“Raise the Age” Bill Sharpens the Damaging Distinction Between People Convicted of “Nonviolent” and “Violent” Offenses

Finally, state actors are being pushed to address the collateral consequences of the behemoth that is the American carceral state. The same bipartisan consensus that saw more prisons and jails as a solution to the growing capitalist crisis of the 1970s is today seeking to reduce incarceration through a focus on economic cost cutting. In New York, recent reforms like “Raise the Age” are indications of the effort to build a more “efficient” and “effective” criminal legal system, which of course, doesn’t address the role that criminalization plays in managing the urban poor, especially in the face of increasing economic insecurity and the crisis of a jobless future that confronts our youth.

On April 10, after years of stalling in the state legislature, New York Gov. Andrew Cuomo has finally signed into law the “Raise the Age” legislation that extends the age of criminal responsibility to 18 years of age. The State Assembly approved the bill by 81-40 votes, and it will move all cases involving 16- and 17-year-olds charged with misdemeanor and nonviolent felony cases to Family Court. New York is one of two states (the other being North Carolina) to treat 16- and 17-year-olds as adults. While liberals are celebrating the passage of this bill, as South Bronx residents who are actively involved in building collective power in our neighborhoods to challenge the institutions that exploit us, we see this bill as a toothless reform which does not really address the state actors who are actively involved in the criminalization of our youth: the police and the prosecutors.

Historically in the United States, criminalization has reinforced and naturalized race and racism. When Kalief Browder committed suicide in June 2015, our hearts were heavy with grief; we were reminded of James Baldwin’s indictment of police forces in the wake of the Harlem riots as an occupying army in our neighborhoods. We know all too well that to be poor and Black in the US will get you killed. In a ceremony in Harlem commemorating the passage of the bill, Governor Cuomo recalled Kalief Browder’s tragic death as the main impetus for this legislation. Looking at Kalief’s brother, Akeem, he said: “Your brother did not die in vain…. Your brother died to make a social change, and he has.” Yet, ironically, Kalief was charged by the Bronx District Attorney’s office with assault, grand larceny and a robbery at 16 years old, the latter charge technically considered a violent felony that is not covered by this most recent bill. Under this new legislation, teenagers like Kalief who are charged with robbery will continue to be processed in Bronx Criminal Court.

In the Bronx, while low-level misdemeanor cases among 16- and 17-year-olds have declined, felony robberies are on the rise. The clerks and prosecutors at the Bronx District Attorney’s office tasked with writing up formal criminal complaints are increasingly treating cases involving conflict between teenagers as “felony robberies” as long as they involve a show of “force” which can include a shove, a push or an item of personal use being stolen. The least serious robbery charge can lead to a maximum of two to seven years in prison. Furthermore, like most criminal legal system reforms in this moment, this legislation does not challenge the aggressive police practices that criminalize young people, but instead only sharpens the distinction between “nonviolent” and “violent” offenses that continues to have devastating consequences for our youth today.

According to the Division of Criminal Justice Services, in 2016, about 14,500 16- and 17-year-olds were arrested in New York City alone. Close to 85 percent were for misdemeanors and nonviolent felonies. In the basement of the Bronx “Hall of Justice,” an imposing all-glass building on 161st Street, 16- and 17-year-olds waste their entire day waiting for the judge to call their case. Their parents, who often accompany them, sullen looks on their faces, wait to talk with public defenders who they are usually meeting for the first time. Most Bronx residents work jobs that provide little to no job security, and taking the day off could potentially get them fired. Young people are expected to show up to court at 9:30 am, and being late has serious ramifications — including a warrant being issued for your arrest. The charges young people face in Bronx Criminal Court include: jumping the turnstile, assault, small possession of marijuana, criminal trespassing and petty theft. It is not unusual to see young people appearing in Criminal Court with a criminal trespass charge because they could not present identification that proved to the arresting police officer that they lived in the building in which they were stopped.

The supporters of this legislation would argue that 85 percent of cases will now be transferred to Family Court, sparing young people the consequence of a criminal record. While that is good news, we should also keep in mind that due to a series of reforms starting in 2012, most low-level misdemeanor cases involving 16- and 17-year-olds in Bronx Criminal Court are already usually dismissed or diverted to community sanctions without the collateral consequences of a criminal record. So, more than anything, it is the process of going to court that constitutes the real punishment. Under the new legislation, young people would still be processed through the court bureaucracy — this time, however, in Family Court.

Secondly, “Raise the Age” legislation does not challenge the role of the prosecutor, and most importantly, draws a sharp distinction between “nonviolent” and “violent” offenses. Bronx Criminal Court also hears nonviolent felony cases like burglary, drug possession and forgery involving 16- and 17-year-olds. Many of these cases receive probation (if they are lucky), and in other instances, jail and prison time. According to recent coverage by The New York Times, under the new legislation, these charges would continue to be heard in Criminal Court and then automatically sent to Family Court after 30 days unless a district attorney proved “extraordinary circumstances,” a term that is unclear and undefined. In this process, the prosecutor maintains the power and authority to determine which criminal cases will get diverted to Family Court. The outcome of the legislation was clearly a compromise with district attorneys and law enforcement agencies that have been up in arms about raising the age of criminal responsibility to 18. For example, Onondaga County District Attorney Bill Fitzpatrick has vehemently opposed the bill, stating this about 16- and 17-year-olds affected by this legislation: “They’re not little shoplifters or fare beaters, they’re gangsters, they’re murderers, they’re rapists, they’re burglars, they’re violent thugs and they don’t deserve to receive a pass from the New York State Legislature.” Here, Fitzpatrick shares a lot in common with former New York City Police Commissioner Bill Bratton, who has continually defended arrest for petty crimes as effective crime-fighting tools that stop more serious criminals.

Another way in which the legislation favors prosecution is that the criminal record is not fully erased, which was initially one of the major factors propelling different groups to support the legislation in the first place. Leading up to the bill’s passage, prosecutors maintained that previous criminal record was important to determine if a young person would recidivate. For instance, Monroe County District Attorney Sandra Doorley argued that prosecutors need to know the background of a defendant to make sure they would not reoffend again. As Alexandra Cox has noted, the new legislation “allows a crime committed as a youthful offender to be invoked and later counted for towards more severe sentencing if the young person is convicted of a violent felony.” So, in reality, the previous arrest charge is still tracked and registered by the court system and can be pulled up at the whim of the prosecutor and be used to enhance the penalty for young people charged with “violent” crimes (which is determined by prosecutors). The FBI’s Uniform Crime Reporting Program defines violent crime “as those offenses which involve force or threat of force.” In the Bronx, a growing number of teenagers are arrested and charged with robbery, which is a violent felony and not eligible for processing through Family Court under the new legislation. Here, the prosecution will continue to exercise their growing power to determine which cases are worthy of being diverted to Family Court.

Lastly, while transferring criminal cases over to Family Court is often seen as a positive move, the new bill relies on the court to address structural issues that are rooted in the criminalization of poverty and aggressive policing tactics. Relying on Family Court will also most likely expand the role that probation officers, social workers and increasingly nonprofit staffers play in the lives of Black and Brown youth. Social workers and probation officers exercise a softer form of social control; increasingly they rely on “risk assessment” tools to intensify their level of supervision and involvement in daily lives of young people, and they use cognitive behavior strategies to manage youth behavior that they see as the root cause of their “criminality.” As residents of the South Bronx, we know that it is not young people and their behavior that are the problem, but a system that criminalizes poverty. No one should be arrested for not having money to pay the subway fare, let alone be processed in any type of court for it.

Today, our youth face deeper structural issues: poverty, racism, police brutality, inadequate housing and low-paying service sector jobs — all of which cannot be addressed through legislative reform. They require collective action and an organized political force that can demand free housing, education and public services for all, and challenge local politicians that are too quick to use our young people as the poster-children for their political power plays. It’s clear that it was the criminal legal system, the 48th precinct, the Bronx District Attorney and Riker’s Island that killed Kalief Browder. Our goal should not be an “efficient” criminal legal system. It should be a world where we do not have to struggle for bare survival and have our lives managed by a system that dehumanizes us daily.