garcia says. "But we need more than a study. We need results."
County human services officials say the commission is a good idea. And District Attorney Sandra Doorley says it's the right approach, which is why she says she wants to serve on it.
Doorley's point is that prosecutors and law enforcement need to be included in juvenile justice reform discussions. Prosecutors across the state have dealt with the most violent offenders in the 16- to 18-year-old age group, she says.
New York does have measures in place to divert some young offenders from trial and jail time, such as drug courts, mental health courts, and modified forms of probation. And the state also allows judges to designate 16 and 17 year olds as youthful offenders. The designation carries lighter sentences, and convictions are sealed so that the youths' records don't follow them for the rest of their lives, Doorley says.
A stronger focus on diversion for less serious offenses could be a good approach, she says. But the violent offenders should still be treated like adults, she says.
"You've got to look at their underlying actions," Doorley says. "When they show us that they're a danger to society, we need to look at them a little differently."
But many of the youth who pass through Monroe County's criminal courts are facing less serious, nonviolent charges. In 2010, 2,200 youth entered the adult criminal justice system in Monroe County, says the Children's Agenda's Kaczorowski. Of them, 88 percent faced misdemeanor or nonviolent felony charges.
Garcia, who is also a former police officer, says it may be better to deal with young offenders in the community. Restorative justice practices could be a good fit for some nonviolent offenders, he says. That could mean bringing offenders and victims together so offenders can learn the impact of their actions and choices, he says.
"With some thoughtful introspection we may be able to come up with some better alternatives than jail time," Garcia says.
Juvenile justice issues are at the forefront of discussions about how New York prosecutes and punishes 16 and 17 year olds. But there are also financial considerations.
If more cases are diverted from criminal courts or handled in family courts, for example, the District Attorney's Office could see a decrease in caseloads, Doorley says. But that could also lead to bigger caseloads for family courts, she says, which are already overburdened.
The county operates a juvenile detention center to hold youth with cases pending in family court. More diversionary programs could mean that the county is responsible for housing a smaller pool of youth, says Michael Marinan, the facility's director.
But if the county ends up having to house more 16 and 17 year olds, he says, that could lead to higher costs due to different space and programming needs.
"This is a big move and there is a lot to take into consideration as we move forward with this," says Kelly Reed, commissioner of the Monroe County Department of Human Services. "I appreciate the governor's decision to make this a studied issue before he takes a position on it."
And if the state does make reforms, she says, it should back them up with funding.
Since the state doesn't have an active, detailed proposal to discuss and debate, officials aren't quite sure what to expect.
"I think the only thing that we do know is that a number people that are now confined in the jail for minor offenses simply wouldn't be," Marinan says.