The hardest part of my job as a prosecutor is facing victims or their relatives after the perpetrator has figuratively—and sometimes literally—gotten away with murder. Take what happened to John B., 28, in a relatively empty car on the Number One subway train shortly before Christmas a few years ago. As the train rumbled south from 34th Street to 28th Street, the door between the cars banged open and in swaggered every New Yorker’s nightmare—four teen hoodlums in army-style parkas, stocking caps, baggy pants, and unlaced, steel-tipped boots. As the four hooted and jumped around the car, the passengers pretended not to notice, terrified of making eye contact. Then the hoodlums surrounded John and his date, Loretta W., 27, and each in turn put his hand on her handbag and then let go, teasing their victims and delighting in the show of control. Suddenly, one youth yelled, “Let’s do it!” They threw John to the floor and began kicking and punching him. He covered his head with his arms, but just as he raised it to beg them to stop, the leader of the wolf pack, Tarion W., 15, jumped onto a seat, grabbed the overhead strap, and swung forward, driving his steel-tipped boot through John’s glasses and sending shards into his eye. The boys jumped off the train at 28th Street, laughing and high-fiving. The attack wasn’t about money; it was sport.
A transit cop nabbed the wolf pack on the platform, and Tarion ended up in Family Court, charged with felony assault. His punishment: 18 months—the maximum he could get.
Eighteen months? In a camp-like residential facility? For a violent, unprovoked assault of such ferocity? Loretta shook her head incredulously. “Is that all he gets? It can’t be true,” she said to me. But however unbelievable, that really is the maximum period of incarceration that New York’s juvenile justice code allows for most crimes—including many crimes of violence—committed by 13- to 15-year olds and for any crime, including murder, committed by a 12-year-old. True, the authorities of the residential facility can extend the term if they can prove a need for continued confinement, but they rarely do. Even for the hardest-core juveniles, the average stay is a mere 10 months. As for the nonviolent teen felons—the car thieves and the pickpockets—though they are liable for the same 18-month maximum as kids who’ve committed reckless manslaughter or robbery in a wolf pack, the overwhelming majority get off with nothing more than probation. It’s not quite a no-fault system, but New York’s legislature, which passed and preserves the Family Court Act that governs the administration of juvenile justice in the state, has made sure that a New York crime victim’s suffering comes cheap.
Little wonder that teen crime in New York City is soaring, even while crime overall has dramatically declined. In the decade from 1986 to 1995, robbery cases referred for prosecution in the New York City Family Court tripled, increasing over 30 percent from 1993 to 1994 alone, and an additional 11 percent from 1994 to 1995. Felony assaults (often referred to as aggravated assaults) were up 30 percent from 1994 to 1995. Not just the amount but the severity of juvenile crime in New York has grown hugely. Ten years ago the majority of juveniles prosecuted in the Family Courts of New York City were arrested for misdemeanor offenses. In 1995 all but 6 percent of the crimes referred for prosecution were felonies, and 86 percent were crimes of violence or major narcotics offenses. Possession of a loaded gun—often considered a direct link to the number of homicides—more than quadrupled among juveniles arrested in New York City during the early 1990s, at the very moment when the Giuliani administration’s aggressive enforcement policy was reducing illegal gun possession in the city overall.
Everything in the juvenile justice system is designed to relieve teen malefactors of responsibility for their criminal acts. Start with the system’s euphemistic language, which defines deviancy down in a way that approaches Orwellian newspeak. Under the Family Court Act, gun-toting teen muggers are not criminals but juvenile “delinquents,” and they have not committed crimes but rather “acts which if committed by an adult would be a crime.” As they haven’t committed crimes, it follows that they acquire no criminal record. They are charged in Family Court as “respondents,” not as defendants. They are not indicted but “charged in a petition.” They don’t go to trial but appear at a “fact-finding hearing,” where they are “adjudicated” rather than convicted, and they go to “disposition” rather than being sentenced. For a felony assault that results in a mangled face and a punctured eye, the architects of New York’s juvenile justice system do not want to punish the offender; they seek his rehabilitation through treatment.
But first you have to catch a teen criminal—and the Family Court Act makes that even harder to do than catching adult criminals. The Family Court has no power to issue search warrants. The only way within New York’s present juvenile justice system to enter an apartment to retrieve, say, a gun brandished by a 15-year-old mugger is to rely on the good faith of the perpetrator or the cooperation and consent of one of his parents. If the police do retrieve the gun without a search warrant, lawyers for the offender—usually from New York City’s largest criminal defense office, the Legal Aid Society—would seek suppression of the weapon as evidence on the grounds that police acted outside the Constitution, which requires a search warrant. Of course, the Legal Aid Society has repeatedly opposed giving the Family Court the authority to issue search warrants, assuring their armed clients the protection of a legal Catch-22: no search warrant authority for the court, but an absolute requirement for a search warrant in order to seize evidence without fear of suppression.
Family Court judges also lack the authority to issue arrest warrants, although the U.S. Supreme Court requires their use in juvenile delinquency proceedings. Exceptions to this constitutional standard exist: in the case of emergencies, for example, or hot pursuit. But when an offender is named by witnesses, police may not take him into custody while he is in his home without an arrest warrant. If police do enter the home without a warrant, the custody of the offender is deemed illegal, and all evidence flowing from that arrest will be suppressed. Again, the Family Court Act, with the full support of the State Assembly, has created an unworkable situation for police, who must expend limited resources waiting outside a perpetrator’s house until he emerges, use a ruse to lure him out, or ask him and a parent to come voluntarily to the precinct house to be questioned or arrested.
When the State Legislature enacted the Family Court Act in 1962, such omissions were understandable. Who could have foreseen the explosion in the 1980s and 1990s of gun and narcotics crimes among teenagers—crimes that police can’t combat without being able to find the contraband or weapon or to apprehend the suspect? Back in the sixties, young offenders were a tamer lot. But under today’s radically different circumstances, the Assembly’s leadership has pushed aside repeated requests from city officials and, more recently, from Governor Pataki, for the statutory authority to issue search and arrest warrants. Why? Some legislators believe these warrants would be a pretext to search and harass the parents of young offenders.
While the Legislature was establishing all these protections to insulate juvenile offenders from the consequences of their actions, the federal courts were adding safeguards of their own. In the 1960s the U.S. Supreme Court extended to juvenile delinquents all the procedural rights applicable to adult criminal defendants, with the sole exception of trial by jury. Miranda warnings, the exclusionary rule, proof beyond a reasonable doubt, and the other trappings of criminal justice became a constitutional requirement in juvenile proceedings. Violent young offenders got the right to court-appointed counsel, along with the right to suppress any evidence obtained without a search warrant or any statements made to police without a lawyer present or without the proper Miranda warning. It did not matter that the alleged purpose of the system was rehabilitation, not criminal sanction. Rehabilitation could begin only after the juvenile predator had taken advantage of all the criminal protections. The child advocates succeeded in developing a system that lets offenders reap benefits both ways: they may not be charged or convicted of criminal conduct, but they enjoy almost all the rights afforded under the criminal justice system.
In New York, the state courts have been every bit as generous with the rights of violent young felons. For instance, the right to a speedy trial in New York’s Family Court has been interpreted by New York’s highest court almost to guarantee the right to a trial within 90 days. Even when the defense causes the delays—or when the youth fails to show up in court—the clock keeps ticking against the prosecution. In effect, the youth who skips court may help engineer the dismissal of the charges against him. Sometimes, when the prosecution fails to start a trial as few as three days after arraignment, the court dismisses the case for failure to meet speedy trial guidelines. As if such safeguards within the juvenile justice system were not enough, the state courts now seem determined to shield juveniles with the Constitution’s Fourth Amendment procedural rights even in matters of school discipline. In September a state appellate court threw out the suspension from high school of a Bronx student whose loaded gun was discovered by a school security guard in a patdown conducted without, the court said, “reasonable suspicion.”
New York, it is often said, is tough on teen criminals: after all, once they turn 16, it tries them not in Family Court but in the adult criminal courts. Many other states don’t send them to adult courts until they reach 17 or 18. New York even sends 14- and 15-year-olds to the adult courts for rape or armed robbery or for an assault with a deadly weapon that leaves the victim crippled for life. This toughness, though, is usually mere illusion. For New York has still another cloak of protection to throw over these criminals: the Youthful Offender (YO) law.
A judge can choose to grant YO status to a teen thug at the time of sentencing, and the promise of it is often part of a plea bargain in felonies involving 16-, 17-, and 18-year-old defendants (along with 14- and 15-year-old offenders tried in adult court). YO status confers several advantages. First, it automatically reduces the sentence the offender faces—from a maximum of 5 to 15 years for a second-degree robbery, say, to a mere 1 1/3 to 4 years. In practice, however, most YOs get nothing more than 5 years of probation—an even lighter sentence than the paltry 18 months they might have gotten in Family Court.
Second, this section of the Criminal Procedure Law allows the courts to transform a criminal conviction into a non-criminal adjudication. All criminal aspects of the case—including the criminal record—disappear, in the hope that the offender’s misdeed was an isolated error of youth. The case record is sealed and remains unavailable for public inspection or even for use in future sentencing. Result: if a violent YO robber, free on probation, commits another violent robbery, the court must consider him a first-time offender. So instead of facing a much stiffer penalty as a second-time felony robber, he will just be sentenced as an adult first-timer.
Surely it would be wiser to grant YO status conditionally rather than conferring it irrevocably at the moment of sentencing. Under such a revised system, a version of which Governor Pataki unsuccessfully pushed this year, a court could revoke the YO status of a youth who fails to meet his conditions of sentence—by, say, failing to report to his probation officer—and could re-sentence him accordingly, giving him (for instance) the 5- to 15-year maximum that an adult would get for second-degree robbery. Further, if the offender committed another crime while on probation, this change would allow the first crime to serve as a “predicate offense,” meaning that it could be used to enhance his sentence. As it exists, the YO scheme merely extends the lenient terms of the Family Court Act: minimum sanctions for maximum crime.
The philosophy behind the state’s no-fault juvenile justice system might have made sense in the days when juvenile offenders stole apples and picked pockets, often driven by poverty. Such acts really might have been isolated errors of youth, so the law gave these kids another chance, saving them from the lifelong stigma of their isolated mistakes and treating them not as criminals but as children in need of the paternal care of the state. But are the teen criminals in court today, almost nine out of ten of whom are violent felons, really juvenile delinquents rather than criminals?
Does it make sense to think in such terms about chronic malefactors like Keith A., who was prosecuted along with several accomplices for savagely beating a drunk in upper Manhattan’s Mount Morris Park and then dousing him with lighter fluid, as he screamed and begged, and burning him so badly that his charred corpse was scarcely recognizable? Keith, a couple of weeks shy of his 13th birthday (though a burly 15-year-old in appearance), then went home and had a snack: indifference to human life doesn’t come much more depraved. Keith’s neighbors knew he was trouble and crossed the street to avoid him; he’d beaten up drunks before, with bloodthirsty zeal, and he was on probation for grabbing and groping a girl at a swimming pool. Does it make sense to think that the 18-month sentence he received for the murder will bring him to his senses and set him on the straight and narrow?
And what about the fundamental assumption that underlies the whole philosophy of New York’s juvenile justice system—the idea that the system’s principal purpose is rehabilitation? Is there the ghost of a chance that the 36-month sentence handed out to 15-year-old Stacy L. will send him back to society rehabilitated? Two 13-year-old boys were walking together one morning near Lincoln Center when one of them accidentally bumped into Stacy. Both kept walking when he demanded an apology. Enraged, he spat out a few anti-white epithets and then kicked and stomped the two boys, knocking one unconscious and severing the ligaments in the other’s wrist, so that even after many operations he will never regain full use of it. The unconscious boy was left with blurred vision and memory loss. But as Stacy told the court psychologist, he “likes to hurt people.” Fond of guns, which he often carries, he had a robbery charge pending at the time of the attack. The psychologist concluded that he had an explosive personality, with a tendency toward violence, and ought to be removed from the community. But Stacy will almost certainly be back in our midst in about two years—bigger, stronger, unrehabilitated.
The truth is, we have had very little success rehabilitating violent teens. We’ve tried counseling and family preservation, prevention programs and community-based services—all with no discernible result. Boot camps, the most promising recent rehabilitation scheme, have just been shown to be a failure by a National Institute of Justice study. All the programs in the study exhibited “high attrition rates for non-compliance, absenteeism, and new arrests.” Even during their time in boot camp, offenders committed assaults against inmates and staff; some escaped. Those offenders who graduated and went into a follow-up program were arrested at rates of up to 70 percent before they had even finished the program.
Even if experts knew how to rehabilitate violent youths, it’s hard to imagine that the 18 months, or even 36 months, that young offenders spend in confinement is long enough to untangle a twisted character, to undo 14 or 15 years of bad influences and bad habits. Rehabilitation is an inner transformation, requiring the offender’s deepest engagement and assent; it isn’t something done from outside, like an engine tune-up, and it’s certainly something no government has ever proved itself able to effect, notwithstanding the claims of China’s Cultural Revolutionaries. The Division for Youth residential facilities to which teen malefactors in New York are sent haven’t found the secret. When these facilities release offenders, it’s not because they’ve been rehabilitated (and usually not even because they’ve served out their sentences) but rather because bed space for new arrivals has become scarce. A Daily News reporter once dryly observed to counselors at a facility that the youth they were releasing for lack of room was likely to re-offend. One counselor replied, with world-weary, cynical realism, that the teen’s release was appropriate because “he’s as good as he’s gonna get.” Such is the system’s own view of the possibility of rehabilitation. And in the juvenile justice system of Family Court, no parole board exists to consider what effect the teen offender’s release will have on the community or to oversee his conduct once he is free, or even to tell his victim or the prosecutor that he’s again on the loose.
In 1976, after a decade in which juvenile crime had exploded both in quantity and severity, the Legislature changed the Family Court Act to require the courts to consider the protection of the community as well as the needs of the youth. Unfortunately, the Family Courts did not take the message to heart, and teen crime continued to grow, and grow more implacably violent. Yet however incapable we may be of routinely rehabilitating juvenile offenders, we know very well how to protect the community against the Tarions, Keiths, and Stacys in our midst. What works is incarceration.
Some 70 years’ worth of data from the FBI’s Uniform Crime Reports—which break down crime in the U.S. by age, gender, race, and crime type (among other factors)—show why incarceration works for teen criminals in particular. According to these reports, the likelihood of violent criminal activity increases as youths go from their early to their late teens: 17- and 18-year-olds are more likely to be arrested for violent crimes than 15- and 16-year-olds. When young offenders are released at 18 or 19, they are at the peak age for violent crimes like robbery and assault. And indeed, most of them do get re-arrested: a 1993 audit of juvenile justice facilities by then-state comptroller Ned Regan found that about 9 out of 10 offenders committed further serious crimes after being released.
In addition, the criminologists who compile the data have recognized for years that when offenders reach their early to mid-20s, violent activity starts to level off. Among those age 25 or so, the number of arrests for violent crimes drops precipitously, and for those approaching age 30 the rate of felonious activity drops faster and faster. To be sure, the entire population does not “age out” of violent crime past age 35. But in 1993 the number of 15-year-olds arrested for robbery was more than double the number of the entire group of those 40 to 44.
Juvenile justice philosophy runs counter to the criminological data. Simple logic suggests that violent young offenders who presently suffer little or no incarceration ought to be held for far longer terms. What purpose is served by setting the periods of incarceration for armed juvenile felons at only a few months, or giving them probation in a YO plea deal, when the statistics tell us that they are likely to commit more, and worse, crimes when released? Were the juvenile courts to sentence them to terms of six or seven or eight years, the total amount of crime would drop precipitously. Even if juveniles had to spend three or four years in confinement between crimes, the total amount of crime would shrink drastically. The sad truth about the juvenile justice system in New York is that it does little to interfere with young criminal careers.
Not only has it largely done away with the best means of preventing crime—locking up criminals—but it also fails to send the message that society takes crime seriously enough to hold criminals responsible and punish them severely. In every way, it has blunted the natural consequences of criminal actions. Indeed, the architects of the juvenile justice process have worked hard to create a system and a euphemistic language that deflect individual responsibility and remove all stigma and shame from the process. But these powerful sentiments are society’s best deterrent to antisocial behavior; virtually doing away with them ensures recidivism.
Calls for juvenile justice reform have echoed round the country for a decade, with mayors, governors, prosecutors, and state and federal legislators swelling the chorus. In most of the nation, the cries are beginning to be heard and acted upon, especially since legislators know the demographic data that show a big rise in the number of teens over the next 15 years. The U. S. Senate, for example, is looking to divert some of the $150 million a year that the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention spends on teen crime prevention programs into prevention by means of tougher law enforcement. More than half the states either have modified or are now modifying their juvenile justice codes to lengthen sentences and to try violent teens in the criminal courts at younger ages. The Democratic Party platform endorses such measures. Even the president has looked at the exploding juvenile crime statistics and called for consideration of curfews in America’s largest cities and for monitoring every juvenile arrest involving a firearm. And these measures have begun to show encouraging results: in 1995 juvenile crime decreased 2.9 percent nationwide.
But not in New York. Though the New York State District Attorneys’ Association, the New York Law Enforcement Council, Mayors Koch, Dinkins, and Giuliani, Congressman Charles Schumer, Attorney General Dennis Vacco, Governor Pataki—even Governor Cuomo, hardly a law-and-order politician—have all pressed for reforms, the New York State Assembly has shot them down year after year. It has rejected lengthening sentences, giving prosecutors the power to seek arrest and search warrants, moving some violent juvenile offenders into the adult prison system, and permitting extensive recordkeeping and sharing of data on teen criminals. It has allowed the number of residential facility beds in the juvenile justice system to remain constant at just over 2,000 during the 1980s, while teen crime soared and the number of adult prison beds tripled. (In 1995 New York City’s Family Court ordered more placements than there were available beds in the whole system, which handles youth for the entire state, not just the city.) The one reform the Assembly did pass, after 13 years of pressure from Brooklyn assemblyman Daniel Feldman, is the limited fingerprinting and photographing of juvenile felons, which, when it goes into effect in November, will give police and courts important new tools against repeat offenders.
But the big reform that the Democratic Assembly leadership put forth in 1994 went in the opposite direction: it sought, unsuccessfully, to have all first-time arrestees for many classes of robbery, assault, burglary, even criminally negligent homicide diverted from the courts entirely and sent by the Probation Department directly to counseling or community service. This suggests a legislature living in an intellectual time warp, wedded to theories of juvenile justice that the rest of the nation discarded long ago. Unfortunately for New Yorkers, these are theories with the gravest real-world consequences for ordinary, law-abiding citizens.
Surely it’s time for our Assembly leadership to get mugged by reality, as the expression goes, before the rest of us all get mugged in earnest.