New York State Defenders Association, Inc.
Public Defense Backup Center
194 Washington Ave. · Suite 500 · Albany, NY 12210-2314

Telephone (518) 465-3524
Fax (518) 465-3249
www.nysda.org

MEMORANDUM IN OPPOSITION
(S.2006/A.3006 Part J)
Executive Proposal to Raise the Age of Criminal Responsibility
RECOMMENDATION: DISAPPROVAL
We strongly support the idea of raising the age of criminal responsibility in New York State and are
happy that the idea has finally emerged as an issue worthy of Legislative deliberation and review. But
that is exactly what is needed – Legislative deliberation and review. The lengthy bill, which follows on
the heels of a 164-page report issued in January, is too long, too complicated and too nuanced to be
rushed through in the compressed political process that is represented by budget negotiations. This is an
ends-means question with many supporting the flawed legislation because they believe if it does not
happen now, in this budget, it will never happen. But the means are the ends in the making, and the
greater likelihood is that the damage to be done to children by a half and poor step will be with us for a
long time to come. Therefore, we urge restraint, the withdrawal of the proposed legislation from budget
deliberations, and continued dialogue on the question.
Examples of the kind of serious damage we see that will flow from the bill and which rather should call
for debate and analysis follow:
 Making a youthful offender adjudication a predicate: The legislation would treat certain prior
youthful offender adjudications as previous or predicate felony convictions for sentencing purposes.
This would seriously undermine two critical reasons for the youthful offender law: the recognition that
teens should be treated as children, not adults, and the importance of minimizing future consequences
for offenses committed during youth. Judges weigh various factors when considering whether to grant
youthful offender status and a judge’s informed determination that the interest of justice would be
served by such an adjudication should not be statutorily obliterated because of a future offense. Existing
sentencing laws allow judges to sentence defendants to the high end of the applicable range where
appropriate. The court’s discretion should not be eliminated by mandating that a youthful offender
adjudication be considered a predicate.
 Moving to a determinate sentencing scheme for all juvenile offender sentences and subjecting some
16- and 17-year-olds to adult sentences: The legislation proposes changing all juvenile offender
sentences (not just those for 16- and 17-year-olds) from indeterminate to determinate sentences, which
will likely increase the amount of time these youth spend in custody. Instead of having an opportunity to
be released earlier based on improvements in behavior, successful completion of programs, or other
achievements, juvenile offenders will have to serve 6/7s of their sentence, thereby eliminating an
incentive to change their lives. And determinate sentences are generally more harsh and will result in
youth spending more time in juvenile and adult prisons.
 Adolescents should not be sentenced as adults: Even though the bill calls 16- and 17-year-olds
convicted of a class B violent felony juvenile offenders, it would allow courts to sentence them as adults.
And it appears that the bill authorizes courts to sentence some 16- and 17-year-olds convicted of nonviolent drug and contempt offenses to life without parole, which violates the principles laid down in
Miller v Alabama, No. 10-9646, 567 US __ (6/25/2012) [Vulnerable and immature youth with
underdeveloped responsibility are reckless, impulsive, uniquely subject to outside influence, heedlessly

 take risks, and possess as yet unformed characters making their limited ability to extricate themselves
from shocking, crime-producing settings less likely to be evidence of irretrievable depravity ].
 Failure to include all crimes committed by 16- and 17-year-olds and allowing prosecution for some
violations: While the legislation is touted as raising the age of criminal responsibility, it does not cover all
crimes, choosing instead to create two classes of 16- and 17-year-olds: one that is comprised of youth
who are considered children and deemed worthy of treatment and rehabilitation and another that is
comprised of youth who, unless found to meet the prosecutorially controlled removal standards, are
transformed into adults. This division is likely to perpetuate the racism and classism the bill aims to fix.
Additionally, 16- and 17-year-olds should not be subject to arrest and prosecution for disorderly conduct
and harassment. Currently, children subject to Family Court Act (FCA) article 3 cannot be charged with
violations; there is no valid justification for allowing such charges against 16- and 17-year-olds.
 Right to counsel at arraignment or initial proceeding and vertical representation: The bill is drafted
with a New York City-centric perspective; it fails to account for the unique problems throughout the
other 57 counties, overlooks the problems of counties with single judges sitting as Family Court and
County Court jurists, and ignores the vast distances associated with related transport and the ensuing
impact on attorney client relationships. The bill does not address how the existing public defense and
attorney for the child systems will operate under the new laws, including whether youth whose cases are
transferred from Criminal to Family Court will be represented by the same attorney throughout the
proceedings.
If the police arrest a 16- or 17-year-old for the offenses listed in the proposed amendments to Penal
Law § 30.00, he or she must be brought before the Youth Part and, if not in session, the nearest
magistrate designated by the Appellate Division. However, there is no requirement that the Appellate
Division designate a magistrate in each county or that it designate any magistrates. And there is no
guarantee that counsel will be present to represent the youth at arraignment.
Family Courts outside of NYC are not usually open after regular hours. So 16- and 17-year-olds arrested
under FCA article 3 after hours will have to be transported to a magistrate, if any, designated by the
Appellate Division, and if there is no magistrate available, they can be held until the next Family Court
session or up to 72 hours, whichever is sooner. Even if there is a magistrate available, in many counties
an attorney will not be present in court to represent the child and seek release or bail. If the child is
brought to Family Court, the bill does not require the presence of an attorney for the child, let alone an
attorney for the child with the knowledge and training to make a bail application.
 Right to seek removal and removal standards: The bill eliminates critical due process rights of all
juvenile offenders to have counsel move for removal to Family Court, both pre- and post-indictment.
Defense counsel must be able to advocate for their clients and they are best able to present all the
factors justifying removal. Further, the Criminal Court should have the discretion to grant removal in
the interest of justice, even if the youth played a primary role in the commission of the crime or an
aggravating circumstance exists, factors specifically used to bar removal in the current draft.
 OCFS facilities for Pre- and Post-Adjudication or Sentencing: While the effective dates of the bill
are designed to give OCFS time to prepare additional facilities for this new population, there is no
indication of how many facilities will be established and whether youth will have to be transported to
other counties for detention or post-adjudication or sentencing. Unlike the Close to Home initiative,
there is no requirement that OCFS keep non-NYC youth in their communities.
The New York State Defenders Association strongly opposes passage of this bill in this form
and as part of the budget.
For more information, contact Jonathan E. Gradess at 518-465-3524. (3/17/2015)