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It's Time To Raise The Age

New York is currently one of only two states -- the other being North Carolina -- that automatically treats 16 and 17-year olds as adults when they are alleged to have committed a crime. This is not good company to be in. Albany is currently considering "Raise the Age" legislation that would raise the age of juvenile jurisdiction to 18, ensure that no 16 or 17-year olds are placed in adult jails, and should originate as many cases of 16 and 17-years olds in Family Court as possible. It must pass.


There are a lot of great reasons to support Raise the Age. Kids don't belong in adult prisons. We shouldn't be giving non-sealable criminal records to young teenagers. There are better resources for intervention and diversion in Family Court. Raising the age of criminal responsibility has proven to greatly reduce recidivism. One argument that gets lost in the shuffle is the contradictions within the Penal Law itself.


Take for example, "Endangering the Welfare of a Child." One definition is knowingly acting in a manner injurious to "a child less than seventeen years old." (See Penal Law § 260.10(1).  It is right there in the title and definition of the crime. A child is a person "less" than 17 years old. Another definition of "Endangering the Welfare of a Child" is to allow your child, for this purpose statutorily defined as anyone under the age of 18, to become "incorrigible." (See Penal Law § 260.10(2) and Family Court Act § 712 (a)). Even within the same statute, a "child" is defined differently.


Consider this absurd, yet absolutely plausible, scenario. On Monday, dad has a friend in town and wants to meet him for a drink. He leaves his 16-year old son home for a few hours but forgets that he left the liquor cabinet open. He comes home to a puking 16-year old, a gaggle of cops, and a charge of "Endangering the Welfare of a Child."


The next day, that same 16-year old is hanging out with a group of older kids. After much persuasion, he agrees to go to the Apple Store with them to steal the new IPhone. Once arrested that 16-year old, yesterday too immature to be left home alone for a few hours, has all of a sudden morphed into a sophisticated criminal who will automatically be charges as an adult. Dad now gets a second charge for "Endangering the Welfare of a Child" because he let his son become "incorrigible" and "habitually disobedient."


Thus, dad is on his way to criminal court because he failed to properly supervise his son, statutorily considered a child, who is also on his way to criminal court because he is statutorily considered an adult.


This is hardly the only place in the Penal Law that exposes this inconsistency. You can't give a graphic nude picture to a 16-year old because a 16-year old is just a child. (See Penal Law § 235.20). In fact, the way the Penal Law is written a 16-year old could theoretically be arrested, sent to Rikers Island, and tried in criminal court for sending an explicit "selfie" to her 15-year old boyfriend. The Penal Law also says that a16-year old is not mature enough to make decisions about whom to have sex with. (See Penal Law §§ 130.25(2); 130.40(2)).


These protections exist because there was a policy determination that 16-year olds are impressionable, easily manipulated, and too immature to be trusted to make good decisions for themselves. That same 16-year old does not magically and retroactively get better judgment because they committed a crime. Yet the Penal Law pretends that they do. This is indefensible as a matter of not just public policy, but logic and common sense.


North Carolina is moving quickly. If Albany does not move even quicker, New York will be the last state in the nation to recognize that 16 and 17-year olds do not belong in adult courts and adult jails. This is really bad company to be in. It is time to pass Raise the Age and start treating 16 and 17-year olds as the children that the Penal Law already recognizes that they are.

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Douglas Schneider was awarded Super Lawyers Rising Stars 2013 - 2015.