Setting the 2016 Agenda: Criminal justice

At the end of the legislative session this summer, a number of criminal justice reforms that were debated throughout the year were left on the table.

Gov. Andrew Cuomo took matters into his own hands with two issues that were not resolved, appointing Attorney General Eric Schneiderman as special prosecutor in cases of civilian deaths at the hands of police, and separating 16- and 17-year-old inmates in state prisons from the general population through executive orders.

However, both measures were meant as temporary fixes and will need to be taken up in the Senate and Assembly come January.

Raise the age

In New York, people can be tried as an adult starting at the age of 16. The state is one of only two in the nation, the other being North Carolina, to treat people under the age of 18 as adults in the criminal justice system.

Numerous studies show that trying defendants under 18 as adults does not reduce rates of recidivism and can actually increase the likelihood that those adolescents, who are at greater risk of being sexually assaulted or indoctrinated by more hardened criminals, will become repeat offenders.

Assemblyman Joseph Lentol, chairman of the Assembly Codes Committee, introduced a bill last year that would raise the age of criminal responsibility to 18, would shift cases of 16- and 17-year-old offenders to Family Court and has a number of other provisions aimed at keeping kids out of the criminal justice system. It passed in his chamber but did not find support in the state Senate.

The assemblyman said he doesn’t see Cuomo’s executive order as a permanent solution, but was glad to see something done after his bill failed to gain traction in the Senate.

“It’s certainly not enough, but it’s major,” Lentol said. “It’s a major step to do because of what can happen to a young kid in jail.”

Lentol said his bill would establish a system that is fairer for teens and gives them a chance to be rehabilitated.

“We want to see the system fairer so that we punish bad kids in a way that’s appropriate for their age, in a way that makes sense according to their level of development,“ Lentol said.

Some Republican senators have argued that Lentol’s bill would put more pressure on the already overburdened Family Court system.

Lentol said Family Court should be bolstered to deal with teens who fall into the criminal justice system.

“If they’re going to be treated as children ... then you’re going to have to expand the Family Court so that they can deal with it,” Lentol said.

Still, without a shake-up in the Republican-controlled Senate, Lentol said he is not holding out hope that the bill will get through.

“It’s probably not going to happen unless we change the political landscape, I’m afraid,” Lentol said. “We’re still going to push for it.”

He may have good reason. State Sen. Patrick Gallivan, chairman of the Senate’s Crime Victims, Crime and Correction Committee, was noncommittal when discussing the possibility of raising the age of criminal responsibility, though he said Cuomo’s executive order to separate out children under 18 in adult prisons was an appropriate move.

Gallivan stressed that addressing issues of recidivism, especially with adolescents, needs to be a top priority, but said he isn’t certain that the Assembly bill is the best way to address the problem.

“I don’t necessarily agree that we should raise the age of criminal responsibility per se,” Gallivan said. “But I recognize that it’s a common goal of all of us, or I believe that it should be a common goal, to reduce recidivism and try to ensure that our correctional facilities are actually correcting and rehabilitating.”

Special prosecutors

The push to appoint a special prosecutor from many community and activist groups comes after a series of high-profile incidents around the country in which civilians have died during interactions with police. The death of Eric Garner, who was put in a chokehold after being approached by police for selling loose cigarettes on Staten Island, became one of the cases that grabbed national headlines.

Both Gallivan and Lentol said they are satisfied with the governor’s executive order appointing Schneiderman and said Cuomo would likely have a tough time getting something through the Legislature.

Gallivan, a former sheriff in Erie County, said Cuomo was completely within his authority to appoint a special prosecutor, but he’s not sure the Senate would be in favor of enacting a law to expand the powers of the governor.?“I don’t see the Legislature pushing expanding the governor’s authority in that area, which is something that the governor was looking for through legislation last year,” Gallivan said. “It does seem though, now, that most people that are continuing to push that seem satisfied or at least placated at this point with the governor’s action.”

Still, Gallivan said, many people in the law enforcement community seem to remain uncertain about the consequences of the executive order.

“I think if the governor pushes it, clearly it’s something we’ll have to deal with on the agenda,” Gallivan said. “I think what you’ve seen from the Senate majority, for the most part, they’re opposed to the special prosecutor concept.”

Lentol also seemed satisfied to allow Cuomo to continue to use his executive power to extend the special prosecutor arrangement. The one-year appointment expires in July.

“It makes sense to have the attorney general do it,” Lentol said. “It also may make sense that you want the governor to make the appointment. Either way we’ll have to discuss that.”

The current arrangement works because the state does not need to provide the resources for staff, office space and other costs that come along with creating a new agency, Lentol said.

“We could pass a law that gives the power to somebody else, but then you have to equip that person, whoever it is, with resources,” he said.

And Lentol added that Cuomo can extend his executive order for as long as he likes, meaning that the Legislature would not have to take any action for the current policy to continue.

“It just makes sense to have the attorney general do it,” Lentol said, “because it’s already built into what they do.”