For five years, “Raise the Age” legislation has been proposed to eliminate New York’s current practice of prosecuting all 16 and 17-year-old juvenile offenders as adult criminals. And for five years, Republicans and a handful of rogue Democrats in the State Senate have blocked it. This year was supposed to be different — on its face, the initiative has bipartisan support, and Governor Andrew Cuomo gave it a strong endorsement during his State of the State speech in January. But one month before the state government must settle on a budget, the fate of Raise the Age is still very much uncertain.
The legislation, initially sponsored by Democratic State Senator Velmanette Montgomery, has been held up in committee since 2012, first because of the Republican Senate majority, and now, by the breakaway Democrats known as the Independent Democratic Conference, or IDC, led by State Senator Jeffrey Klein.
Senator Montgomery’s legislation, Senate Bill S4121, would raise the age of criminal responsibility for all offenses to eighteen and channel juvenile offenders into Family Court, where the emphasis is on rehabilitation rather than punishment. Montgomery’s legislation also features a manual override, authorizing the full adult criminal prosecution of offenders where exceptional circumstances warrant and the local District Attorney requests it.
Even though Democrats, who support Montgomery’s bill, held numerical superiority over Republicans in the State Senate until one senator left for a city council seat, the eight IDC members led by Klein align with the Republicans, which means that no bill gets to the floor of the Senate without Republican approval.
“Just getting it through the Senate [Judiciary] committee has been a no-go,” Montgomery told the Voice, though she added hopefully that Brooklyn State Senator and IDC member Jesse Hamilton is now a co-sponsor of his legislation.
“If there is any advantage with Hamilton and Peralta on the IDC is that they’ll be able to talk to Klein to get it passed,” Montgomery said. “It’s just how much can we expect from Hamilton and Peralta? For them to be able to convince Klein? That’s where we are.”
“Right now, we’re working on Raise the Age,” Hamilton told the constituent. “We got 23,000 young black men and women who are incarcerated every year in New York City, and have six times the rate of suicide. They’re being sexually abused,” he said.
The constituent interrupted Hamilton and asked, “Are the Republicans going to vote for Raise the Age?”
“Yes they are,” Hamilton responded. “Yes they are.”
Hamilton then named two upstate Senate Republicans, Patrick Gallivan and Fred Akshar, and said they had “spoke up” in support of Raise the Age. “And they say this has to become law. This has to be change. The only question right now is whether or not we go through criminal court or family court,” Hamilton added.
When the Voice asked Senator Hamilton whether he currently stands by what he said, Hamilton’s spokesperson Ean Fullerton answered: “Yes, he does.”
A spokesman for Akshar did not respond to a request to confirm Hamilton’s account.
A spokesman for Senator Gallivan, Jim Ranney, hedged on whether the Senator supports Raise the Age: “Sen. Gallivan continues to discuss the issue with his colleagues in the Senate and he has not made any final decision on the issue at this point.”
Senator Peralta issued a statement through his spokesman, Juan Soto, that said
“Raise the Age is one of my priorities for this legislative session, as it had been in the past. We should not prosecute teenagers as adults, we need to rehabilitate, not jail them, so they can have a second chance in life.”
The Voice also asked Queens Senator Tony Avella, another IDC member, to weigh in. Avella said he supports reforming “the state’s archaic law,” but only for non-violent offenders. He supports legislation, he said, that “diverts juvenile offenders of non-violent crimes to the family court system and provide increased levels of support and resources to give young people a chance at redemption for a future that goes well beyond a small mistake they may have made as a child.”
According to the Journal News, Senator Klein, the IDC leader, does not support Avella’s approach. The IDC has yet to introduce a Raise the Age bill, but Klein, the Journal News reported, himself “bent over backwards during a Feb. 21 round-table discussion in Ossining to tout the concept of keeping kids under the Criminal Court umbrella, even as various children’s advocates assured him that Family Court could handle the caseloads, and would bring the kind of expertise needed to ensure key support for youth and families.”
Asked about his position on Raise the Age, Klein released a statement saying that “our 16- and 17-year-olds deserve to live productive lives without the stain of incarceration forever following them, and we are hard at work negotiating the best solution to ensure that our teenagers are treated appropriately.”
When pressed to explain what exactly that language really means, Candice Giove, Klein’s spokesperson, whose official title is “IDC Director of Communications,” declined to say.
On Monday, the State Senate agreed to include Raise the Age in its budget, but the details still unclear. “We have to make sure that nonviolent offenses, as well as misdemeanors, are heard in family court for 16- and 17-year-olds,” Klein told NY1. “We have to move toward rehabilitation, not incarceration.”
Meanwhile, as Senator Hamilton noted in his statement, Raise the Age negotiations are part of the budget process, which must by law be completed by April 1. Going into the budget process, Assembly Democrats have reiterated their commitment to keeping New Yorkers too young to drive and vote out of criminal courts.
Governor Cuomo sets the agenda for budget negotiations by including funding for favored legislation in his proposed budgets, or not. (Cuomo prides himself on passing four on-time budgets in a row, and barely missed a fifth by three hours.)
The governor says he supports Raise the Age legislation, in principle. In his January 2017 State of the State address, delivered in New York City, he promised to “Raise the Age of criminal liability from 16 to 18.” But according to the governor’s website, his support for Raise the Age does not include “the gravest crimes of violence.”
The Governor’s press office, when asked whether he supports Senator Montgomery’s Raise the Age legislation, Senate Bill S4121, answered by pointing to the Raise the Age bill passed by the Assembly on February 14. That legislation, A04876, like the Governor’s specific proposal, excludes violent felony offenses, and routes non-violent felony offenders through a “youth part” of adult criminal court.
A compromise like this would give Democrats the slimmest of pretexts to claim victory, while allowing Republicans to maintain control.
Alicia Barraza ’s only child, Benjamin, killed himself in a New York State prison in 2014, ending a hellish four-year odyssey through the criminal justice system that began when he was 17 years old, supports the more robust version of the reform that includes violent offenders.
“I think violent offenders should not be passed over by Raise the Age because they are the group that needs the most help, and they certainly will not get it in the adult criminal system,” Barraza told the Voice.
“I sincerely hope that the IDC and Republicans quickly come to a resolution and pass Raise the Age this session. But it should be done correctly and young offenders kept in the family court system where there are more opportunities for successful rehabilitation.”