Reform For the Sake of Reform

During the almost two decades I spent on the County Court bench, I witnessed some pretty horrific episodes of man’s inhumanity to man.

Some of the worst episodes involved defendants who were being prosecuted as “Juvenile Offenders.”

A juvenile offender was a defendant who was age thirteen and charged with murder as a sexually motivated felony or a fourteen or fifteen year old and was charged with certain very serious violent felonies.

A juvenile offender was eligible to be prosecuted in County Court as an adult rather than Family Court.

The principal difference between a juvenile offender and an adult, a person over the age of sixteen, was the severity of the sentence that could be imposed.

Sentences for an adult were determinate sentences for which the defendant had to serve 6/7 of the sentence imposed followed by a period of post release supervision during which the defendant could be returned to prison if conditions of release were violated.

An adult charged with a violent sex offense could be sentence up to twenty-five years, in some cases, and was not eligible for release until more than twenty-one years had been served.

A juvenile offender, convicted of the same offense, would have an indeterminate sentence imposed with a minimum and maximum range. Once the minimum sentence had been completed, the defendant was eligible for parole and had to be released after serving 2/3 of the sentence.

The other distinction between an adult sentence and a juvenile offender sentence was that the minimum and maximum sentence for a juvenile offender were much less.

An adult convicted of Robbery in the First degree could be sentenced to a determinate sentence of between five and twenty-five years. If sentenced to the maximum, twenty-five years, the inmate would be required to serve over twenty-one years with post release supervision.

A juvenile offender convicted of the same crime could not be sentenced to more than ten years and the minimum period of that sentence had to be 1/3 of the maximum.

Thus, the harshest sentence that could be imposed was a maximum of ten years and the minimum that had to be served was three and one-third years when the juvenile offender became eligible for release.

Two weeks ago, as part of the state budget approval, legislation called Raise the Age was passed and signed by the Governor.

It dramatically will change the way criminal prosecutions will be handled in New York’s courts.

The major change is that it raises the age of criminal responsibility from sixteen to eighteen.

All misdemeanors and violations will be handled in Family court rather than in City Court or Justice Court.

Almost all non-violent felonies will be prosecuted in Family Court too, since they would be transferred to Family Court after thirty days unless the District Attorney can demonstrate “extraordinary circumstances” which have yet to be defined.

The law further provides that these defendants may not be questioned without the presence of a parent.

It establishes a “Youth Part” in County and Supreme Court where prosecution of these most serious crimes will be conducted.

The most serious and questionable change, in my opinion, is that sixteen and seventeen year old defendants charged with violent felonies, will be treated the same way that thirteen, fourteen and fifteen year old defendants are.

Those case will remain in the Youth Part but could be removed to Family Court if no serious physical injury occurred, no weapon was used and no sexual conduct was engaged in.

If convicted of a violent felony offense, defendants under eighteen will be sentenced pursuant to the Juvenile Offender Law.

The New York Times reported that these cases number approximately 20,000 and amount to one percent of the cases affected.

That figure sounds light to me.

The law also raises the age for which a person could be adjudicated a Youthful Offender and have the records of any conviction sealed from nineteen to twenty-one.

The law has some ameliorative impacts that have merit.

Imprisoning youthful defendants in maximum security prisons with adults could have and should have been prohibited a long time ago.

Defendants that are less than eighteen should not be saddled with a criminal record for a violation, misdemeanor and some non-violent felonies but other feature fail to appreciate the current social climate.

We are living during a time when the cities are plagued by gang violence and increased shootings.

It isn’t hard to predict that when these changes take effect, those doing the killing will have less incentive not to take lives because they recognize they will be imprisoned for less time and will be back on the street much sooner.

One of my most memorable and horrific cases involved a fifteen year old who, over the course of several months, physically beat and tortured his pregnant girlfriend’s toddler to death on the pretext of imposing “discipline.”

I received a lot of correspondence from people that were experts and not experts, who urged me to take his age and immaturity into account when sentencing him.

There were two factors I took into account.

The conduct he had engaged in was so palpably wrong and sadistic that anyone would have appreciated it was not acceptable or normal.

I could not ignore that even in the animal kingdom, the young are not killed by the parent animals.

I also took into account that when I sentenced him to the maximum of ten years to life, he would be parole eligible at the age of twenty-five if they released him.

He would be able to start another relationship, father more children, and engage in this abuse all over again.

I also cannot help but reflect on the fact that if this law had been in effect when Police Officer, Wally Howard, had been murdered by a sixteen year-old gunman, that killer would have been back on the street a long time ago.

When I ponder these changes and Governor Cuomo’s celebration of them, I can’t help but remember something my mother used to say.

“The road to hell is paved with good intentions.”