Criminal Justice Reforms – Debra L. Raskin

President’s Column, March 2015

As you read this, the Governor and legislative leaders are negotiating the State’s budget for the fiscal year beginning April 1st. And as has become customary, the Governor’s proposed budget legislation includes many public policy issues. This year, two of the important topics included in the proposed budget involve significant criminal justice policy considerations: raising the age of criminal responsibility, and addressing the aftermath of the Eric Garner grand jury determination. In both instances, City Bar committees worked together on position statements that we have submitted to the Governor and Legislature.

Eight City Bar committees collaborated on a report supporting the Governor’s proposal to raise the age of criminal responsibility in New York from 16 to 18. All but one other state sets the age of criminal responsibility at 18. Raising the age would channel 16 and 17-year old offenders into Family Court, with its better services and options, and into youth correction facilities rather than adult prisons, where young offenders may be more likely to learn to be career criminals than to take a lawful path.

Under the Governor’s proposal, which was based on the work of the Commission on Youth, Public Safety and Justice, cases involving youth under 18 would be heard in Family Court, with certain exceptions, such as violent felonies and vehicle and traffic offenses. Youth who are retained in adult court would have additional protections and receive age-appropriate treatment. The proposal also creates a new Youth Part in the superior court of every county that would hear the cases of 16- and 17-year-olds who remain in the adult criminal courts. Youth Part judges would receive specialized training in adolescent development and research-based recidivism prevention. Youth Part judges would have expanded discretion to remove cases to Family Court, or to retain cases in the Youth Part but to apply all of the provisions and protections of the Family Court Act, upon finding that such treatment is in the interest of justice.

We based our support on the following overarching concepts: that raising the age will reduce recidivism; that adult jails are dangerous for youth; that alternatives to incarceration are a more effective and cost-efficient way to reduce youth recidivism than detention and incarceration; that youth charged as adults face an array of collateral consequences that prevent them from moving forward with their lives; and that raising the age will help reduce racial and ethnic disparities in our criminal justice system. Raising the age of criminal responsibility also makes scientific sense: research shows that adolescent brains do not develop full decision-making capacity until into the mid-20s. Our youth should not be saddled with the lifetime consequences of adult convictions and deserve the opportunity to participate as full members of their communities. We urge the Legislature to pass the Governor’s proposal.

The Governor’s budget legislation also attempts to address the concerns prompted by the Garner grand jury determination by including the Criminal Justice Reform Act of 2015. The proposal specifies a number of changes that were reviewed and considered by six City Bar committees. Perhaps the most significant  provision of the proposal would establish a Governor-appointed “independent monitor” who would be responsible for reviewing the grand jury investigations of cases involving the police-related death of an unarmed civilian. The independent monitor would then have the power to refer cases to the Governor for the purpose of appointing a special prosecutor when it was found that the district attorney inappropriately declined to prosecute or the grand jury presentation did not conform to the law. While we commend the Governor’s effort to address the critical issue of the public’s perception of and confidence in the criminal justice system, we oppose the creation of an independent monitor as both logistically problematic and inadequate.

The review by an independent monitor with a possible referral to a special prosecutor is an after-the-fact solution that is too cumbersome and distant from the time of the grand jury presentation to be of real value. Since the independent monitor would take into consideration both the witnesses and evidence the prosecutor chose to present to the grand jury as well as the prosecutor’s report, it is likely that the independent monitor’s report would be little more than a justification for the actions the prosecutor took. The possibility of a rubber stamp is particularly  likely because the independent monitor can recommend a special prosecutor only where “substantial error” creates a “reasonable probability” of an indictment such that the presumption of regularity afforded to such proceedings can no longer apply, or if the independent monitor uncovers newly discovered evidence “of such magnitude that there exists a reasonable probability that had such evidence been presented” an indictment would have resulted. A two-step process also creates concerns about the due process rights of police defendants because they would be subject to a system of review different from that accorded every other defendant.

If the goal of the independent monitor proposal is to assure the public that the process for handling cases involving deadly force by police against unarmed civilians is fair and unbiased, we believe further study and consideration should be given to the role of an independent special prosecutor in such cases.

In addition to opining on these budget proposals, the City Bar hosted a panel discussion on March 3rd on NYPD policies and improving police/community relations, which featured a panel reflecting diverse efforts to come to grips with this fundamental issue. The time is ripe for a robust public discussion of our criminal justice system that involves all stakeholders, and we urge the Governor and Legislature to facilitate that discussion this session so that meaningful reforms can be achieved. We will continue to issue reports, conduct programs, advocate legislation and otherwise work toward achieving a fair and responsive criminal justice system.