New York Law Removes ‘Unnecessary’ Step for Children Charged With Felonies

16-year-olds won’t have to reappear in adult criminal court if they’re arrested when youth court isn’t in session.

Until late last year, New York was one of just two states in the country that automatically prosecuted 16- and 17-year-olds as adults. Then lawmakers passed sweeping legislation in 2017, designed to treat children in the criminal legal system differently.

But as a result of the legislation, known as Raise the Age, the majority of the nearly 2,000 children who have gone through the courts since its passage must return to court a second time to hear charges against them and make their pleas, creating what advocates denounce as a needless step in an already traumatic process. On Friday, Governor Andrew Cuomo signed into law a bill that would get rid of that step.

Under Raise the Age, children 16 and younger who are charged with a felony are processed through a separate section of adult criminal court known as the “youth part.” (On Oct. 1, 17-year-olds will be eligible for youth part hearings.) These proceedings are overseen by judges trained in family law, who are supposed to transfer the majority of cases to family court, allowing for an exception in cases in which a child uses a deadly weapon, causes “significant physical injury,” or engages in illegal sexual conduct, according to the bill text.

In family court, there are no fines and fees for children, their records don’t carry the same effect as they would in criminal court, and their punishments are less severe, Nancy Ginsburg, director of adolescent intervention and diversion team at the Legal Aid Society, told The Appeal. “The potential outcomes for a child who is prosecuted in the adult system are significantly more serious,” she said.

But youth part hearings only occur on weekdays from 9 a.m. to 5 p.m. Children who are arrested outside those times must appear before a magistrate, who, until Friday, did not have the authority to move the case to family court. As a result, children would have to return to the youth section of the court when it’s next in session, even if the district attorney consents to transferring a case out of criminal court.

The new law, introduced by state Senator Jamaal Bailey and passed unanimously in the state Assembly and Senate in June, will allow magistrates to transfer children to family court, as long as the district attorney agrees. “If all parties are in agreement, this eliminates the need for a next day appearance. It’s a simple fix,” Bailey told The Appeal.

A June report by the New York City Criminal Justice Agency analyzed how 16-year-olds were processed in the three months after Raise the Age took effect. Two-thirds of children’s first appearances on felony charges took place before magistrates instead of in a youth part. In Manhattan, 8 in 10 children appeared in front of a magistrate.

Martin Feinman, director of juvenile justice training for the Legal Aid Society’s juvenile rights practice, told The Appeal that this extra appearance can be devastating for families. Along with the emotional turmoil that accompanies an arrest, children often miss school and parents or guardians miss work. “To say [this is an] inconvenience doesn’t do justice to the trauma of the family and the disruption of the family life,” Feinman said. The extra youth part appearance, he said, “is completely unnecessary, it’s a complete waste of time.”

Even after passage of Raise the Age, counties have lagged behind in moving felony cases for 16- and 17-year-olds to family court. In Queens, just 57 percent of cases were moved in October through June, the latest month that data is publicly available. In Manhattan, that figure is 76 percent, while Brooklyn leads New York City with 92 percent. Feinman attributed the variations to prosecutors’ willingness to embrace the law.

Queens Borough President Melinda Katz—who recently won the Democratic primary for district attorney in a tight race against progressive public defender Tiffany Cabán—vowed to ensure that more children are sent to family court if she wins the November general election. “If a crime has been committed, my office will be utilizing family court as much as possible,” she told The Appeal in an email. The ‘extraordinary circumstances’ clause to keep [16-year-olds’] cases in adult court should be used in only the most severe cases and would require my approval.”

Brooklyn District Attorney Eric Gonzalez told The Appeal that he has pushed his prosecutors to comply with Raise the Age and remove the majority of children from criminal court. “I believe that minimizing young people’s interactions with the criminal justice system and the revolving door of incarceration and reoffending is beneficial for their future, for the health of our communities and for public safety,” Gonzalez wrote in an email. “Family Court is the best-equipped forum for young offenders.”

Correction: An earlier version of this article misstated Martin Feinman’s title. He is the director of juvenile justice training for the Legal Aid Society’s juvenile rights practice, not attorney-in-charge of the Legal Aid Society’s juvenile rights practice in Brooklyn.